1502965 (Migration)

[2015] AATA 3270

1502965 (Migration) [2015] AATA 3270 (11 August 2015)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Dr Omair Mehboob

MRT CASE NUMBER:  1502965

DIBP REFERENCE(S):  BCC2015/44629

TRIBUNAL MEMBER:  Mary-Ann Cooper

DATE:11 August 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 11 August 2015 at 4:59pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 February 2015 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2.The applicant applied for the visa on 6 January 2015. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

1. The delegate refused to grant the visa because the applicant did not satisfy cl.485.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant satisfied the Australian Study Requirement in the 6 months ending immediately before the day on which the visa application was made. The delegate found that the applicant’s Diploma of Business was not a qualification of a kind specified by the Minister in an instrument in writing and his Master of Pharmacy degree had been completed more than 6 months before the day the visa application was made.

   4.The applicant appeared before the Tribunal on 2 June 2015 to give evidence and present arguments. 

   5.The applicant was represented in relation to the review and his representative appeared at the hearing by telephone.

   6.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post-Study Work stream which includes cl.485.231 of Schedule 2 to the Regulations (attached). This requires that the applicant holds qualifications of a kind specified by the Minister in an instrument in writing (IMMI 13/013): cl.485.231(1); and that each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing (IMMI 13/031): cl.485.231(2). In addition, the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made: cl.485.231(3). The issue in this case is whether the applicant meets cl.485.231(3).

3. The applicant has provided evidence that he completed a Master of Pharmacy at Charles Sturt University on 18 March 2014. Documents provided confirm that he also completed a Diploma of Business from Technical Education Australia on 15 December 2014.

4. As recorded in the delegate’s decision, a copy of which was provided with the review application, the delegate was not satisfied that the applicant met cl.485.231(3) because he did not complete his Master of Pharmacy, his relevantly specified qualification, in the period  of 6 months ending immediately before the date of his application.

5. At the hearing, the Tribunal noted that the applicant’s other qualification, the Diploma of Business was not one of the qualifications specified by the Minister in the relevant instrument IMMI 13/031 and therefore, it considered, it could not be used to satisfy the provisions cl.485.231. The applicant said that he had relied on the Department’s website which stated that a degree, diploma or trade qualification could be used to satisfy the Australian study requirement. He claimed that the website had referred to an example using a graduate diploma. On that basis, he said that he had been confident that his qualifications would meet the requirements, but he now considers the website had been misleading. The Tribunal did not have the website available to it at the time, but suggested that it most likely referred to the Australian study requirement in r.1.15F. It observed that the cl.485.231(1) limited the type of relevant qualifications for those applicants who had nominated the Post Study Work Stream.

6. Essentially the applicant’s representative raised three arguments in response at the hearing. In summary they are as follows:

   ·When submitting the visa application the applicant relied on the DIBP website. The section related to the Post Study work stream of subclass 485 visas did not provide a hyperlink on words “eligible qualifications” and therefore it was logical and reasonable for the applicant to rely on the link to the Australian study requirement (ASR) indicating that, to meet it, a person needed to have completed either a degree, diploma or trade qualification within 6 months of the application. On this basis the applicant had understood that his Diploma qualification was a relevant qualification for the purposes of cl.485.231(3) and on the basis of the ambiguous content on the DIBP website,  the Tribunal should decide in favour of the applicant in this regard.

   ·The subparagraphs of clause 485.231 are not linked by “and’ and are not otherwise expressed to be inclusive, therefore cl.485.231(3) should be considered in isolation from the other subparagraphs. On that basis the only issue for the Tribunal is whether the applicant met the ASR, as provided for in r.1.15F, in the period of 6 months preceding the visa application date. In that context, because the applicant had made the application within 6 months of the completion of his Diploma of Business, he should be regarded as having met cl.485.231(3).  

   ·As there is ambiguity in the meaning of cl.485.231(3), it should be resolved in favour of the applicant.

7. Following the hearing the applicant’s representative provided a further submission in which he contended, in summary, and as the Tribunal understands it, as follows:

   • The DIBP website is the primary source of information for an applicant to make an informed decision on visa type and an applicant should not be penalised when the content of that website is not clear. Specifically, he provided a screenshot from the website which listed the requirements to be met for a Post-Study Work stream visa. It is noted that it states that an applicant is required to hold an ‘eligible qualification’ but that there is no hyperlink from this phrase to indicate it has any special meaning. Further below, the information notes “your study for the qualification(s) satisfied the Australian study requirement [ASR] in the past six months.” The representative submits that the reference to the qualification(s)  satisfying the ASR has a different contextual meaning to the reference to ‘eligible qualification(s)’ such that, in order to satisfy the ASR, any qualifications as listed in the definition of ASR is required, not just an “eligible” qualification. Following from this, while the applicant has an eligible qualification in his Master of Pharmacy, he is entitled to rely on both his Masters and his Diploma to satisfy the ASR.
   • Subparagraph 485.231(3) is ambiguous, that the word “qualification or qualification(s)’ in cl.485.231(3)  does not reference cl.485.231(1) and therefore is capable of more than one meaning – i.e. the qualification/s referred to in 485.231(1) or those qualifications as referred to in the ASR (r.1.15F). That cl.485.231(3) does not bear the same meaning as 485.231(1) is reinforced by comparison with cl.485.221(2) which establishes a link by specific reference to its preceding subparagraph. It is submitted that the absence of such a reference in cl.485.231(3)  means that there is no link between the requirements and cl.485.231(3) should be taken on its own terms without reference to subparagraph (1). In this context, the interpretation of ‘qualification or qualification(s)’ in cl.485.231 is governed by cl.485.1 which contains the relevant qualifications for the purposes of a subclass 485 visa.
   • The applicant qualifies on merit and it is unfair to reject his application ‘on the ground of allegedly incorrect or out of context interpretation of criteria and laws’. The applicant’s visa application was 110 days late. If he had filed earlier he would have avoided the time issue and bought time in post submission correspondence while he completed his Diploma.

   Does the applicant hold qualifications of kind specified by the Minister in an instrument in writing?

8. The relevant instrument for the purposes of cl.485.231(1) is IMMI 13/013. This states that the following degrees are acceptable for the purpose of cl.485.231(1): Bachelor Degree, Bachelor (Honours) Degree; Masters by Coursework Degree; Masters by Research Degree; Masters (Extended) Degree and/or; Doctoral Degree. A Diploma is not included in these qualifications.

9. The Tribunal understands the submissions of the applicant’s representative to have contended that some type of administrative estoppel applies; that is, that the refusal of the visa cannot be sustained due to the misleading statements on the Department’s website, on which the applicant relied to his detriment.  This submission was made in general terms but no legal authority was cited to indicate on what basis this could be said to be made out or supported as applying in the present circumstances.  In the Tribunal’s view, even if it accepted that the website content in this regard was ambiguous, the provision of ambiguous advice by the Department does not invalidate the primary decision or establish grounds for any type of estoppel, and the Tribunal is still bound to consider whether or not the applicant meets the criteria in cl.485.231. As stated by Lord Greene MR in Minister of Agriculture and Fisheries v Hulkin (1948) (Unreported, Court of Appeal, England):

   Accepting the view which Mr Bailleu (the defendant’s counsel) accepts, that the Minister had no power under the regulations to grant a tenancy, it is perfectly manifest to my mind that he could not by estoppel give himself such power. The power given to an authority under a statute is limited to the four corners of the power given. It would entirely destroy the whole doctrine of ultra vires if it was possible for the donee of a statutory power to extend his power by creating an estoppel.[1]

   [1] Applied by the Full Federal Court in MIEA v Kurtovic (1990) 21 FCR 193.

   15.Furthermore, the Tribunal notes that it has been held that an estoppel can only apply where the relevant misrepresentation is one of fact, not law.[2]

   [2] Wormald v Gioia (1980) 26 SASR 237 at 242.

   16.The Tribunal accepts that the applicant may have relied on information on the Department’s website, but the Tribunal has no discretion in this regard and must determine the application on the Regulations and the relevant instruments as applicable to his circumstances.

   17.In relation to the submissions as to the interpretation and operation of the individual subparagraphs of cl.485.231, the Tribunal notes that it is an important principle of statutory interpretation that legislative provisions are to be read in context. This relates also to the operation of expressions within a section, as per Barwick CJ in Taylor v Public Service Board (1976) 137 CLR 208 at 213:

   “Their meaning and operation must be read with and accommodated to the rest of the section”

   18.In the context of cl.485.231, cl.485.231(1) requires that the applicant hold “a qualification or qualifications of a kind specified by the Minister”, that “each” qualification (that is, of the type held by the applicant which is of a kind specified) was awarded by a specified institution (cl.485.213(2)) and “the applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made” (cl.485.231(3)). When read in context, the Tribunal considers that the use of the definite article in cl.485.231(3) to qualify “qualification or qualifications” particularises or limits the word to its context – that is, it refers to “ the” qualification or qualifications referred to in (1) and (2). If the legislature had intended that any qualification as provided for in the definition of ASR (r.1.15F) would satisfy cl.485.231(3), the legislature would have used a word of generalising force such as  “a qualification or qualifications”. For these reasons, the Tribunal considers that the only qualification that is relevant for assessment against cl.485.231(3) is that which is relevantly specified in accordance with cl.485.231(1).

   19.On the evidence before it the Tribunal finds that applicant holds the qualifications of a Master of Pharmacy and a Diploma of Business. The Diploma is not a qualification of a kind specified by the Minister in an instrument in writing (IMMI 13/013) and it therefore does not meet the requirements of cl.485.231(1). Conversely, his Master of Pharmacy, as a Master’s degree, is of the specified kind and the applicant therefore satisfies cl.485.231(1) in respect of it. As it was awarded by Charles Sturt University, an Australian university registered on the Commonwealth Register of Institutions and Courses, (IMMI 13/031), the applicant also meets cl.485.231(2).

10. The Tribunal will therefore consider whether this qualification meets the Australian study requirement in the 6 months immediately before the visa application was made (cl.485.231(3)).

    Did the applicant’s study for the qualification meet the Australian study requirement in the 6 months immediately preceding the day the visa application was made?

11. Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a particular course or courses.

12. The meaning of ‘completed’ in r.1.15F(1)(b) in relation to the ‘2 year study requirement’/‘Australian study requirement’ was addressed in the Federal Court decision in Sapkota v Minister for Immigration and Citizenship, [2012] FCA 981 (7 September 2012), which held that a course is completed when the institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the educational institution.

13. The visa application was made on 6 January 2015. The Tribunal finds, on the basis of the Academic transcript from Charles Sturt University, that the applicant completed his master of Pharmacy, within the meaning of the Regulations, on 18 March 2014. This was the date, according to the university, at which it determined that it was satisfied that the appellant had completed the course requirements. This is therefore the date upon which the six calendar month period for filing the visa application commences. As noted above the visa application was filed on 6 January 2015, almost 10 months after the applicant completed his Master of Pharmacy.

14. The Tribunal therefore finds that the applicant’s Master of Pharmacy was completed outside the period of 6 months ending immediately before the day on which the application was made. It follows that the Tribunal finds that the applicant does not satisfy the requirements of cl.485.231(3).

15. As noted above, the Diploma of Business is not a specified qualification for the purposes of cl.485.231(1) and therefore it cannot be considered in the context of an application for Post Study Work stream visa under cl.485.231(3). The applicant has otherwise provided no evidence of having completed any relevant qualification in the 6 month period ending immediately before he made the visa application on 6 January 2015, either to the Department or to the Tribunal.

16. Consequently the Tribunal finds that the applicant’s study for the qualification did not satisfy the Australian study requirement in the period of 6 months ending immediately before the day on which the application was made. Therefore the applicant does not meet the requirements of cl.485.231(3),and, it follows, cl.485.231 as a whole. 

    CONCLUSION

    27.On the basis of the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

    28.The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Mary-Ann Cooper
    Member

    ATTACHMENT

    Migration Regulations 1994

    485.23      Criteria for Post-Study Work stream

    Note:      These criteria are only for applicants seeking to satisfy the primary criteria for the grant of a Subclass 485 visa in the Post-Study Work stream.

    ….

    485.231

    (1)      The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.

    (2)      Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.

    (3)      The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.