1503852 (Migration)

[2015] AATA 3699

1503852 (Migration) [2015] AATA 3699 (20 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Natasha Mary Joyce Fong-Yong
Mr Norbert Ah Sue

CASE NUMBER:  1503852

DIBP REFERENCE(S):  BCC2015/519609

MEMBER:Lisa Lo Piccolo

DATE:20 November 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 20 November 2015 at 2:40pm

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 5 March 2015 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 17 February 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.

3. The delegate refused to grant the visas because the first named applicant (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 Graduate Diploma of Education (Early Childhood Studies) was not a qualification of a kind specified by the Minister in an instrument in writing and her Bachelor of Commerce degree had been completed more than 6 months before the day the visa application was made. The delegate also found that the second named applicant does not meet cl.485.311, as he has applied as a member of the first named applicant’s family unit, and the first named applicant does not meet the requirements for the grant of the visa. A copy of the delegate’s decision record was provided to the Tribunal by the applicants.

4. The first named applicant appeared before the Tribunal on 16 November 2015 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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).

2. The primary issue in this case is whether the applicant meets cl.485.231(1). 

3. The applicant has provided evidence that she completed a Bachelor of Commerce (Marketing) from the Curtin University on 8 July 2013.  Documents provided confirm that she also completed a Graduate Diploma of Education (Early Childhood Studies) from Edith Cowan University on 17 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(1) the applicant’s Graduate Diploma of Education (Early Childhood Studies) 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.

5. The applicant said that she had spoken to a department telephone customer service person who informed her that she was informed she could apply for the Graduate Skilled visa.  She said she told the person she had a Graduate Diploma and she was told that   she could use this qualification to satisfy the Australian study requirement. She claimed that on the basis of this communication, she had been confident that her qualifications would meet the requirements, but now considers the Department’s information to her had been misleading. The Tribunal raised with the applicant the fact that Departmental officers cannot give legal to applicants and suggested that she was provided with options based on the information provided.  The applicant was adamant that she had been incorrectly advised, that she relied on this advice to her detriment and had been disadvantaged. 

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

   ·The applicant’s Graduate Diploma is a level 8 in the Australian Qualifications Framework.  It is equivalent to a bachelor’s degree and is equivalent to a bachelor’s degree and it should be regarded as one of the qualifications embraced within the term bachelor’s degree and specified by the Minister in the relevant instrument IMMI 13/031.

   ·If the Tribunal were inclined to affirm the decision, it should refer the matter to the Minister under section 351 of the Act on the basis that the applicant received incorrect advice from the Department and has suffered detriment and disadvantage as a result.  He requested that the Minister grant her the 485 visa or lift the bar in section 48 of the Act to allow her to apply for a further study visa in Australia. 

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

1. 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 Graduate Diploma is not included in these qualifications.

2. 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 given to the applicant by a Departmental officer, 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 officer gave the applicant incorrect advice, the provision of incorrect 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.

3. 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.

4. The Tribunal accepts that the applicant may have relied on information provided to her by a Departmental officer, 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.

5. On the evidence before it, the Tribunal finds that applicant holds the qualifications of a Graduate Diploma of Education (Early Childhood Studies).  The Tribunal is not satisfied that a Graduate Diploma is 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).  

6. In Bhatt v MIAC[3] (Bhatt) Nicholls FM rejected the applicant’s argument to the effect that a graduate certificate should be regarded as a postgraduate qualification embraced within the term ‘postgraduate diploma’, because ‘the Regulations make no reference to it and make no provision for its incorporation into those terms as defined in the Regulations’.[4] In dismissing an appeal, Buchanan J observed that the relevant qualifications are ‘explicitly and comprehensively stated by regulation’ and ‘[l]ittle room is left by those who draft such regulations for the application of judgment or discretion’.[5] Relevantly, his Honour rejected the proposition that its absence from the definitions was the result of inadvertence. His Honour relevantly held that there was no basis to conclude that omission of a reference to graduate certificates was inadvertent.

   [3] Bhatt v MIAC [2012] FMCA 317 (Nicholls FM, 24 April 2012) at [50], upheld on appeal: Bhatt v MIAC [2012] FCA 918 (Buchanan J, 28 August 2012).

   [4] [2012] FMCA 317 (Nicholls FM, 24 April 2012) at [51], upheld on appeal in Bhatt v MIAC [2012] FCA 918 (Buchanan J, 28 August 2012). Buchanan J held that graduate certificates are not in name, recognition or significance the same qualification as postgraduate diplomas and there was no basis for concluding that omission of reference to graduate certificate in r.2.26A(6) was inadvertent. This appears equally applicable to the replacement r.2.26AC(6).

   [5] Bhatt v MIAC [2012] FCA 918 (Buchanan J, 28 August 2012) at [12].

7. The same argument can be applied to the present case. IMMI13/013 specifies which study undertaken at Australian Qualifications Framework (AQF) level seven or higher is an accepted qualification for the purposes of cl.485.231(1).  Whilst the Tribunal accepts that a Graduate Diploma is a level 8 qualification under the AQF, all study at AQF level 7 or higher is not what is specified in IMMI 13/013.  The qualifications so specified are “explicitly and comprehensively stated.”  If the Minister had intended to specify a Graduate Diploma, or a “Bachelor or equivalent” (as contended by the applicant) he would have so specified.

8. Accordingly, the Tribunal finds that a Graduate 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).

9. Conversely, the applicant’s Bachelor of Commerce (Marketing) is a Bachelor’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 Curtin 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?

1. 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.

2. 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.

3. The visa application was made on 17 February 2015. The Tribunal finds, on the basis of the Academic transcript from Curtin University, that the applicant completed her Bachelor of Commerce (Marketing), within the meaning of the Regulations, on 8 July 2013. 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 17 February 2015, almost 19 months after the applicant completed her Bachelor of Commerce (Marketing).

4. The Tribunal therefore finds that the applicant’s Bachelor of Commerce (Marketing) 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).

5. As noted above, the Diploma of Education (Early Childhood Studies) 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 she made the visa application on 17 February 2015, either to the Department or to the Tribunal.

6. 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. 

7. 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.

MINISTERIAL INTERVENTION

1. At the hearing, the applicant’s representative requested the Tribunal recommend to the Minister to exercise his discretion under s.351 of the Act on public interest grounds.  The representative restated the applicant’s claims that the applicant had been misled by the Department’s erroneous advice, and could have applied for a different visa including a further student visa.  The representative stressed the disadvantageous impact this has had on the applicant including her having been offered two jobs which she has not been able to accept due to her visa restrictions.  He said that she is barred under section 48 of the Act from applying for a further student visa and wanted the Minister to lift the bar in view of the difficulties the applicant is now faced with as a result of the Department’s advice.

2. The Tribunal notes that these are not matters that the Tribunal can take into account in making a decision.  As the applicant does not satisfy an essential criterion for the visa at the time of the visa application, the Tribunal has no choice but to affirm the decision under review.  Only the Minister has the discretion to intervene and take these circumstances into account.

3. Having regard to the circumstances of the applicant as outlined above and having considered the Ministerial guidelines relating to the Minister's discretionary power under section 351 set out in PAM3 "Minister's guidelines on ministerial powers (sections 345, 351, 417, 454 and 501J)", the Tribunal does not consider that this case should be referred to the Department to be brought to the Minister's attention. 

DECISION

1. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Lisa Lo Piccolo
Member