Ahamed v Minister for Immigration

[2010] FMCA 566

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AHAMED v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 566

MIGRATION – MRT decision – skilled independent overseas residence visa – application of ‘points’ test – award of ‘bonus’ points for community language used for overseas degree – whether degree equivalent to an Australian ‘degree’ – Tribunal discussion of length of study for an Australian ‘associate degree’ and a ‘degree’ – whether irrelevant – whether error of law in reference to a definition of ‘degree’ – applicant also failed to gain sufficient English language skill points – any error by Tribunal concerning bonus points was not material to its decision – application dismissed.

Migration Act 1958 (Cth), ss. 92‑96, 349(1), 474, 476

Migration Regulations 1994 (Cth), regs.2.26A, 2.26A(1), 2.26A(2) 2.26A(3) 2.26A(6), Sch.2 cl.880.222, Sch.6A, Pt.8 item 6A81(c)

Bramwell v Repatriation Commission (1998) 28 AAR 342
Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409
Re Queensland Mines Ltd & Export Development Grants Board (1985) 3 AAR 30
SAAZ v Minister for Immigration & Multicultural Affairs [2002] FCA 791

Applicant: KHURSHED AHAMED

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG619 of 2010

Judgment of: Smith FM

Hearing date: 28 July 2010

Delivered at: Sydney

Delivered on: 28 July 2010

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr R White

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $4,200. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG619 of 2010

KHURSHED AHAMED

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. Mr Ahamed came to Australia in February 2004 after studying in his country of nationality, Bangladesh.  He had obtained a Bachelor of Arts and a Diploma in Information Technology at universities in Bangladesh, and in Australia he obtained further qualifications, in particular a Bachelor of Information Systems at the Australian Catholic University in Sydney between July 2005 and August 2007.  During that period Mr Ahamed married, and a son was born in Australia. 

2. On 28 August 2007 a migration agent lodged an internet application on behalf of the family, seeking Skilled Independent Overseas Student (Class DD subclass 880) permanent residence visas.  Mr Ahamed was presented as the principal visa applicant, and his wife and son were secondary applicants. 

3. One significant criterion which had to be met at the time of decision was the achievement of the qualifying score under a ‘points’ system provided under ss.92 to 96 of the Migration Act 1958 (Cth), which was found in Sch.6A to the Migration Regulations 1994 (Cth). This identified 10 matters upon which points could be awarded according to various criteria. The schedule of points and their criteria were given effect, and in some respects explained, in reg.2.26A.

4. In the visa application, Mr Ahamed’s migration agent suggested that he would achieve the necessary qualifying score of 120 points by being awarded 60 for the ‘skill qualifications’ in Part 1 of Sch.6A, and 30 for the ‘age qualifications’ in Part 2. In both of these respects these were the maximums, and eventually all decision‑makers accepted that he was entitled to those points.

5. The applicant’s agent also projected that Mr Ahamed would obtain 20 points in relation to ‘language skill qualifications’ under Part 3 of Sch.6A. Putting aside an alternative which was never pursued by Mr Ahamed, these points could only be awarded if prior to decision Mr Ahamed obtained a score in an IELTS test of at least 6 for “each of the 4 test components of speaking, reading, writing and listening in a test conducted: (a) not more than 12 months before the day on which the application was made; or (b) during the processing of the application”.  If Mr Ahamed achieved at least 5 in each of the four test components in one test, he would be entitled to 15 points, but on the assessment projected in his visa application that would not be enough to achieve the necessary total qualifying score. 

6. The visa application indicated that, although it was claimed that Mr Ahamed had a level of English language ability which was ‘competent’, that is, a level which would achieve 20 points for language skill, he had not yet undertaken any IELTS tests nor alternative tests to demonstrate this.  The evidence which was ultimately before the Tribunal showed that Mr Ahamed then set about making numerous attempts to achieve the requisite score in IELTS tests.  Between April 2008 and September 2009 he sat the test seven times, achieving a diversity of outcomes in relation to each of the four components.  Overall, there were instances where he achieved six in every one of the four components, but in no one test did he achieve that outcome in all components.  The decision‑making became protracted, largely it seems to me, by reason of the unsuccessful efforts of Mr Ahamed and his agent to achieve that result for a long period.  The protraction of the decision‑making appears to have included an application to the MRT during 2008, but the circumstances of this are obscure on the evidence before me. 

7. The visa application correctly, in my opinion, and as was accepted by the decision‑makers, projected that Mr Ahamed would not receive any points under Part 4 in relation to ‘employment experience qualifications’ in his nominated skilled occupation or a related occupation.  Nor could he achieve any points in relation to ‘spouse skill qualifications’ under Part 5, nor in relation to ‘skills targeting qualifications’ under Part 7, nor for being sponsored under Part 9, nor for having an association with a regional location in Australia under Part 10. 

8. Under Part 6, points could be awarded for ‘Australian educational qualifications’, and Mr Ahamed’s agent projected that he would gain an additional 5 points for having an Australian qualification by way of a Bachelor’s degree.  This also was accepted by all decision‑makers. 

9. Finally, to achieve the 120 point goal, i.e. including by getting 20 for English language skill, Mr Ahamed’s agent sought 5 ‘bonus points’ under Part 8 item 6A81(c).  This colloquially was identified as points awarded for “fluency in a Community Language”, but the actual terms of the criterion were as follows:  

   6A81The applicant: 

   (c)is the holder of a qualification (that is of an equivalent standard to a degree awarded by an Australian tertiary educational institution) the tuition for which was conducted in a designated language; or … 

10. In this claim, the officer in the Department of Immigration who was in correspondence with the applicant’s agent called for, and received, a certificate from one of the applicant’s Bangladeshi universities, certifying that he had obtained his Bachelor of Arts degree through a medium of instruction of Bangla.  Upon receipt of this evidence, the processing officer sent an email to Mr Ahamed’s agent on 13 June 2008, which said:  

    Thankyou for the additional information.  I am happy to accept this and will award your client 5 bonus points for community language. 

    The officer did not record why she was satisfied that the Bangladeshi degree had the necessary equivalence to an Australian degree.  

11. The subsequent correspondence with Mr Ahamed’s agent then focused upon the officer’s attempts to elicit evidence of his achieving IELTS results which would give him the necessarily additional 20 points.  Eventually, the delegate set a deadline on 1 October 2009, and then made a decision on 7 October 2009, which found that Mr Ahamed had not achieved the qualifying score projected by his agent, for the sole reason that he had achieved only 115 points by gaining only 15 points and not 20 points for language skill in the results of the IELTS tests which had been forwarded. 

12. Mr Ahamed appealed to the Tribunal, and did not appoint an agent to represent him.  He attended two hearings of the Tribunal on 14 January 2010 and again on 12 February 2010.  The Tribunal gives a description of what occurred, which I accept in the absence of any transcripts.  According to the Tribunal, there was discussion at the first hearing about Mr Ahamed’s need to gain better results in an IELTS test, and Mr Ahamed requested more time to make further attempts.  According to the Tribunal, at the second hearing it clearly informed him that it would not allow him more time to sit for another test, because “he has had approximately two and a half years to achieve the requisite level of English for the English language points”. 

13. The Tribunal also raised with Mr Ahamed, and this seems to be the reason for it adjourning the first hearing, the issue of whether the delegate had correctly awarded him five bonus points under Part 8 item 6A81(c).  The Tribunal raised doubts whether his university study in Bangladesh was “of an equivalent standard to a degree awarded by an Australian tertiary educational institution”, and it put to Mr Ahamed general information which suggested that it might not be so.  Mr Ahamed maintained that his Bangladeshi degree course had been studied for three years and that it was equivalent to an Australian degree. 

14. The Tribunal made its decision on 17 February 2010. As I have indicated above, it accepted the assessment of the delegate in all respects, except in relation to Part 8 of Sch.6A. The Tribunal’s assessment under other Parts of Sch.6A either accorded with the original uncontentious projections of Mr Ahamed’s agent, or was the inevitable, if highly disappointing, result of Mr Ahamed’s seven unsuccessful efforts to achieve 20 points for English language skills.

15. In relation to the five bonus points, the Tribunal accepted that the Bengali or Bangla language was a ‘designated language’ for the purposes of this item in Part 8 of Sch.6A. However, on the test of equivalence of academic degrees, it said:

    65.The Tribunal has conducted research in Country Education Profiles.  Information from the current Country Education Profiles indicates that a three year full‑time Bachelor degree from a listed university in Bangladesh after 12 years of school is comparable to a Certificate IV in Australia.  The Tribunal has considered the first named applicant’s evidence that Bangladesh has changed its system and most universities now teach in English and a Bachelor Degree is now a 4 year course.  The Tribunal has also had regard to the Country Education Profiles (as at 9 October 2009) which stated that a full‑time three year Bachelor degree from Bangladesh was comparable to an Associate degree in Australia.  On the Australian Qualifications Framework an Associate degree is described as a qualification of two years duration post‑Year 12.  The Tribunal finds that an Associate degree is not of an equivalent standard to a degree.  An Associate degree is not of an equivalent standard to a Bachelor degree or to a Master’s degree or a Doctoral degree (Regulation 2.26A). 

    66.The Tribunal has considered all the evidence but is not satisfied that the first named applicant is the holder of a qualification that is of an equivalent standard to a degree awarded by an Australian tertiary educational institution the tuition for which was conducted in a designated language. 

16. For that reason therefore, it awarded no points in relation to Part 8 and arrived at a total score of 110 points.  The Tribunal said: 

    72.At the time of primary assessment the pool mark was 120 points, and the pass mark was 120 points (GN 15 of 14 April 2004).  The first named applicant has therefore not achieved the pool mark and has not achieved the qualifying score to pass the points test.  The Tribunal must also consider the Regulations in force at the time of the Tribunal’s assessment.  The Tribunal finds that the pool and the pass marks remain the same at the time of the Tribunal’s assessment.  The Tribunal finds that the points that can be awarded to the first named applicant at the time of the Tribunal’s assessment remain the same as those that the Tribunal finds are awarded at the time of the primary assessment.  The Tribunal thus finds that the points assessment remains unchanged. 

    CONCLUSIONS 

    73.For the reasons above, the Tribunal finds that the first named applicant is entitled to a total of 110 points under the points test as it applied under the Regulations as at the date of the primary assessment and at the time of its decision.  At those dates the pass mark was 120 points and the pool mark was 120 points.  Accordingly the first named applicant has failed to achieve the qualifying score required to pass the points test or to be placed into the pool.  Therefore the first named applicant does not meet cl.880.222 which is a prescribed criterion for the grant of a Subclass 880 visa. 

17. Mr Ahamed has now applied to the Court to set aside the Tribunal’s decision.  His application names himself as the only applicant, and does not refer to the other two members of his family.  The Minister’s submissions appear to assume that the other two members are parties.  If it were necessary, I would join them to the application, but this does not appear to be necessary since I have decided that the application must be dismissed.  

18. Under ss.474 and 476 of the Migration Act, the Court has power to give Mr Ahamed a remedy only if the Tribunal’s decision was affected by jurisdictional error. The Court does not have power itself to decide issues of fact arising under the ‘points test’, nor to decide whether Mr Ahamed and his family should be given permission to reside in Australia.

19. The sole ground of error contended in the application is: 

    1.The tribunal failed to give me any points for the bonus points factor which already given by DIAC. 

20. This contention has been explained to me in oral submissions today by Mr Ahamed.  He suggests that it was at least unfair for the Tribunal to have departed from the advice previously given by the processing officer in the Department of Immigration, and which was then adopted in the delegate’s decision.  However, he has presented no argument showing me that the Tribunal was bound in law not to disturb that assessment of the delegate. 

21. On general principles of administrative law, upon the bringing of an application for review in relation to the decision of the delegate of the Minister refusing to grant the visa, the Tribunal “stood in the shoes” of the Minister in relation to all components of that decision, and was required to make its own assessment of the evidence before it when applying the relevant regulations, unfettered by previous administrative decisions made at first instance (note s.349(1), and the jurisprudence on the similar power of the AAT, commencing with Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 at 429‑430 and 419, and compare Re Queensland Mines Ltd & Export Development Grants Board (1985) 3 AAR 30 at 35, and Bramwell v Repatriation Commission (1998) 28 AAR 342 at 350‑351, and SAAZ v Minister for Immigration & Multicultural Affairs [2002] FCA 791 at [20]‑[24]).

22. In my opinion, the Tribunal made no jurisdictional error in assessing for itself whether Mr Ahamed’s Bangladeshi degree was a ‘degree’ with equivalence to a “degree awarded by an Australian tertiary educational institution”. 

23. In relation to the Tribunal’s conclusion about this, the Minister’s counsel submitted that the words of item 6A81(c) presented a pure question of fact for the Tribunal, in which the concept of an equivalent Australian ‘degree’ was unfettered by any definition or provisions in the migration legislation binding or guiding the Tribunal in that assessment.  I accept that submission. 

24. The Tribunal’s reasoning in relation to that question of fact is not entirely clear for several reasons.  One reason is that the extrinsic material in relation to general educational profiles and other documents to which the Tribunal referred are not in evidence before me.  However, I am not persuaded on the Tribunal’s description of their content that it consulted inappropriate evidence, nor that its conclusions about that evidence were not open to the Tribunal. 

25. I have some reservations in relation to the reasoning of the Tribunal, arising from the two last sentences of paragraph 65.  In these sentences, the Tribunal appears to arrive at a conclusion that in an Australian context an ‘associate degree’ is not equivalent to a ‘degree’ awarded by an Australian institution, and then apply this reasoning to its finding that a Bangladeshi three year degree is equivalent to an associate degree.  The relevance of the distinction between an ‘associate degree’ and a ‘degree’ to the issue raised by item 6A81(c) is not immediately manifest, nor the materiality of the point of distinction identified by the Tribunal, being the length of the post‑graduate study giving rise to Australian qualifications so named.  There is nothing in the language of item 6A81(c) itself to point to length of study as being a necessary consideration when determining equivalence of a degree taught in a ‘designated community language’ overseas and an Australian ‘degree’. 

26. I also have some concern with the Tribunal’s reference in brackets at the end of the last sentence of paragraph 65 to reg.2.26A. Counsel for the Minister submitted that this was a reference to no more than the fact that reg.2.26A(1), (2) and (3) generally prescribe Sch.6A as the source of the relevant points test, including Part 8. However, it appears to me that this was not the intent of the Tribunal’s reference. I consider it more likely that the Tribunal was suggesting that it obtained assistance from some other sub‑regulation, when deciding the equivalence of an Australian ‘associate degree’ and an Australian ‘degree’. In particular, reg.2.26A(6) contains a definition of the word ‘degree’ to which the Tribunal might appear to make reference. It provides:

    2.26A  

    (6)     In Part 6 of Schedule 6A: 

    degree means a formal educational qualification, under the Australian Qualifications Framework, awarded by an Australian educational institution as a degree or a postgraduate diploma for which: 

    (a)the entry level to the course leading to the qualification is: 

    (i)in the case of a bachelor’s degree — satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and

    (ii)in the case of a master’s degree — satisfactory completion of a bachelor’s degree awarded at an Australian tertiary educational institution or of an equivalent award; and

    (iii)in the case of a doctoral degree — satisfactory completion of a bachelor’s degree awarded with honours, or a master’s degree, at an Australian tertiary educational institution or of an equivalent award; and

    (iv)in the case of a postgraduate diploma — satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award; and

    (b)in the case of a bachelor’s degree, not less than 3 years of full‑time study, or the equivalent period of part‑time study, is required. 

    … 

27. However, this definitional provision relates only to Part 6 and not to Part 8 of Sch.6A. Part 6 is concerned with awarding points in relation to Australian educational qualifications, and draws distinctions between doctorates, masters and honours degrees, and ‘a degree’, which is apparently intended to mean a bachelor degree which is not an honours degree. Part 6 therefore might appear to need definitional assistance in relation to the number of years of study for ‘a degree’. As I have pointed out above, there is nothing manifest in the reference to a ‘degree’ in Part 8 item 6A81(c) which points to any obvious need to consider number of years of study, whether for an overseas ‘degree’ or an ‘equivalent’ Australian ‘degree’, although such a consideration is not obviously irrelevant.

1. I am left in doubt whether the Tribunal in its discussion of an ‘associate degree’ and a ‘degree’ under the Australian Qualifications Framework, which it applied to its finding that Mr Ahamed’s Bangladeshi three year degree was equivalent with the former, that it may have made an error of law by misunderstanding that the definition of ‘degree’ in reg.2.26A(6) was not legally relevant to the regulation which the Tribunal was applying. 

2. However, if I were affirmatively satisfied that any error of law occurred, it would not be manifestly a jurisdictional error, even in relation to the Tribunal’s application of Part 8 of Sch.6A. This is because the error related only to the assessment of one piece of comparative evidence relevant to a factual decision under item 6A81(c), in which the Tribunal also relied independently on other evidence for its conclusion.

3. Moreover, I accept the submission of the Minister’s counsel that any error of law affecting the Tribunal’s conclusions about bonus points under Part 8 of Sch.6A was not material to the outcome of the Tribunal’s decision, nor to its operative decision that Mr Ahamed did not meet cl.880.222 because he did not achieve 120 qualifying points under the points test.

4. That conclusion of the Tribunal, as I have pointed out, was also independently the result of Mr Ahamed’s failure to achieve 20 points for language skill qualifications under Part 3. No error of fact or law affected the Tribunal’s reasoning in relation to that Part, nor other Parts of Sch.6A. Consequently, in my opinion, any error of fact or law in relation to Part 8 made no material difference to the outcome of the Tribunal’s review of the delegate’s decision.

5. In those circumstances, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error, and I am not satisfied that Mr Ahamed has established grounds for relief under s.476 of the Migration Act.

6. I must therefore dismiss the application. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: 

Date:  6 August 2010