CONSIDERATION
38 The appeal grounds have been set out in full as they neatly encapsulate the argument advanced for Mr Ali, but it is possible to expand a little on that argument.
39 It is important to understand that the essence of Mr Ali's case is that the date of completion is not what the university considers it should be. Rather, it is what Parliament says it is. This is the central point on which I agree and, in respect of which, the appeal should be upheld. It is entirely appropriate for the university to be of the view for its purposes that completion does not take place until there has been ratification by a board of examiners, although there was no evidence as to what that ratification involved. Whatever the university's entirely justifiable view might be as to the formal date of completion, it is the statute and the regulations which are to prevail for the purposes of this case in prescribing the point in an applicant's progression through their studies, and the university's assessment of that progress, at which completion occurs. Completion, for the purposes of reg 1.15F, is expressly directed to the satisfaction of the academic requirements of a course.
40 The Minister argues that the basis upon which a person will have satisfied the academic requirements for a relevant award is determinable by the education provider and no one else, citing Sapkota. As a consequence, the Tribunal was not in a position to reach its own view, independently of the education provider as to whether and when those requirements have been met. The relevant date, the Minister says, is the date when the educational institution decides the academic requirements have been met, namely, the date on which the results are finalised by the educational institution. It is only after that date that a student would be able to contact the educational institution to find out whether the student had satisfied the necessary requirements. The Minister stresses that the Migration Regulations do not impose or determine what is necessary to establish that an applicant has, in fact, satisfied the academic requirements of a course and that is clearly a matter for the education provider. That was not a matter that was satisfied on Mr Ali satisfying his final unit of study on 27 February 2018, according to the Minister.
41 It is entirely reasonable for the university to take the view that nothing is set in stone until that date, but it is not the answer to the question of analysis required by reference to the Migration Regulations. For the Tribunal to rely only upon only the opinion of the university would be to, in effect, act under dictation. This is not permissible. As McLure JA noted in Re Romato; Ex Parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 (at [24]-[25]):
24 There is no suggestion that the Acting Deputy Director was not duly authorised under s 15 of the Act to consider and determine the applicant's application for an ETP. He being duly authorised, it is he who must consider and determine the application. He will commit a reviewable error if he acted under dictation: Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54. The usual circumstance in which a person acts under dictation is where a third person has given a direction as to the manner of exercise of the power as in the Ansett Transport Industries case. However, at common law, dictation can also occur where a decision-maker felt obliged to decide a matter in a particular way because of another's conclusions in relation to the matter even though the other person had given no direction that such an approach should be followed: Evans v Donaldson (1909) 9 CLR 140.
25 The rationale for the rule against dictation is the same as that which prohibits delegation of a decision-making power in the absence of express or implied authority to do so. Both involve an improper abdication of decision-making responsibility.
(Emphasis added and in original.)
42 A related passage from Romato was recently approved by Steward, Colvin and Abraham JJ in Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38; (2020) 275 FCR 413, where their Honours said (at [39]):
As can be seen from the PAM3 policy, the relevant part of it seeks to address reg 1.20. The policy is not directed to the discretion to be exercised in cl 820.221(4). It is unnecessary in resolving this appeal to address the ambit of the discretion in subcl (4). Whatever the content of the considerations to be taken into account in the exercise of the discretion in relation to the approval in cl 820.221(4), the PAM3 policy is not directed to that question. There is no reference to the content of any discretion, and no reference to reg 1.20J which places a limitation on the approval of sponsorship in relation to applications for a visa of this nature. Moreover, in so far as the PAM3 policy relates to establishing a nominated person as a sponsor, for the reasons above, this aspect of the PAM3 policy is inconsistent with the Regulations: Re Romato; Ex parte Mitchell James Holdings Pty Ltd [2001] WASCA 286 at [29] per McLure P with Wallwork and Steytler JJ agreeing.
43 Similarly, in this instance, it is the Minister or, in turn, the Tribunal who is required to reach a state of satisfaction as to the completion date under s 65(1)(a)(ii) of the Migration Act, when read with reg 1.15F of the Migration Regulations. Clear words would be necessary to enable that state of satisfaction to be stipulated by the university. There are no such words present. The statutory criterion must be determined and applied by the Tribunal to the evidence before it. Whatever the university may say about its requirements and procedures, the task for the Tribunal is to apply the words of the Migration Regulations. This is especially so in the circumstances where the Migration Act and Regulations do, where necessary, expressly provide for a scheme for an external opinion to bind the Minister or a tribunal. It may be inferred that in the absence of such express scheme, in light of the state of the law, any external opinion of this nature will not be binding.
44 Section 505 of the Migration Act enables the Migration Regulations to prescribe when the Minister or tribunal, in deciding whether a visa applicant satisfies a criterion, must get an opinion from an external person. The Migration Regulations may also require the Minister or tribunal to take that opinion to be correct. That is so, for example, in the case of medical opinions (reg 2.25A) and opinions about family violence (reg 1.23(10)(c)). However, even in these instances, the courts have closely guarded the limits of this deeming function of an external person. The Minister or tribunal is 'only entitled and obliged to take that opinion as correct if it is an opinion of the kind authorised by the [Migration] Regulations' and 'if the opinion is vitiated by error of law, the delegate errs in taking it as correct': Minister for Immigration and Multicultural Affairs v Seligman [1999] FCA 117; (1999) 85 FCR 115 per French, North and Merkel JJ (at [66] and [69]). See also Ramlu v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1735; (2005) 195 FLR 203 and Han v Minister for Home Affairs [2019] FCA 331. Or as more colourfully observed by Katz J in Campbell v Metway Leasing Ltd [2001] FCA 1311; (2001) 188 ALR 100 (at [59]) '[t]here is too much of this damned deeming'. The power of the Tribunal to adopt the university's view as the view the Tribunal must reach is not present in this regulation and is not readily found or casually applied.
45 While it will of course be incumbent on the Tribunal to have due regard to the evidence provided by the university, it must do more than simply look for words such as 'completion date' or similar and take this at face value. Such an approach ignores the Tribunal's task which is to ascertain when completion occurs as that word is defined in the Migration Regulations, not just when the university is of the opinion that it occurs for its purposes. The primary judge (at [29]) is, with respect, correct that that the authorities are clear that the date of completion must be objectively ascertained, but this proposition is inconsistent with his Honour's reasoning (at [22] and in Llanos at [21]) that completion does not occur until the university asserts that it occurs. Again, with respect, such a test is not an objective one and could lead to the rather perverse result that different institutions may consider completion to be perfected at different points in their internal process of evaluation, ratification and conferral of a degree/course of study.
46 In my view, the correct formulation of 'completion' is that expounded by Burchardt FM in Venkatesan at [15] and [17] which warrant repeating here, paying particular attention to his Honour's use of the words 'results' and 'credits':
15. In my view, the proper meaning to be ascribed to the item is 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.
…
17. To adopt what I hope is a commonsense approach, there was nothing more for the Applicant to do of an academic nature after 2 August 2006. What was required, admittedly, were certain steps, but 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.
47 Mr Ali says the statutory criterion properly understood and applied to the evidence before the Tribunal resulted in the Tribunal and the primary judge wrongly deferring to the date identified by the University. Mr Ali's argument is that the true time of completion under cl 485.231(3) is when an applicant has undertaken all study, course work and exams etc necessary for the degree and that work has been assessed as satisfactory by the university. Assessment by an applicant's immediate academic supervisor with respect to each unit of study is said to be sufficient, such that completion occurs when a student's final unit of study is assessed as satisfactory by the relevant academic supervisor.
48 Mr Ali contends such an approach is consistent with the language of cl 485.231(3), referring to 'study for' a degree, and the language of reg 1.15F(2), which refers to the 'academic requirements' of a degree. He contends and I accept, that each expression is comfortably met by study assessed as satisfactory and grounding the award of a degree. Neither expression is apt to embrace subsequent ratification which, while no doubt essential from the University's perspective for confirming that the degree or qualification can be officially conferred, does not require any academic effort on the part of the student, nor actual evaluation of that effort. That evaluation has already been conducted by the academic supervisors for each unit. For the purposes of the regulations, there is no reason to consider ratification to be more than an administrative process, albeit an important one, necessary for the award of a degree.
49 To the extent that the primary judge considered (at [22]-[23]) that ratification of the course of study as a whole is consistent with what Cowdroy J said in Sapkota (at [25]) to the effect that 'the final piece of assessment has to meet the institution's requirements for progression through the course', I consider this, with respect, to be an error. When Cowdroy J's statement is read in the context of the whole sentence and paragraph in which it appears, it is clear his Honour is referring to the achievement of a satisfactory grade in the final unit (i.e., not a fail grade) when his Honour used the phrase 'requirements of progression through the course' (emphasis added.).
50 Thus, applying Venkatesan (at [17]), there was nothing more for Mr Ali to do of an academic nature after he sat his final exam for his final unit. Similarly, there was no further academic evaluation of Mr Ali after his academic supervisor had assessed him as having successfully completed his final unit of study. This clearly occurred prior to ratification on 5 March 2018. At the latest, it occurred in the early minutes of 27 February 2018.
51 The difficulty, in my view, with the Minister's contention that completion occurs only when the university has satisfied itself at the time of ratification, is that that is precisely what had been achieved by the supervisor. There was no evidence at all as to what actually took place in the process of ratification, but the terminology itself tends to suggest that something unusual would have to arise for the Board of Examiners not to ratify the assessment given by the supervisor.
52 It was put in oral submissions by both parties that it would be conceivable that a board of examiners may not ratify a student's course of study by reason of some form of academic misconduct, such as plagiarism or cheating. In this situation, Mr Ali submitted that the earlier purported completion would effectively be revoked by ratification. The Minister submitted this would have the result that completion was only provisional and could be displaced by a board of examiners, which was effectively a concession that completion did in fact occur at ratification. On reflection, I consider this hypothetical analysis to be a distraction. It could only arise in the narrow circumstance where academic misconduct is discovered after a student has completed their final unit, but before ratification occurs, otherwise it is doubtful that an applicant would be able to demonstrate satisfactory completion of all units in any event. To my mind, such a finding of academic misconduct would not 'undo' completion unless it was determined that the consequence was that the student had to engage in further study (i.e., re-take some units). But such a discovery of misconduct could equally arise after ratification had occurred and lead to the same dilemma. In any event, adequate protection is afforded by the requirements of cl 485.231(1) and cl 485.231(2), which must be met independently of cl 485.231(3). A student found to have engaged in academic misconduct would not have their qualification conferred or awarded until the matter was resolved. In no way was it suggested that this situation arose in the present case.
53 The Minister says that Mr Ali's argument proceeds on an assumption that a supervisor will assess a relevant piece of work, but he argues there is no basis for that assumption. In my view quite to the contrary, it is clear that the publication of the pass mark by the academic supervisor is what triggers the subsequent formalisation of the ratification and conferral. It is the actual substance of the educational component, sitting the exam or submitting a thesis and being given a pass mark that constitutes completion of the academic requirements. There would appear to have been clear evidence in this case, with the University providing the letter on 28 February 2018 advising that Mr Ali 'requires a total of 0 credit points in order to complete the above course'. It was an error on the part of both the Tribunal and the primary judge to ignore this statement and rely only on the subsequent statement by the University that completion, for its purposes, would occur on 5 March 2018. That was not the date of completion within the meaning of that word under reg 1.15F which is expressly directed to satisfaction of academic requirements only, not the subsequent administrative steps taken by the University: Venkatesan (at [15]); and Sapkota (at [24]).
54 Additionally, Mr Ali contends that his approach prefers substance over form, which, importantly, the note to reg 1.15(2) suggests was intended. I accept this submission. Equally, it supports good administration in the sense that an applicant may seek a visa as soon as the applicant has effectively completed the degree. An applicant who moves quickly, rather than slowly, is rewarded. Continuity of visas is facilitated because an applicant may seek a new visa as soon as his or her study is completed, rather than awaiting processing, during which time his or her student visa may expire. This, indeed, would have occurred in this very case and cannot be consistent with the intention of the statutory regime.
55 The more difficult argument for Mr Ali is that all the requirements for completion had occurred by 26 February 2018, rather than 27 February 2018. In this regard, the Minister argues that as 27 February 2018 was the date of publication by the University of Mr Ali's satisfaction of his final unit of study, that is the earliest possible completion date. The Minister argues that 27 February 2018 is the only date on which Mr Ali's satisfaction of his academic requirements could have been made publicly available. The point of satisfaction, the Minister argues, by the educational institution must be objectively ascertainable. Whether that be by the publication of results or by the Board of Examiners ratifying the matter, or some other event, it must be able to be objectively viewed. What was not sufficient, in the view of the Minister, would be for the matter to be remitted to ask the Tribunal to engage in some form of speculation and to arrive at a conclusion that has no objective verification.
56 The Minister contends that Mr Ali's submission that by virtue of the actual chronological time when the results were published, it must be that the case that the decision was made the previous day at the latest disregards the University's own answer as to when the relevant course of completed. The Minister says it is not surprising that a decision or result is identified as being made when it is published. It would not be open to conclude that an education provider completed a relevant assessment at a date earlier than that identified by the provider as being the date of publication, the Minister argues.
57 In my view, this submission suffers from the same difficulty as the Tribunal relying upon the University's opinion as to the date of completion being the date of ratification of 5 March 2018. This approach simply draws attention to a statement of the University and relies on it as being conclusive of the view to be reached by the Tribunal. In any event, as Mr Ali contends, that submission should fail for overstating the significance of the publication date. Properly understood, the statutory criteria as analysed in Sapkota asked the question whether an applicant has undertaken all study necessary for the degree and that study has been assessed as satisfactory by the university. The date of publication of results could well indicate that an applicant's study has been assessed as satisfactory. However, as Sapkota demonstrates, this does not have the effect that publication of results is the only point in time from which it can be established that an applicant's study has 'passed muster'.
58 Another point in time may well arise from material before the Tribunal. In this case, the Tribunal and the Federal Circuit Court decided the correct date was 5 March 2018, which, in my view was incorrect. If it had decided in the alternative, which it did not, that 27 February 2018 was the correct date, then it could only do so by the same reasoning of relying, without more, upon the actual date of publication by the University, rather than assessing what the regulation means. The decision-maker is not, in reaching its state of satisfaction as to the point in time of completion, confined to the view of the university and should not displace its own state of satisfaction by the view expressed by the university. It should rely on the evidence before it, including sensible or ready inferences which should be drawn from the information. It is not necessary to conclude in this appeal what the date of completion was because it is sufficient to note that the Tribunal has approached its task on a misunderstanding of the statutory criterion and incorrectly reached the date of 5 March 2018. However, as Mr Ali argues, the ready inference in a case where results are published in the earlier minutes of a particular day is that the results were assessed as being satisfactory no later than the previous day. It may be that university staff are working at midnight on such matters, but it is not at all uncommon for courts to infer in the absence of evidence to the contrary, that business activities are conducted within business hours.
59 Mr Ali is correct that the process adopted in the Tribunal and the Federal Circuit Court and in the Minister's argument is to shift attention from the assessment of the final unit to the processing of course completion. In doing so, there is a departure from the language of Sapkota (at [24]) and a departure from the plain words of the Migration Regulations. 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'.
60 The evidence in this case is that not only was Mr Ali's final academic result released in the early minutes of 27 February 2018, he was also informed by his academic supervisor for his final until that he had passed the unit on the same day he completed his exam. In these circumstances, and in light of the reasons of this judgment, it cannot be concluded that any error with respect to the completion was immaterial because the earliest possible date was 27 February 2018. I do not consider, with respect, that either the Tribunal or the primary judge properly engaged with either of these aspects of the case.