Bhatt v MIAC
[2012] FCA 918
•28 August 2012
FEDERAL COURT OF AUSTRALIA
Bhatt v Minister for Immigration and Citizenship [2012] FCA 918
Citation: Bhatt v Minister for Immigration and Citizenship [2012] FCA 918 Appeal from: Bhatt & Anor v Minister for Immigration & Anor [2012] FMCA 317 Parties: SUVASH DEO BHATT and KAMALA PANDEY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: NSD 679 of 2012 Judge: BUCHANAN J Date of judgment: 28 August 2012 Catchwords: STATUTORY INTERPRETATION – qualifying period of study in Australia for a residence visa – Migration reg 2.26A(6) did not refer to graduate certificates – whether “graduate certificate” fell within the natural meaning of “postgraduate diploma” – whether the failure to refer to graduate certificates was so irrational and unjust that reg 2.26A(6) should be construed to include graduate certificates Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994Cases cited: Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251
Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642Date of hearing: 15 August 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Counsel for the Appellants: Mr J R Young Solicitor for the Appellants: Shamser Thapa & Associates Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The second respondent submitted save as to costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 679 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SUVASH DEO BHATT
First AppellantKAMALA PANDEY
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
28 AUGUST 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs assessed at $3,346.
Note:Entry of orders is dealt with in r 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 679 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SUVASH DEO BHATT
First AppellantKAMALA PANDEY
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE:
28 AUGUST 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The first appellant is an applicant for a Class VB Subclass 885 Skilled – Independent (Full Fee) visa under the Migration Act 1958 (Cth) and the regulations made thereunder. The second appellant is the first appellant’s wife. She has also sought a visa permitting her to remain in Australia. Her application for a visa depends on the success of her husband’s application.
At the relevant time the requirements for the grant of a Class VB Subclass 885 Skilled – Independent (Full Fee) visa included mandatory requirements 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 two year study requirement was defined in reg 1.15F of the Migration Regulations 1994. It required a person to complete “1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses”. The qualifications needed to be completed in a total of at least 16 calendar months, be completed as a result of at least two academic years of study and be undertaken while in Australia as the holder of a visa authorising the applicant to study.
The first appellant, in 2006 and 2007, obtained the qualifications of Master of Engineering Studies and a Graduate Certificate in Environmental Engineering Management from the University of Technology, Sydney (“UTS”). While the first appellant took more than 16 months to complete the master’s degree, that degree did not require at least two academic years of study. If the graduate certificate is taken into account, that period of time is satisfied.
The meaning of the terms “degrees, diplomas and trade qualifications”, when used in reg 1.15F was, at the relevant time, supplied by reg 2.26A(6). Regulation 2.26A(6) provided:
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.
The Australian Qualifications Framework (“AQF”), at the relevant time, referred to the following qualifications under the Higher Education Sector Accreditation in the order indicated: Doctoral Degree, Masters Degree, Graduate Diploma, Graduate Certificate, Bachelor Degree, Associate Degree, Advanced Diploma, and Diploma. While reg 2.26A(6) referred to the AQF, none of the definitions contained in reg 2.26A(6) referred to graduate certificates of the kind obtained by the first appellant. The definition of “trade qualification” made some reference to certificate level attainments in the vocational education and training sector. The reference there was to qualifications of at least the Certificate III level for particular published skilled occupations. Otherwise, the trade qualification itself was the qualifying attainment.
Having regard to the qualifications obtained by the first appellant, and the requirements to which I have referred, the argument for the appellants is that the graduate certificate obtained by the first appellant should be treated as the equivalent of a postgraduate diploma for the purpose of the definition of degree in reg 2.26A(6) and for the purposes of reg 1.15F.
A delegate of the first respondent refused the first appellant’s application for a visa on 9 September 2009. The second appellant’s application was declined as a result.
The appellants applied to the Migration Review Tribunal (“MRT”) for review of the delegate’s decision. The MRT sought information from a range of sources about how it should regard the first appellant’s attainment of a graduate certificate. It examined the argument that a graduate certificate is an attainment higher than a bachelor’s degree. The MRT assessed the appellants’ argument, in part, as follows:
39.The applicant argues that it is illogical for the legislation to exclude one of the AQF qualifications, such as the graduate Certificate, where every other qualifications [sic] can be relied upon in meeting the 2 year study requirement. The applicant claims that the legislation requires broader interpretation. The Tribunal does not accept these submissions. In the Tribunal’s view, there is no uncertainty or ambiguity in the provision. Regulation 1.15F(1) expressly refers to a degree, diploma or trade qualification, while r. 1.15F(2) indicates that these terms are defined in r. 2.26A(6). Terms such as degree and diploma are also defined quite precisely in r. 2.26A. Contrary to the applicant’s submission, it appears that it was the intention of the legislation to exclude some qualifications from consideration. Information from UTS indicates that the graduate certificates and graduate diplomas have quite different requirements in terms of load and duration of the course. The drafters of the legislation were undoubtedly aware of such possibility. It is not in any way illogical or absurd to exclude qualifications of certain level or to allow only qualifications of certain level to be considered.
The conclusion of the MRT was expressed as follows:
43.… 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.
The appellants applied to the Federal Magistrates Court of Australia for judicial review of the decision of the MRT. Before the FMCA the appellants were represented by counsel. On 24 April 2012 their application for judicial review was dismissed by the FMCA (Bhatt & Anor v Minister for Immigration & Anor [2012] FMCA 317). During its examination of the arguments advanced on behalf of the appellants, which were generally to the effect that a graduate certificate should be regarded as a postgraduate qualification embraced within the term “postgraduate diploma”, the FMCA observed:
51.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.
With respect, this captures the difficulty with the appellants’ position. In the case of a postgraduate diploma, it was clear that the length of the course would count towards the two year period as it was explicitly referred to in reg 2.26A(6). No such provision was made for a graduate certificate. This might be open to criticism, but conditions of the kind with which the present case is concerned are explicitly and comprehensively stated by regulation. Little room is left by those who draft such regulations for the application of judgment or discretion. The FMCA concluded:
63.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 argument advanced in support of the present appeal may be reduced to two propositions: either a graduate certificate falls within the natural meaning of the term “postgraduate diploma” when used in the definition of “degree” in reg 2.26A(6); or, alternatively, it should be concluded that the absence of a reference to a graduate certificate is the result of inadvertence, so that it would be permissible and preferable to construe the definition of “degree” as intended to extend to it. Neither proposition should be accepted.
As to the first proposition, there are a number of points to be made. First, the order in which qualifications are listed in the AQF does not refer necessarily to levels of attainment. It is equally apposite to refer to entry conditions. It would not be appropriate to assume, for example, that either a graduate diploma or a graduate certificate was a “higher” qualification than a bachelor’s degree (or a further bachelor’s degree) simply because graduate status was required for entry. In the present case the graduate certificate undertaken by the first appellant was, for example, only a one semester course.
Secondly, the fact that graduate diploma and graduate certificate are referred to sequentially in the AQF does not mean that the terms are interchangeable or that the qualifications are of equal attainment. Neither at UTS nor generally are graduate certificates and graduate diplomas regarded as the same qualifications. The course lengths are different and the recognition accorded to each is different. At UTS, for example, completion of a graduate certificate is recognised as a step on the way to the possible attainment of a graduate diploma. In general, and at UTS, a graduate certificate may be completed in 0.5 academic years of full-time study, while a graduate diploma requires the equivalent of one academic year of full-time study.
There is no basis, therefore, to treat graduate certificates as postgraduate diplomas, and therefore as “degrees” as defined by reg 2.26A(6). The first argument must be rejected.
Counsel for the appellants referred to the judgments of the High Court in Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 (“SZJGV”) and Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251 in aid of the second argument that failure to include graduate certificates as qualifications apt to satisfy the requirements of reg 1.15F was so irrational and unjust that it must be the result of inadvertence. In particular, reliance was placed on the following passage in SZJGV where French CJ and Bell J said (at [9]):
…If the language be so intractable that it requires a word or words to be given a meaning necessary to serve the evident purpose of the provision, then such a course may be permissible as a “realistic solution” to the difficulty. In the twelfth edition of Maxwell’s On the Interpretation of Statutes the approaches which can be taken in dealing with statutory language whose ordinary meaning is plainly at odds with the statutory purpose were explained:
“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning.”
This approach is reflected in decisions of the Courts of the United Kingdom. In Inco Europe Ltd v First Choice Distribution, Lord Nicholls of Birkenhead restated the need for the Court to correct obvious drafting errors. He referred to the third edition of Cross’ Statutory Interpretation:
“In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.”
The limits of the judicial role, as pointed out by Lord Nicholls, require that the courts “abstain from any course which might have the appearance of judicial legislation”. Three matters of which the court must be sure before interpreting a statute in this way were the intended purpose of the statute, the failure of the draftsman and parliament by inadvertence to give effect to that purpose, and the substance of the provision parliament would have made. The third of these conditions was described as being of “crucial importance”. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation.
(Footnotes omitted.)
Thus, it was argued that the Court could, having regard to the broader statutory purpose of the regulations, legitimately construe the regulations in the manner contended even though it would require the Court to insert words that were not contained in the regulations themselves.
In part those contentions fail for reasons already given. There is no basis to conclude (much less simply assume) that omission of a reference to graduate certificates was inadvertent. This is an area where policy choices and judgments are made by those who set visa conditions. Graduate certificates are not in name, recognition or significance the same qualification as postgraduate diplomas. As to the suggestion that the Court should prefer a construction (even a strained one) which better serves a legislative (or regulatory) intent, the first problem is that no intent of the kind urged by the appellants is discernible. The second problem is that the appellants’ argument does not propose a choice between or amongst strained (even if available) constructions. It requires the rewriting of the stated conditions to create a new entitlement. That is not an available course under the authorities relied upon. To adopt the course urged by the appellants would be to “cross the boundary between construction and legislation”.
No error has been shown in the conclusion of the FMCA. The appeal must be dismissed.
The Minister sought a lump sum order for costs in the event that the appeal was dismissed, quantified at $3,346. Evidence to support that sum was led without objection. Counsel for the appellants accepted the appropriateness of such an order if the appeal was dismissed. Costs in that amount will therefore be ordered.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 28 August 2012
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