Bhatt v MIAC
[2012] FMCA 317
•24 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BHATT & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 317 |
| MIGRATION – Review of decision of Migration Review Tribunal – refusal to grant a skilled residence visa – interpretation of the terms “degree” and “graduate certificate” – failure to consider relevant information – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), r. 1.03, 1.15F, 2.26A, Sch.2, Sch.6A |
| Re Drake and Minister for Immigration & Ethnic Affairs (No.2) (1979) 2 ALD 634 Minister of Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Scargill v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116 Saeed v Minister for Immigration and Citizenship [2010] HCA 23 |
| First Applicant: | SUVASH DEO BHATT |
| Second Applicant: | KAMALA PANDEY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1935 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 28 February 2012 |
| Date of Last Submission: | 12 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr S M Jeppesen |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Appearing for the Respondents: | Mr O Jones |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 31 August 2011 is dismissed.
The applicants pay the first respondent’s costs, set in the amount of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1935 of 2011
| SUVASH DEO BHATT |
First Applicant
| KAMALA PANDEY |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 31 August 2011 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) to affirm the decision of a delegate of the respondent Minister not to grant the applicants Skilled (Residence) (Class VB) visas.
Background
Mr Suvash Deo Bhatt (“the applicant”) applied for a Skilled (Residence) (Class VB) visa on 15 March 2008 (Court Book – “CB” – CB 1 to CB 18). His wife, Ms Kamala Pandey (“the applicant’s wife”), was included in this application as his spouse (CB 2).
Relevant Law
For the purposes of the current review, the relevant regulations of the Migration Regulations 1994 (Cth) (“the Regulations”) in place at the relevant time were in the following terms:
“1.15F 2 year study requirement
(1) A person satisfies the 2 year 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 course or courses:
(a) that are registered courses; and
(b) that were completed in a total of at least 16 calendar months; and
(c) that were completed as a result of a total of at least 2 academic years study; and
(d) for which all instruction was conducted in English; and
(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
(2) In subregulation (1), degree, diploma and trade qualification have the meanings given in subregulation 2.26A (6).”
“2.26APrescribed qualifications and number of points for skilled permanent visas and Skilled — Independent Regional (Provisional) (Class UX) visa
…
(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.
diploma means:
(a) an associate diploma, or a diploma, within the meaning of the Register of Australian Tertiary Education (as current when this definition commences), that is awarded by a body authorised to award diplomas of those kinds; or
(b) a diploma, or an advanced diploma, under the Australian Qualifications Framework, that is awarded by a body authorised to award diplomas of those kinds.
trade qualification means:
(a) an Australian trade qualification obtained as a result of the completion of:
(i) an indentured apprenticeship; or
(ii) a training contract;
that is required by State or Territory industrial training legislation or a relevant Federal, State or Territory industrial award and involves:
(iii) part‑time formal training at a technical college or a college of technical and further education; and
(iv) employment within the meaning of:
(A) an industrial award under a law of the Commonwealth or of a State or Territory; or
(B) a law of a State or Territory dealing with commercial or industrial training; or
(b) a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group IV in the Australian Standard Classification of Occupations that is:
(i) published by AusInfo; and
(ii) current when this definition commences.
…”
[Emphasis in original.]
Background
The applicants are nationals of Nepal. They came to Australia in February 2006. At that time the applicant was the holder of a student visa, although he has since been granted a number of other visas. On 15 March 2008 the applicant applied for a skilled residence visa (CB 1 to CB 78 with annexures).
In his application he stated, relevantly, that he had completed (CB 13):
1.A Bachelor of Civil Engineering in India.
2.A Master of Engineering at the University of Technology Sydney (“UTS”).
3.A Graduate Certificate in Environmental Engineering and Management (at UTS between September 2007 and January 2008).
The Delegate
The delegate had regard to Pt.885 of Sch.2 and r.1.15F of the Regulations in reaching his decision (CB 82 to CB 89)
The applicant was required to satisfy a two year study requirement (cl.885.211(2)(a) of Sch.2 of the Regulations), which was defined by the Regulations to refer to a person who had completed one or more degrees, diplomas or trade qualifications (r.1.15F). The meaning of these terms is given in r.2.26A(6) of the Regulations
The delegate found he was unable to accept that the applicant’s graduate certificate resulted in a degree, diploma or trade qualification (CB 85). The applicant’s remaining qualification, a Masters of Engineering, which was implicitly accepted by the delegate as coming within the relevant meaning, was found not to have been undertaken over two academic years of study, it was less (78 weeks) (CB 86). As no other study was put forward the applicant was found not to have met this requirement for the grant of the visa. That is, to have undertaken two years study in Australia in relation to a degree, diploma or trade certificate.
The Tribunal
The applicant applied for review to the Tribunal on 18 September 2009 (CB 90 to CB 97). On 5 August 2011 the Tribunal reached the same conclusion as the delegate ([44] – [46] at CB 151). In reaching its decision the Tribunal requested information from UTS (CB 113), which advised that a graduate certificate was not a degree or postgraduate diploma (CB 115 to CB 117).
The Tribunal further invited UTS to provide information in writing (CB 121). UTS replied that it noted the claim by Mr Bhatt that a “graduate certificate” is equivalent to a “graduate diploma”, but advised that this was not the case. In any event, the engineering faculty only offered coursework at the graduate certificate and masters level, and not at the graduate diploma level (CB 126 to CB 127).
The applicant was given this information by the Tribunal and invited to comment (CB 128 to CB 131). His representatives (who continue to be his lawyers before the Court) did so (CB 134 to CB 136).
The Tribunal also relevantly found that r.2.26A(6) of the Regulations: “… requires the qualification to be awarded under the AQF by the Australian educational institution as a degree or postgraduate diploma” ([37] at CB 149). The Tribunal saw this as a requirement separate from the “entry requirements” for the relevant program. In addition, the Tribunal accepted the advice received from UTS ([38] at CB 150).
Given the applicant’s complaint before the Court, it is helpful to record the Tribunal’s reasoning at [43] (at CB 150 to CB 151):
“Having regard to that evidence, the Tribunal is not satisfied that the Graduate Certificate completed by the applicant is equivalent to any other qualification, including a Graduate Diploma. The Tribunal finds that the applicant had completed a Master of Engineering and a Graduate Certificate. The Tribunal finds, having regard to r.1.15F and r.2.26A(6), that a Graduate Certificate cannot be counted towards the 2 year study requirement. As the Master course was completed by the applicant between February 2006 and September 2007, the Tribunal is not satisfied that the course was completed as a result of a total of at least 2 academic years of study, as required by r.1.15F(c) and the Tribunal is not satisfied that the applicant meets the 2 years study requirement. Further, as the applicant completed the Masters course in September 2007 and his visa application was made in March 2008, the Tribunal is not satisfied that the applicant satisfied the 2 year study requirement in the period of 6 months ending immediately before the day on which the application was made. The Tribunal is not satisfied that the applicant meets cl.885.211. The secondary applicant does not meet cl.885.321.”
The Application to the Court
The grounds of the application before the Court are as follows:
“1. The second Respondent made jurisdictional error in relation to the construction and interpretation of the term ‘degree’ in reg.2.26A(6) of the Migration Regulations and failed to consider relevant information
Particulars:
a. The applicant has successfully completed Master of Engineering and Graduate Certificate in Environmental Engineering Management from the University of Technology (UTS), Sydney. Both courses are registered with Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) (as opposed to
Non-Award courses which are not available for overseas students) and thereby satisfied the Regulatory requirements under Regulations 1.15F and 2.26A.
b. The Second Respondent found that the Graduate Certificate in Environmental Engineering Management is neither a ‘degree’ nor a ‘postgraduate diploma’, although it accepted that a minimum academic requirement to get admission in this course is equivalent to an Australian Bachelor’s Degree in Engineering or technological/applied science and this qualification is accredited as above Bachelor Degree and under Post Graduate Diploma under Higher Education Sector Accreditation Australian Qualification Framework (AQF).
c. The Second Respondent failed to give any weight to a decision made by another member of the Tribunal (MRT Case No: 0806409 [2009] MRTA 852 (14 May 2009), status quo, who clearly found that the Graduate Certificate to be a degree under Reg 2.26.
2. The Second Respondent made jurisdictional error in that the decision is irrational, capricious, unreasonable and unjust.
Particulars
a. The applicant repeats the particulars above.
b. As found by another member of the Second Respondent, a course that was approved by the AQF must rationally be equivalent to a ‘degree’.”
Before the Court
At the hearing of this matter Mr S M Jeppesen of counsel appeared for the applicants. Mr O Jones appeared for the first respondent.
Before the Court Mr Jeppesen explained that ground one contained the central thrust of the applicant’s attack on the reasoning of the Tribunal. That is, that the Tribunal fell into jurisdictional error in its misconstruction and misinterpretation of the term “degree”. This was said to have caused the Tribunal to incorrectly address the relevant criteria, and to therefore fail to take into account relevant information.
The remainder of the “grounds” (it would appear this included some of the particulars to ground one) are meant to inform the applicant’s “pivotal” point.
I should just note that it was difficult to see how particular (c) to ground one could assist in revealing jurisdictional error on the part of the Tribunal. The Tribunal is not obliged, in law, to give any weight to another Tribunal decision that would have, if followed, provided the applicant with the outcome sought. That is that a graduate certificate was a degree for the purposes of r.2.26A of the Regulations. The Tribunal is not a Court operating within the doctrines of binding authority or judicial comity.
Having said that however, it is important to note what was said by Brennan J, in his then capacity as President of the Administrative Appeals Tribunal, in Re Drake and Minister for Immigration & Ethnic Affairs (No.2) (1979) 2 ALD 634 at 639:
“… The Minister and each presidential member may perceive Australia’s interests differently and may differ in their perception of the way in which offending conduct adversely affects those interests. Such differences will lead to inconsistency in making decisions.
Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. In matters of deportation, which so profoundly affect the interests of the deportee and his family and which are of relevance to the community at large, inconsistency born of the application of differing standards and values should be reduced as far as it is possible to do so.”
The applicant’s particular should remind those in the Tribunal that inconsistency in outcomes, while not of itself a matter revelatory of legal error, can affect the integrity of the Tribunal and its representation as a fair organisation making “fair” decisions.
The issue for the applicant in the current case therefore arises from the interpretation of the term “degree” in r.2.26A(6) of the Regulations. The applicants’ submission is that there is no express definition of a “postgraduate diploma”, noting what r.1.15F(2) of the Regulations states (see [3] above).
The definition of “degree” is said to be “a formal educational qualification under the Australian Qualifications Framework (‘AQF’) awarded by an Australian educational institution as a degree or a postgraduate diploma …” (r.2.26A(6) of the Regulations).
The applicants sought to rely on a table setting out a list of awards recognised under the AQF (CB 117). This table was part of the material in UTS’s response to the Tribunal’s request for information. In particular, the applicants drew attention to the two items “Graduate Diploma” and “Graduate Certificate” listed in a hierarchy of awards above “Bachelor Degree” but below “Masters Degree”.
The applicants’ argument was that the definition of “degree” (r.2.26A of the Regulations) refers to a “degree or postgraduate diploma”. The definition also refers to the AQF. There is no reference to “postgraduate diploma” in the AQF. In those circumstances there is said to be some “ambiguity” arising as between the Regulations and the AQF to which it refers. The argument was that the term “postgraduate diploma” in the Regulations would be rendered superfluous if it was only intended to include a “graduate diploma” under the AQF.
The Tribunal was not satisfied that the graduate certificate awarded to the applicant was equivalent to any other qualification in the AQF, including a graduate diploma.
Mr Jeppesen submitted that in making this finding the Tribunal asked itself the wrong question. That is, it asked whether the graduate certificate completed by the applicant was equivalent to any other qualification, including a graduate diploma, whereas the relevant question was whether a graduate certificate is a postgraduate diploma under the Regulations.
The submission was that the Tribunal was further distracted by the advice received from UTS. That is, that the Tribunal accepted the advice of UTS that there was a distinction between a “graduate certificate” and a “graduate diploma”. The submission was that the Director of the Student Administration Unit, who gave the advice on behalf of UTS, looked at the relevant definition of graduate diploma in a literal fashion and noted that it did not include a “graduate certificate” and therefore advised it was neither a degree or a postgraduate diploma (see at CB 126 to CB 127).
The submission was that, in accepting the advice of UTS, the Tribunal adopted what was said as the relevant basis for its reasoning. Therefore, in this way, the Tribunal misdirected itself in asking (and answering) the wrong question. It is not whether a graduate certificate and graduate diploma are equivalent, but whether one or both are a postgraduate diploma within the meaning of the Regulations. That is, relevantly, whether the applicant’s graduate certificate was a degree as defined in r.2.26A(6) of the Regulations.
The argument that a graduate certificate was a degree as defined in the Regulations can be stated briefly as follows. The term “degree” includes both “degree” and “postgraduate diploma”. The definition of degree refers to a formal educational qualification under the AQF. In the AQF both “graduate diploma” and “graduate certificate” appear above a “bachelor degree”. That imports into r.2.26A(6) of the Regulations the “graduate certificate”, which is a postgraduate qualification.
Mr Jeppesen explained that the applicants relied on Minister of Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1 for the proposition that the error asserted in the current case was a jurisdictional error. Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (at [71] per McHugh, Gummow, Kirby and Hayne JJ) was relied upon for the principle of statutory interpretation that ambiguity was to be avoided:
“Furthermore, a Court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414, Griffith CJ cited R v Berchet [1794] EngR 1806; (1688) 1 Show KB 106 [89 ER 480] to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”
[Footnotes omitted.]
Further, Scargill v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116 was relied upon for the proposition that an error in the application of a regulatory definition revealed a constructive failure to exercise jurisdiction.
The Minister’s position was to understand the applicants’ argument as being that the term “postgraduate diploma” (as it appears in r.2.26A(6) of the Regulations) has a meaning that does not embrace the corresponding concept in the AQF.
At the hearing the Minister submitted that, while that may have been the case previously, the “Explanatory Statement to the amending Regulations”, part of which was said to have been reproduced in the Minister’s written submission (at [12]), makes clear that the intention (with the amending Regulations) was to place the Regulations “on all fours with the relevant qualifications” in the AQF.
At least two points arise. The first is that nowhere in the oral or written submissions of the Minister was there any reference to exactly which amendment to the Regulations the Minister sought to refer. This is particularly relevant in the current case where Mr Jones commenced oral submissions with the revelation that the reproduction of the definition of “diploma” in the Minister’s written submissions was “not …the correct definition”.
Second, the Minister relies on a purported extract from an imprecisely (in the submissions) identified Explanatory Statement. He asks the Court to take judicial note of its existence. There is, in my view, a difference between legislation/regulations and extrinsic materials, such as explanatory statements and media releases and the like. The relevant Regulations were, of course, made by the Governor-General in Council. It is trite to say that this is for the purpose of making law. Explanatory memoranda or statements are separately issued with the authority of the relevant Minister and are extrinsic to that purpose.
I granted leave for the Minister to file a Supplementary Court Book setting out the extrinsic material on which the Minister sought to rely. I granted leave for the applicants to file any written submissions in reply. A Supplementary Court Book (“SCB”) was filed. Further written submissions were subsequently filed by the applicants.
It must be said that for the most part the materials in the SCB are difficult to read due to the poor quality of reproduction. Nor was any indication given of the particular part on which the Minister sought to rely in a SCB of 93 pages. (Nonetheless see further below.)
Consideration
Notwithstanding the otherwise careful submissions of the applicants, I find that what remained unexplained by the applicants’ submissions was that, while a “graduate certificate” may well be a postgraduate qualification, that does not necessarily mean that it is a postgraduate diploma. The term “postgraduate qualification” appeared to have been used loosely in submissions. Where the applicants’ arguments are set out above I have endeavoured to use the relevant regulatory terms rather than the more general “postgraduate qualifications”.
Further, despite the Minster’s reliance on extrinsic material, it is to the actual language of the regulation to which regard must first be given (Saeed v Minister for Immigration and Citizenship [2010] HCA 23 per French CJ, Gummow, Hayne, Crennan and Kiefel JJ at [31]).
Mr Jeppesen submitted that there was “ambiguity” in the language of the Regulations because, while the Regulations refer to a “postgraduate diploma”, there is no reference to such a term in the AQF. There is however reference to a “graduate certificate” and “graduate diploma”.
First, there is nothing in r.1.15F, or elsewhere in the Regulations, to say that a “graduate certificate” falls within the meaning of a “postgraduate diploma”.
Second, the term “diploma” is defined in r.2.26A(6). There is nothing there, or elsewhere in the Regulations, to say that a certificate, graduate, advanced, or otherwise, falls within the meaning of “diploma” for the purposes of the Regulations.
Third, the wording of r.2.26A(6)(a)(iv) of the Regulations is clear. When read in the context of r.2.26A(6)(a)(i) to (iii), a “postgraduate diploma” for the purposes of the Regulations, is included in the definition of “degree” (“… in the case of a …”).
Fourth, in the case of a “degree” the relevant definition seeks to shape the constituent parts of that definition (“bachelor”, “masters” and “doctoral”) with reference to the entry requirements to each of those parts. Hence the reference to a “bachelor” (at r.2.26A(6)(a)(i)), “masters” (r.2.26A(6)(a)(ii)) and “doctoral” (r.2.26A(6)(a)(iii)) degree. So too a postgraduate diploma (at r.2.26A(6)(iv)).
While each of the constituent parts is said to be a formal educational qualification under the AQF, there is nothing in the Regulations, or for that matter in the AQF, to say that every item in the AQF must fall within the regulatory definition of degree (remembering that a postgraduate diploma, for the purposes of the Regulations, is one constituent part of the definition of “degree”).
The omission of “graduate certificate” from the definition of “degree” in the Regulations can only be compared with the similar lack of reference to “associate degree” which appears in the AQF, but to which no reference is made in the Regulations.
In short, the clear language of the Regulations is that for the purposes of the meaning of “degree”, it is a formal educational qualification as recognised under the AQF, which is awarded by an Australian educational institution “as a degree or postgraduate diploma”, and for which, in relation to its four constituent parts, certain entry level requirement are met.
A constituent item in the Regulations must appear in the AQF. There is nothing to say that, conversely, any other item in the AQF must be fitted into any of the constituent parts of the Regulations.
Similarly, for the purposes of the Regulations (r.2.26A and Pt.6 of Sch.6A and r.1.15F), a “diploma” means, relevantly, “a diploma” or “advanced diploma” under the AQF that is awarded by a body authorised to award diplomas of those kinds. Both “diploma” and “advanced diploma” are itemised in the AQF. If the drafter of the Regulations had intended a “graduate certificate” (as referred to in the AQF) to be included in the definition of “diploma” then “graduate certificate” could have easily been inserted into the meaning of “diploma” at r.2.26A(6) under that heading.
I cannot see, given the plain language of r.1.15F(1) (the reference to, relevantly, “degree” or “diploma”) and r.2.26A(6) of the Regulations (the references to “degree”, including “postgraduate diploma” and “diploma”), that the reference to these terms and their link to the AQF imports the entirety of the AQF into the Regulations. Quite the contrary. The plain language indicates that these terms derive part of their meaning from a corresponding reference in the AQF, not that all references in the AQF are part of the meaning of “degree”, “postgraduate diploma” or “diploma”.
When is a “graduate certificate” not a “degree”, “postgraduate diploma” or “diploma”? The answer relevantly is when the Regulations make no reference to it and make no provision for its incorporation in those terms as defined in the Regulations.
This is also illustrated, as the Minister submitted in writing, by the introduction of “graduate certificate” alongside “degree”, “diploma” and “graduate diploma” in the definition of “category A courses” in r.1.03 of the Regulations. The absence of any reference to “graduate certificate” in those parts of the Regulations relevant to the current case, therefore, serves to underscore that there was no intention to include “graduate certificate” in the meaning of “degree”, “postgraduate diploma” or “diploma” for current purposes.
As the Tribunal, correctly in my view, reasoned in answer to the submissions of the applicants’ representatives that ambiguity existed, and it was illogical not to accept their construction of the Regulations ([39] at CB 150),:
“… It is not in any way illogical or absurd to exclude qualifications of certain level or to allow only qualification of certain level to be considered…”
In light of the unambiguous meaning of the relevant Regulations, it was open to the Tribunal to rely on the advice of UTS, which expressly drew a distinction between a “graduate certificate” and a “graduate diploma” ([38] at CB 150).
In this light also, it is not necessary to consider the extrinsic material on which the Minister sought to rely. There is, in my view, no ambiguity in the relevant regulatory scheme requiring reference to such material for resolution of the relevant meaning.
In any event it does not appear that the part of the Explanatory Statement on which the Minister seeks to now rely directly assists his case as to whether “graduate certificate” is included in the definition of “degree” or “postgraduate diploma” in the relevant Regulations.
In the absence of any particular or specific reference to, or in, the SCB, I can only assume that the Minister (consistent with his written submissions) sought to rely on what is set out at page 21 of the SCB.
If so, and if regard is had to only that part of the Explanatory Statement, then I do agree with Mr Jeppesen that the “mischief” sought to be remedied with the most recent amendment to the Regulations is to avoid the potential recognition of non-AQF awards as degrees and postgraduate diplomas under the Regulations. That is, as the Minister otherwise submits, to bring some consistency between AQF recognised awards and the Regulations to avoid difficulties for relevant assessing authorities tasked with assessing academic and trade qualifications in Australia.
Nothing in this part of the Explanatory Statement really explains why a “graduate certificate”, appearing as it does in the relevant “table” of the AQF, should not be seen as falling within the ambit of the Regulations currently under consideration. In this sense the extract in the Minister’s written submissions does not assist his case. In a real sense it would, on its own, leave the matter in the state of ambiguity to which Mr Jeppesen referred in his submissions.
However, similarly and conversely, nothing in this enhances the applicants’ argument before the Court, or for that matter before the Tribunal. The “incorporation” of the AQF in the Regulations does not, for the reasons already set out above, serve to include the term “graduate certificate” in any of the definitions or meanings relevant to the relevant Regulations in the current case.
The applicants’ central argument, and therefore the consequent iterations of the argument set out in the grounds of the application, are not made out.
The Tribunal correctly understood r.2.26A(6) and r.1.15F of the Regulations. Once it received advice from UTS as to the status of the applicant’s qualification, and applied that advice to the Regulations as it correctly understood them, it was reasonably open to the Tribunal to find that the applicant did not satisfy r.2.26A(6). That is, the applicant did not hold a “graduate diploma” within the meaning of the Regulations.
Given that the applicant’s Master of Engineering did not, on its own, satisfy the two year study requirement in r.1.15F, the absence of any further relevant study qualification meant that the applicant was not able to meet the requirements of cl.885.211 of Sch.2 to the Regulations.
The Second Named Applicant
Given the applicant’s inability to meet the relevant requirements, the applicant’s wife, who was reliant on his application meeting the necessary requirements, was not eligible to meet the requirement as a spouse of a person who had met the relevant criteria for the grant of the visa for which the person had applied (cl.881.32 of Sch.2 to the Regulations).
Conclusion
I cannot see jurisdictional error in the Tribunal’s decision. On that basis the application to the Court should be dismissed. I will make an order accordingly.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 24 April 2012
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