Brar v Minister for Immigration

[2016] FCCA 951

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRAR & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 951

Catchwords:
MIGRATION – Application for judicial review – no arguable case – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

First Applicant: GURLAL SINGH BRAR

Second Applicant: RANJEET KAUR

Third Applicant: TAWARUDAY SINGH BRAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG1501/2015

Judgment of: Judge Riethmuller

Hearing date: 23 March 2016

Date of Last Submission: 23 March 2016

Delivered at: Melbourne

Delivered on: 23 March 2016

REPRESENTATION

Solicitors for the Applicants: Rangi Lawyers

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG1501/2015

GURLAL SINGH BRAR

First Applicant

RANJEET KAUR

Second Applicant

TAWARUDAY SINGH BRAR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

1. This is an application to judicially review a decision of the Migration Review Tribunal (the “Tribunal”) made on 4 June 2015. The application has been set down for a show cause hearing. Whilst the applicants lists five grounds in the application, the substance of the case, as articulated today by the solicitor representing the applicants, relates to the Tribunal’s interpretation of the relevant visa criteria and whether or not the first applicant could meet the minimum requirements for that criteria. The other grounds relating to procedural fairness were not pursued.

2. The applicants came to Australia for the primary applicant to undertake studies. A student visa was issued and course undertaken. The student visa ended in March 2009. A further student visa was then obtained, which ultimately, expired in January 2010. During the period of time that the first applicant was here on a student visa he completed three courses in Australia:

   a)a Certificate III in Food Processing (Retail Baking) at Della International College on 14 September 2007;

   b)a Diploma of Business Management at Della International College on 7 November 2008; and

   c)a Certificate IV in Business Management from Chelsea International College on 20 December 2009.

3. The applicant then applied for a Skilled (Residence) (Class VB) visa under the Migration Act 1958 (“the Act”). The relevant criteria for this visa that is at issue in this application is criteria 886.211. That is a lengthy criteria, the relevant part of which is 886.211(2)(a), which provides that the applicant must satisfy the “Australian study requirement in the period of 6 months ending immediately before the day on which the application [for the visa] was made”.  The only study that the applicant completed in the six months before applying for this visa (which was applied for on 30 December 2009) was the Certificate IV in Business Management from Chelsea International College.

4. The question that arises is whether or not a Certificate IV in Business Management is within the meaning of the “Australian study requirement”.  In order to understand the meaning of “Australian Study requirement”, one must turn to regulation 1.15F of the Migration Regulations 1994 (“the Regulations”), which relevant provides:

   1.15F    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 course or courses:

   (a)that are registered courses;

   (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 this regulation:

   completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

   Note   The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.

   degree has the meaning given in subregulation 2.26A (6).

   diploma has the meaning given in subregulation 2.26A (6).

   trade qualification has the meaning given in subregulation 2.26A (6).

5. In this case, the Certificate IV qualification of the first applicant obtained, does not fall within the definition of degree or diploma, as provided for in sub-regulation 2.26A(6). It is argued that the Certificate IV may fall within the definition of “trade qualification”. The meaning of “trade qualification” is also set out in regulation 2.26A(6) follows

   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.

6. The relevant issue in this case is not whether the Certificate IV falls within subparagraph (a) of the definition, as clearly it does not, not being a training contract nor an indentured apprenticeship, but rather whether it falls within sub-definition (b). 

7. It is accepted by the solicitor for the applicant that the Certificate IV in Business Management is not a skilled occupation in Major Group 4 in the Australian Standard Classification of Occupations, as referred to in the Regulations. The arguments that the applicant raised are first that this definition should be read in light of subsequent amendments and secondly, that because a Certificate IV in Business Management contains studies that may be credited towards a diploma, that in some way this brings the applicant within the meaning of a person who has completed a diploma.

8. With respect to the first argument, I am told that the Regulations have, since this decision was made, been amended so as to include Major Group 3 of the Australian Standard Classification of Occupations and that if the applicant applied under the current version of the Regulations, the Certificate IV in Business Management would fall within Major Group 3. The solicitor attempted to articulate an argument that because, in the applicant’s view, the Regulation was unjust when it referred to Major Group 4, that the Court should read it as if it included Major Group 3 to reflect the subsequent amendments.

9. It does not appear to me that it is open to the Court to re-write the definition of trade qualification under Regulation 2.26A. To the extent that the Court has open to it the ability to interpret legislation and regulations, this is in circumstances where the meaning is not clear on the face of the provision. In those circumstances, the difficulty of interpretation is well recognised and presents many difficult problems for courts. In this case, however, the Regulation is perfectly clear and the applicant does not come within it.

10. In these circumstances, it is not open to the Court to attempt to read the Regulation in a form that is different to what it clearly states. I therefore find that there is no merit in this argument at all.

11. With respect to the second argument, the Regulations require that the applicant have a degree, diploma or trade qualification. The fact that the Certificate IV may include subjects that ultimately could count towards a diploma does not bring the applicant within the definitions used in regulation 1.15F(1), which requires that a person have completed the degree, diploma or trade qualification, not simply that they have enrolled in part thereof on a course that may be used as a means for obtaining credit for prior learning. For this reason, such an argument must necessarily fail.

12. Given that the applicant cannot succeed on the basis of the case, as articulated, I do not go on to consider the question of whether or not I would consider the applicant to be undertaking a diploma course of study simply because he is enrolled in a Certificate IV that may count as credit towards a diploma. Such a question is not necessary to be answered in these proceedings and ought to await proceedings where it is a necessary element of the decision. As the applicant was not able to articulate anything that, amounts to an arguable case, it is therefore appropriate that I dismiss the application for review.

    [Further argument continued]

13. In this application the Minister seeks costs. It is appropriate that costs follow the event. It seems to me that any reasonable reading of the material and the nature of the application would have demonstrated that it was bound to fail.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 27 April 2016