It is a criterion for the grant of a Temporary Graduate (subclass 485) Visa (TGV) that the applicant satisfied the Australian study requirement in the six months immediately before the TGV application was made.
While this seems straightforward, there is often confusion about when the relevant six-month period starts (and ends), and when a course of education is ‘completed’ and the Australian study requirement satisfied. Further, the Department of Home Affairs’ internal policy is inconsistent with decisions of Australian Courts on these matters.
The criterion
Schedule 2 Criterion 485.231(3) provides:
The applicant’s study for the qualification or qualifications satisfied the Australian study requirement:
- in the period of 6 months immediately before the day the application was made; or
- if the Minister is satisfied that the applicant was unable to apply during the period mentioned in paragraph (a) because the applicant was outside Australia during all or part of the period commencing on 1 February 2020 and ending on 19 September 2020 -in the period of 12 months immediately before the day the application was made.
The six-month period
The Acts Interpretation Act 1901 (Cth) (AIA) creates general rules for interpreting legislation passed by the Commonwealth parliament. Section 36 of the AIA provides rules for how time is to be calculated when legislation prescribes a particular time for doing something.
Relevantly, where a period of time is expressed to begin before a specified day, the period of time does not include that day. This means that the last day of the six-month period prescribed by Schedule 2 Criterion 485.231(3)(a) is the day before the TGV application is lodged.
Section 2G(2) of the AIA provides rules for how a reference to a period of multiple months in legislation is to be calculated. It provides:
In any Act, a reference to a period of 2 or more months is a reference to a period:
- starting at the start of a day of one of the calendar months (the starting month); and
- ending:
- immediately before the start of the corresponding day of the calendar month that is that number of calendar months after the starting month; or
- if there is no such day—at the end of the calendar month that is that number of calendar months after the starting month.
This means that a two-month period commencing 15 January 2024 ends on 14 March 2024 and, applied in the reverse, a two-month period ending on 14 March 2024 commences on 15 January 2024.
The practical effect of this is that if you lodge a TGV application on 15 February 2024, the relevant six-month period prescribed by Criterion 485.231(3)(a) would run from 15 August 2024 to 14 February 2024. You will only be able to satisfy the Criterion if you ‘satisfied the Australian study requirement’ within that period. You will not satisfy the criteria for grant of a TGV if you satisfied the Australian study requirement before the start of the six month period or on or after the day your TGB application was lodged.
This interpretation was endorsed by the Federal Circuit Court of Australia (as it was then) in Mahohoma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2206 and Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1311.
Satisfying the ‘Australian study requirement’ and determining the ‘completion date’
Section 1.15F(1) of the Migration Regulations 1994 provides a person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed one or more degrees or qualifications. Sub-section (2) provides that ‘completed,’ in relation to a degree, ‘means having met the academic requirements for its award.’ This is distinguishable from the date of degree conferral. The relevant question, therefore, is when a person meets the academic requirements for the award of a degree.
The Department’s policy relating to satisfaction of the Australian study requirement generally states: The critical date on which a course can be said to be ‘completed’ is the date on which the results of the student’s final exams, or confirmation that the academic requirements of the course have been met, were available or published
The Department’s policy relating to the TGV criteria specifically states: The date of completion of the eligible qualification is the date the primary applicant was notified that all academic course requirements were met. The critical date, therefore, is the date on which the results of the applicant’s final exams or notice of completion of the course were available or published.
However, the Department’s policy is inconsistent with decisions of Australian courts about when a course of study is ‘completed.’ In Venkatesan v Minister for Immigration & [2008] FMCA 409, the Federal Magistrates Court (as it was then) had to determine whether a course was ‘completed’ before or after a student’s application for transfer credits (for units previously completed) was approved.
In that case, the Court found that ‘you complete the academic requirements for a course when you achieve the necessary results or credits to enable you to be awarded the relevant degree or diploma’ and that ‘the Applicant had already completed and relevantly passed the relevant proportions of his course that gave rise to his credits well before August 2006.’
The Court ultimately concluded ‘there was nothing more for the Applicant to do of an academic nature after 2 August 2006’ and that while there were further steps that needed to be taken (including the approval of transfer credits), ‘they were purely administrative steps that did not require any form of academic effort by Mr Venkatesan nor any evaluation of any such effort by the university.’
The Court’s conclusions in Venkatesan has been endorsed and adopted in the years since. However, there is an aspect of the Court’s reasoning in Venkatesan that appears inconsistent: Determining whether to approve an application for transfer credit, especially between institutions and countries, is not simply a ‘rubber-stamp’ and often involves an evaluation by the university as to whether the applicant’s previous academic efforts satisfy the requirements of their current degree. That being the case, it appears arguable that the university’s evaluation of the applicant’s academic efforts referable to the requirements of the degree being completed did not conclude until the transfer credits were approved. Nevertheless, the Court’s distinction between ‘academic’ and ‘administrative’ tasks and functions in Venkatesan have informed the development of the law since.
In the later case of Sapkota v Minister for Immigration and Citizenship [2012] FCA 981, the Federal Court of Australia reached the ‘same conclusion’ as the Court in Venkatesan. In doing so, the Federal Court found
There are two necessary elements to achievement of academic results. One part is the student submitting all relevant items for assessment to the education provider. The second part is the education provider assessing these items and determining for itself whether the student has in fact achieved the academic result and awarding a result.
The Court went on to state, ‘The relevant date is the date when the education institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the education institution.’ Further, contrary to the Department’s currently published policy, the Court stated:
Given that a decision as to whether a student has satisfied the requirements of a course is entirely a matter for the education institution, the point at which the student actually learns of the result, or the date when the education institution informs the student via letter, email or otherwise of the student’s results is not relevant for determining the date when a student has completed the academic requirements.
The issue was recently revisited by the Federal Court in the more recent decision of Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1311. In that case, the Court found that ‘completion’ for the purposes of satisfying the Australian study requirement and ‘completion’ for the purposes of a university’s procedures are different: Completion for the purposes of the Australian study requirement is determined by reference to s 1.15F(2) of the Regulations, while ‘completion’ from the perspective of the university is determined according to its policies and procedures. In those circumstances, the date of completion given by a university is not necessarily the completion date when it comes to assessing the TGV criterion.
The Court in Ali re-emphasised: The common sense and correct, with respect, construction flowing from Sapkota is that the decision-maker should be having regard to when ‘the student submit[ed] all relevant items for assessment to the education provider’ and ‘the education provider assessing these items and determining for itself whether the student has in fact achieved the academic result’.
Relevance to doctoral degree graduates
It is notable that decisions in Venkatesan, Sapkota and Ali all involved undergraduate degrees or masters degrees by coursework. It does not appear that any Court has attempted to answer the question of ‘completion’ in relation to a doctoral degree by research. This is important because the distinction between ‘academic’ and ‘administrative’ requirements for doctoral degrees by research are significantly more intertwined than in degrees conferred on the basis of coursework alone.
Further, a university’s policies and procedures regarding completion and conferral of a doctoral degree may require multiple submissions of a substantially identical thesis for assessment or evaluation by multiple individuals and entities. Identifying at which point the thesis is finally submitted and assessed may not be obvious, especially where a university’s policies require multiple submissions, including following achieving a ‘passing classification.’
If you intend to apply for a TGV following completion of a doctoral degree by research, we strongly recommend obtaining advice from an experienced migration lawyer.
