Brar v Minister for Immigration and Border Protection
[2016] FCA 985
•18 August 2016
FEDERAL COURT OF AUSTRALIA
Brar v Minister for Immigration and Border Protection [2016] FCA 985
Appeal from: Brar & Ors v Minister For Immigration & Anor [2016] FCCA 951 File number: VID 289 of 2016 Judge: DAVIES J Date of judgment: 18 August 2016 Catchwords: MIGRATION– application for a Skilled (Residence) (Class VB) Visa –application for an extension of time in which to seek leave to appeal the decision of the Federal Circuit Court of Australia dismissed Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.12
Federal Court of Australia Act 1976 (Cth), s 24(1A)
Federal Court Rules 2011 (Cth), r 35.13(a)
Migration Regulations 1994 (Cth), regs 1.15F; 2.26A(6), 886.211, item 1136(4)
Date of hearing: 2 August 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 15 Counsel for the First Applicant: The First Applicant appeared in person and on behalf of the Second Applicant and the Third Applicant Solicitors for the First Respondent: Mr B Hornsby of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 289 of 2016 BETWEEN: GURLAL SINGH BRAR
First Applicant
RANJEET KAUR
Second ApplicantTAWARUDAY SINGH BRAR
Third ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
2 AUGUST 2016
THE COURT ORDERS THAT:
1.The application for an extension of time in which to seek leave to appeal the decision of the Federal Circuit Court of Australia be dismissed.
2.The Applicants pay the First Respondent’s costs of the application, such costs to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)DAVIES J:
The Applicants have appealed the decision of the Federal Circuit Court of Australia (“FCC”), dismissing their application for judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) affirming the decision of a delegate of the first respondent (“the Minister”) not to grant the First Applicant’s application for a Skilled (Residence) (Class VB) visa (“the visa”). The Second and Third Applicants were included as members of the family unit.
At the time that the Applicants applied for the visas on 30 December 2009, the First Applicant had completed three courses in Australia, a Certificate III in Food Processing (Retail Baking) at Della International College on 14 September 2007, a Diploma of Business Management at Della International College on 7 November 2008 and a Certificate IV in Business Management at Chelsea International on 20 December 2009. In order to qualify for the visa, it was necessary for the First Applicant to show that the criteria set out in Subclass 886 to Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) was satisfied at the time of making the application for the visa. Regulation 886.211 relevantly provided that the criteria included that the First Applicant:
·met the requirements of sub item 1136(4) of Schedule 1 (r 886.211(2)); and
·satisfied the Australian study requirement in the period of six months ending immediately before the day on which the application was made (r 886.211(2)(a));
The term “Australian study requirement” is defined by reg 1.15F of the Regulations, which states as follows :
(1) 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; 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.
Note Academic year is defined in regulation 1.03.
(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).
The Tribunal was satisfied that the First Applicant met the requirements of item 1136(4) but held that the First Applicant did not meet the criterion in subclass 886.211(2)(a) that the First Applicant satisfy the Australian study requirement in the period of six months immediately before the day on which the application was made.
Of the three courses that the First Applicant had completed, only the Certificate IV in Business Management had been completed within the six month period prior to the making of the application for the visa. The Tribunal held that the Certificate IV in Business Management was not a qualification of a kind specified by sub regulation 2.26A (6) as it was not a degree or a diploma or a trade qualification.
Sub regulation 2.26A (6) provides as follows:
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 Auslnfo; and
(ii) current when this definition commences.
It was not in controversy that the Certificate IV in Business Management was neither a degree nor a diploma. The Tribunal held that the Certificate IV in Business Management was not a trade qualification either, reasoning as follows:
[16] Regarding the applicant’s Certificate IV in Business, while it was completed in December 2009 and therefore within the relevant 6 month period, the Tribunal is not satisfied that it is a “degree” or “diploma” or “trade qualification” as defined by r.2.26A(6) (refer cl.886.111 and r.I.15F). Specifically, in relation to a “trade qualification”, there is no claim nor is there any material before the Tribunal or on the Department’s file demonstrating that the applicant’s Certificate IV was obtained as a result of the completion of an indentured apprenticeship or training contract as provided in r.2.26A(6)(a), nor is it a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group IV of ASCO (r.2.26A(b)) which covers ‘Tradespersons and Related Workers’. A Certificate IV in Business is also self-evidently not a degree or diploma. The Tribunal therefore finds, in respect of the applicant’s Certificate IV in Business, that it is not a “degree, diploma or trade qualification” as defined for the purposes of satisfaction of the Australian study requirement in r.1.15F and, it follows, cannot be included in the assessment of whether or not the applicant meets the requirements of cl.886.211 (2)(a).
The FCC upheld the Tribunal’s decision. The FCC stated that the Certificate IV Business Management “clearly” did not fall within subparagraph (a) of the definition of trade qualification. The Applicants were represented at that hearing and it was accepted by the Applicants’ solicitor that the Certificate IV in Business Management also did not fall within the definition of trade qualification in subparagraph (b) of the definition of that expression. It was, however, argued by the solicitor acting for the Applicants that the definition of trade qualification should be read in light of subsequent amendments and also argued that a Certificate IV in Business Management contained studies that may be credited towards a diploma, and that this brought the First Applicant within the meaning of a person who has completed a diploma. It appears that subsequent to the decision of the Tribunal the Regulations had been amended so as to include Major Group 3 of the Australian Standard Classification of Occupations and that, had the First Applicant applied under the current version of the Regulations, the Certificate IV in Business Management would fall within Major Group 3. It was submitted that the Court should read the definition of “trade qualification” when it referred to Major Group 4 as if it included Major Group 3 to reflect the subsequent amendment.
The FCC rejected that submission, stating that it was not open to the Court to attempt to read the regulation in a form that was different to what it clearly stated. The FCC also rejected the second argument, stating that the fact that the Certificate IV in Business Management may include subjects that ultimately could count towards a diploma it did not bring the First Applicant within the definitions used in reg 1.15F.
Leave to appeal the decision of the FCC is required by reason that the FCC dismissed the application at a show-cause hearing: r 44.12 of the Federal Circuit Court Rules 2001 (Cth); and s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The application for leave to appeal was not filed within 14 days of the FCC’s decision as required under r 35.13(a) of the Federal Court Rules 2011 (Cth) and accordingly requires an extension of time under r 35.14. As the application for leave to appeal was only filed one day out of time, the application for an extension of time was opposed by the Minister solely on the basis that the proposed grounds of appeal have no reasonable prospects of success.
The proposed grounds of appeal are as follows:
1. The case has reasonable prospects of success as it raises an arguable case and full hearing is essential to agitate the merits of the case.
2. The circumstances were such that the trial judge could not get time to read the material, thus he gave just a cursory consideration to the matter.
3. The trial Judge erred by presuming that he did not have powers to interpret regulation 2.26A(6) despite the literal and contextual interpretation resulting in absurdity.
4. The trial judge failed to appreciate that the Tribunal fell into jurisdictional error by assuming that once a person attains minimum threshold in accordance with Australian Study regulation 1.15F, his fate is locked and the applicant is not permitted to study further; though, other regulations such as sub-item 1136(4)(a)(ii) encourages the applicants to study further.
5. The trial Court had all the powers of the High Court while dealing with the case but the trial judge unduly restricted himself by not looking into the claims that Clause 886.211 (2), Regulation 1.15F(1) and Regulation 2.26A(6) is not lawful exercise of the regulation making power in section 504 of the Migration Act 1958(Cth) because it is arbitrary, capricious, discriminatory and/or incapable of practical administration.
No appealable error is shown by proposed grounds 1 and 2. The primary judge was entitled to dismiss the application for judicial review at a show-cause hearing on the basis that he was not satisfied that it raised an arguable case and detailed reasons for that decision were given: Brar & Ors v Minister For Immigration & Anor [2016] FCCA 951. It is plain from the consideration of those reasons that the FCC dealt comprehensively with each of the arguments advanced on the Applicants’ behalf.
Proposed ground 3 has no merit. The FCC correctly held that the regulation should be construed on its terms, and it was not open to read the definition of “trade qualification” in subparagraph (b) as if when it referred to Major Group 4 it also included Major Group 3.
Proposed ground 4 similarly has no merit. Sub-item 1136(4) sets out the requirements that must be met for a valid application, which the Tribunal accepted were satisfied. However satisfaction of sub‑item 1136(4) was only one of the criteria required to be satisfied by subclass 886.211, the other relevant criteria being that the First Applicant satisfied the Australian study requirement in the period of six months ending immediately before the day on which the application was made.
Proposed ground 5 is an entirely new ground that was not advanced as a ground of appeal from the decision of the Tribunal, and accordingly there can be no error of law in the FCC in not considering that ground. Nor were any submissions advanced in support of ground 5. Leave to rely on this ground is required and refused.
As none of the grounds have any arguable prospects of success, there would be no utility in granting leave to appeal. Accordingly the application for an extension of time in which to seek leave to appeal must be dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate:
Dated: 18 August 2016
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