Filivao v Minister for Home Affairs

[2021] FCCA 928

FEDERAL CIRCUIT COURT OF AUSTRALIA

Filivao v Minister for Home Affairs [2021] FCCA 928

File number:

ADG 138 of 2018

Judgment of:

JUDGE YOUNG

Date of judgment:

22 April 2021

Catchwords:

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to refuse to grant Temporary Graduate (Class VC) (Subclass 485) visas – whether the applicant satisfied a mandatory criterion – whether the Tribunal’s decision was unfair or unreasonable – no jurisdictional error made out – application dismissed

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), reg 1.15F, sch 2 cl 485.231

Number of paragraphs:

12

Date of hearing:

22 April 2021

Place:

Darwin

The First Applicant:

Appearing on her own behalf

Solicitor for the First Respondent:

Ms Calabrese of Australian Government Solicitor

ORDERS

ADG 138 of 2018

BETWEEN:

LESIELI LATU FILIVAO

First Applicant

SIONE KATOA FILIVAO

Second Applicant

TAIKE TAULANGOVAKA FILIVAO (and others named in the Schedule)

Third Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	22 APRIL 2021

THE COURT ORDERS THAT:

1.The Application filed on 12 April 2018 is dismissed.

2.The First Applicant is to pay the First Respondent’s costs in the fixed sum of $4,000.00.

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) on 19 March 2018 affirming a decision of the Minister for Home Affair’s delegate (the delegate) to refuse to grant the principal applicant and the other applicants (who are the principal applicant’s children) Temporary Graduate (Class VC) (Subclass 485) visas (the visa).  Essentially, that is a visa intended to apply to persons who have recently completed tertiary studies and are seeking employment in Australia. 

2. The mandatory criteria for a grant of the visa are set out in clause 485 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). There are three relevant mandatory criteria in clause 485.231 of Schedule 2 of the Regulations:

   (1)The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause. 

   It is not an issue that the relevant qualification held by the applicant is a Master of Professional Accounting, which was awarded to her in August 2015. 

   (2)Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause. 

   It is not an issue that she satisfies that criterion because the degree was awarded by the University of South Australia which is an institution recognised in accordance with the Regulations.

   (3)The applicant satisfied the Australian study requirement:

   (a)in the period of six months immediately before the day the application was made. 

   The reference above to an application is to the application for the grant of the visa. The visa was applied for on 16 September 2016.  That means that the Australian study requirement would need to have been satisfied in the period between 16 March 2016 and 16 September 2016. 

3. The Australian study requirement is defined at regulation 1.15F of the Regulations:

   (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 the 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.

   There are some other requirements in regulation 1.15F of the Regulations which I do not need to refer to.

4. It is not in doubt that the Master of Professional Accounting awarded to the applicant satisfied the requirement.  The word “completed” is defined in the regulation:

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

5. The applicant told me that she met the academic requirements for the award of her Master of Professional Accounting by August 2015 when the degree was conferred upon her. 

6. I explored with the applicant whether there was any other academic requirement that may not have been met by August 2015.  In other words, whether there was some academic requirement that was completed or met by the applicant after 16 March 2016. The applicant confirmed to me that there was none. 

7. The applicant told me that during that period, in early 2016, she had completed a Graduate Diploma of Management. The applicant does not assert that a Graduate Diploma of Management satisfies the Australian study requirement. It would appear from her description of the course, which was a one-year course, that it could not satisfy the Australian study requirement. In particular, it does not satisfy the requirement of regulation 1.15F(c) of the Regulations which requires a course was completed as a result of at least two academic years of study.

8. It appears to be the case that the Graduate Diploma of Management would not satisfy the Australian study requirement.  This was the reasoning of the Tribunal and I can see no error in that reasoning. 

9. It should be noted that the ground identified by the applicant in her application for judicial review was self-drafted and simply said (correcting the expression):

   The AAT acted unfairly and unreasonably.

10. There were no further particulars provided by the applicant. The applicant did not file any written submissions and she did not, in oral submissions, expand on the grounds of her application for review. I am not satisfied that the Tribunal acted unfairly or unreasonably in refusing the visa. 

11. The applicant provided, in effect, written submissions directed towards her personal situation. The applicant detailed a degree of hardship that she experienced in 2016 which saw her attention be drawn away from the requirements for the visa application, particularly the short timeframe in which to apply for the visa after completing the Australian study requirement.

12. It is most unfortunate that there does not appear to be any discretionary aspect to the Tribunal's decision.  The Tribunal, unless it is satisfied that the mandatory requirements are met, has no discretion in the matter. This Court is in exactly the same position, in substance.  I have no vestigial discretion to set the decision aside because of the personal hardship experienced by the applicant, and, accordingly, I propose to dismiss the application.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       4 May 2021

SCHEDULE OF PARTIES

ADG 138 of 2018
Applicants
Fourth Applicant:	LONGOAALUPE HUASINI FILIVAO
Fifth Applicant:	SILONGO-A-VAVAU FILIVAO
Sixth Applicant:	FALANGIKE TEVITA S FILIVAO