Nayeem v Minister for Immigration - [2010] FMCA 980

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAYEEM v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 980

MIGRATION – MRT decision – skilled provisional on-shore visa – 2 year study requirement – completion of course ‘as a result of a total of at least 2 academic years study’ – criterion addresses more than period of attendances – student using credits for overseas study –Tribunal considered usual full-time workload over 2 academic years – no jurisdictional error – application dismissed.

Acts Interpretation Act 1901 (Cth), s.15AB(1)(a)
Legislative Instruments Act 2003 (Cth), s.13(1)(a)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), reg.1.15F, Sch.1, Sch.2, cl.485.213

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
Saeed v Minister for Immigration & Citizenship (2010) 84 ALR 507

Applicant:

NAZRATAN NAYEEM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1216 of 2010

Judgment of:

Smith FM

Hearing date:

22 November 2010

Delivered at:

Sydney

Delivered on:

23 December 2010

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Parish Patience

Counsel for the Respondents:

Ms A Mitchelmore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1216 of 2010

NAZRATAN NAYEEM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ms Nayeem’s application turns upon the meaning of a visa criterion which required her to have gained a qualification awarded by an Australian educational institution “as a result of a course … that (was) completed as a result of a total of at least 2 academic years study” undertaken in Australia. Ms Nayeem argues that this is satisfied by the period actually occupied by her Australian studies, which lasted four semesters between 27 February 2006 and 19 December 2007. However, the Tribunal said that the criterion required it to consider the amount of her studies during her period of attendances at the Australian institution, and not merely the period over which they were undertaken. Ms Nayeem had been given 24 credit points towards the required 96 credit points for her degree, based upon her earlier studies in Bangladesh. This meant that in Australia she studied 12 subjects rather than the usual 16. The Tribunal held that she did not meet the ‘2 year study requirement’ for an on-shore skilled visa. For the reasons which follow, I have concluded that the Tribunal made no jurisdictional error.
Ms Nayeem obtained a degree of Bachelor of Business Administration at the University of Dhaka in November 2005. She enrolled at the University of Technology, Sydney in a course described as ‘Master of Business Administration (Limited Work Experience)’. She commenced her Australian studies on 27 February 2006, and completed the course on 19 December 2007. Her academic record shows that at the commencement of her course she was credited with 6 points for each of four subjects in the curriculum. She then studied and passed four subjects in the autumn semester of 2006, three in each of the spring semester of 2006 and the autumn semester of 2007, and two in the spring semester of 2007. She then was recognised with the necessary 96 credit points to be conferred with the Masters degree.
As the University later explained in response to two questions posed by the Tribunal:
1.What comprises 2 academic years of study for the MBA (ie. number of credit points/subjects).
The Master of Business Administration comprises 96 credit points. Students normally enrol in 4 x 6 credit point subjects (totalling 24 credit points) each semester. There are normally 4 semesters or two years of study for this qualification. Ms Nayeem, however, was granted 24 credit points of advanced standing, leaving her 72 credit points to complete. This would normally be completed within the three remaining semesters of the standard course duration.
2.If the academic year is counted on the basis of enrolment for 2 semesters on a full-time basis, was Ms Nayeem undertaking full-time study in her final semester (the academic record indicates only two subjects were undertaken in the 2007 Spring semester).
No, Ms Nayeem was not undertaking full-time study in her final semester. As you point out, she was enrolled in only two subjects in the 2007 Spring semester, which were her two remaining subjects.
Ms Nayeem relied upon her Masters degree as the sole Australian qualification when applying on 10 March 2008 for a subclass 485 Skilled Graduate visa. This would allow her to continue to reside in Australia temporarily to obtain further skills and qualifications to obtain a permanent residence visa.
On-shore skilled visas have for many years been subject to requirements in relation to qualifying Australian study. Before 2007, the requirements were found in Sch.1 conditions on a valid visa application, which also became time of application and time of decision criteria. The Australian study requirements were then reformulated in the Act and Regulations.
In the version of the Migration Regulations applicable to Ms Nayeem’s visa application, Sch.2 cl.485.213 required at time of decision:
485.213: The following requirements are met:
(a)the applicant satisfied the 2 year study requirement in the period of 6 months ending immediately before the day on which the applicant was made;
(b)each degree, diploma or trade qualification used to satisfy the 2 year study requirement is closely related to the applicant’s nominated skilled occupation.
The term ‘2 year study requirement’ had the meaning given by reg.1.15F:
1.15F2 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).
Sub-regulation 2.26A(6) provided in relation to a Master’s degree:
(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:
…
(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…
Subsequent amendments to cl.485.213(a) have substituted a reference to “the Australian study requirement”, and reg.1.15F now defines that term with a supporting definition of an ‘academic year’ under reg.1.03. However, no such definition applied to Ms Nayeem’s visa application, and neither counsel invited me to take assistance from the terms of the current legislation.
A delegate of the Minister decided on 11 February 2009, that

Ms Nayeem did not meet cl.485.213, and refused the visa. When addressing the ‘2 year study requirement’ the delegate applied a policy in the Procedures Advice Manual, which regarded reg.1.15F(1)(c) as allowing a test of whether the visa applicant had “the equivalent of 2 years study at 100% of the full-time load, without benefit from credits”. She said:
Policy Instruction from the Procedures Advice Manual (PAM 3) provides further guidance with regards to regulation 1.15F and the definition of ‘2 academic years study’:
7.TWO ACADEMIC YEARS
7.1Period of actual study
In considering whether a GSM applicant completed at least two academic years study, case officers should be aware that the intention is that the applicant have successfully completed the equivalent of 2 years study at 100% of the full time load, without benefit from credits, recognition of prior learning (RPL) and/or recognition of work experience that would allow a reduction in the amount of study undertaken.
Case Officers should first consider the standard duration of the applicant’s course/s as registered on CRICOS.
In the simplest cases, where a person does not have any RPL:
If they are using a single course to meet the two year study requirement, the course must have a registered duration of at least 92 weeks or
If they are using more than one course to meet the two year study requirement, the courses must have a total registered duration of at least 92 weeks.
7.2RPL and university studies
Where a GSM applicant enrolled in a university course and received credit from earlier studies, case officers should compare the standard duration of the course registered on CRICOS and the number of credit points that were necessary to complete the full course, to determine how many credit points the applicant needed to successfully complete in two academic years in that course.
For example, if a GSM applicant enrolled in a Bachelor course with a standard duration of 3 years that comprised 48 credit points, they would have completed two academic years of study when they have completed 32 credit points.
In support of your application you provided evidence that you completed a Master of Business Administration at the University of Technology, Sydney. This Australian qualification was submitted in order to satisfy the 2 year study requirement of subclause 485.213(a). The Provider Registration and International Students Management System (PRISMS) confirms that this is the only course you have undertaking in Australia.
The academic transcript you provided from the University of Technology states that you gained 96 credit points from a total of 16 units to successfully complete your Master of Business Administration. This academic transcript also states that you were granted exemptions for 4 units (24 credit points) as recognition of prior learning (RPL) from a previous course completed overseas.
According to the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) your Master of Business Administration from the University (of) Technology has a registered duration of 104 weeks, based on the 16 units of study required to complete the course. This equates to 6.5 weeks per unit. When multiplied by the number of units you actually completed (12), the duration of study undertaken is equal to 78 weeks. Under policy, 2 academic years study is defined as being a registered duration of at least 92 weeks without benefit from recognition of prior learning (RPL) that would allow a reduction in the amount of study undertaken.
As you did not complete your Master of Business Administration in at least 2 academic years study, I find that you do not meet the 2 year study requirement defined in regulation 1.15F and consequently are unable to satisfy clause 485.213
On appeal to the Tribunal, Ms Nayeem’s solicitor challenged the reasoning of the delegate. After receiving the above information from the University, and after a hearing attended by Ms Nayeem and her solicitor, the Tribunal made a decision on 10 May 2010, affirming the delegate’s decision.
In its ‘findings and reasons’, the Tribunal referred to Ms Nayeem’s circumstances, and to the passages from PAM cited by the delegate. It also noted the explanatory statement to the relevant amendment:
24. Further, Item 14 of the Explanatory Statement, SLI 2007 No. 257 to the Migration Amendment Regulations 2007 (No. 7) provides that the purpose of the two year study requirement is “to ensure that applicants applying on the basis of qualifications obtained in Australia, have the dual benefit of having a strong skills base, after completing a substantial amount of study in Australia and having lived in the Australian community for a substantial period of time before applying for a General Skilled Migration visa”. There is nothing to suggest that a ‘substantial amount of study’ and a ‘substantial period of time’ spent in Australia can only be met after 92 weeks.
The Tribunal’s subsequent reasoning is not entirely clear. It said that “the Departmental policy requiring an applicant to have completed a course of 92 weeks duration is not consistent with the legislation”. Rather than apply that standard of an ‘academic year’, it said that “the education provider is best placed to determine what it considers an academic year to be”. It then suggested that the reference to “2 years academic years study” addressed more than the duration of the studies of the visa applicant, but provided an ‘objective criterion’ as to the academic content of the Australian studies undertaken by the visa applicant. It said:
28. The UTS website ( indicates that an MBA course comprises 16 subjects and the applicant’s academic transcript confirms that her course comprised 16 subjects or 96 credit points. The Tribunal does not accept the applicant’s submission that an academic year may be defined merely by reference to the course duration, that is, that an applicant may be said to have completed two years of academic study by completing four semesters. In the Tribunal’s view, this does not provide an objective criterion of what comprises an academic year and may lead to an absurd result whereby a student who completes only a small number of subjects over four semesters (for example, by failing or repeating the subjects) would be said to have completed two academic years of study. This is particularly so as the applicant argues that the requirement in r. 1.15F does not require full-time study. The Tribunal is of the view that defining what comprises an academic year by reference to a course structure within a course duration, and not solely course duration, offers a more objective and logical foundation.
The Tribunal then reasoned in relation to Ms Nayeem:
31. The Tribunal is also of the view that this is what was intended by the legislation. While the applicant suggests that the definition of ‘two academic years’ relies only on the duration of the course and not course structure, the Tribunal considers it equally significant that r. 1.15F makes a distinction between the mere duration of the course (r. 1.15F(1)(b)) and the academic duration of the course (r. 1.15F(c)) and this suggests to the Tribunal that the latter requirement is not merely about the length of time it takes to complete the course, as the applicant suggests.
32. The Tribunal finds that the objective requirement for two academic years of an MBA course at UTS comprises completion of 16 subjects, or 96 credit points, over four semesters. The applicant’s academic transcript which she provided with her application indicates that she completed 12 of these subjects at UTS and that she was granted exemption for 4 of the subjects. The applicant confirmed in her oral evidence to the Tribunal that she did not undertake any other study in Australia. The Tribunal finds that such exemptions were granted on the basis of the applicant’s overseas study. As such, this study was not undertaken “while in Australia as the holder of a visa authorising the applicant to study” as required by r.1.15(1)(e). Thus, while the Tribunal accepts that the applicant has completed four semesters of study in Australia, the Tribunal does not accept that she completed 16 subjects, or 96 credit points, within these four semesters of studying Australia. The Tribunal is not satisfied that the applicant meets the two year study requirement in r.1.15F. The Tribunal is not satisfied that the applicant meets cl.485.213.
Ms Nayeem now contends that the Tribunal’s approach discloses jurisdictional error of law. Her application argues in its grounds:
1.The Tribunal erred in its constructions of Migration Regulations 1.15F(1)(c), by defining an “academic year” partly in terms of the content of the applicant’s particular course.
2.The Tribunal should have construed Migration Regulations 1.15F(1)(c) by reference only to the duration of the period during which the applicant’s study takes place.
In his written submissions, counsel for Ms Nayeem argued:
10.Regulation 1.15F defines a “two year study requirement” by reference to the status of the course (ie. one that is registered), the language in which it is taught, certain temporal requirements and the immigration status of the student. Those, I submit, are exhaustive requirements.
11.The temporal parameters of the “2 year study requirement” in Reg 1.15F(1) are stated in paragraphs (b) and (c). That is, the course must be completed in a total of at least 16 calendar months, as a result of at least 2 academic years study. The wording of these provisions is not entirely clear, but a construction which would permit each to have an independent operation is that the actual period of study be at least 16 months, extending over at least two academic years. I submit that any other interpretation would involve an inconsistency between paragraphs (b) and (c) of Reg 1.15F(1).
12.Paragraphs (b) and (c) of Reg 1.15F(1) are solely about course and study duration. The words “at least” in each paragraph indicate that more time may be taken which suggests that there is flexibility consistent with part time study so long as minimum requirements are met. Neither paragraph says anything about whether study should be full or part time. Nor do they say anything about course structure.
13.This interpretation is supported by the evident purpose of these requirements, which is to ensure that students are exposed to Australian educational institutions, and presumably the Australian educational culture, for a specified minimum period of time. The provisions thus prevent students from loading themselves with subjects so as to complete their course in a much shorter period.
14.I submit the Tribunal’s approach effectively inserts extraneous requirements, which are not justified by the plain words or evident intention of Reg. 1.15F(1). The result is that the Tribunal has misinterpreted and misapplied that provision, and has thus fallen into jurisdictional error.
In his oral submissions, counsel for Ms Nayeem cited recent High Court references to principles of statutory interpretation. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, French CJ said at [4]:
The starting point in consideration of the first question is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill as:
dictated by elementary considerations of fairness, for, after all, those who are subject to the law’s commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.
In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy.

Hayne, Heydon, Crennan and Kiefel JJ at [45] identified the issue of statutory interpretation in that case as being “whether there was a contrary intention which displaced the natural and ordinary or literal meaning of the definition and consequentially affected the definition of ‘land’”. They said at [47]
This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision,^{- 72#72} in particular the mischief it is seeking to remedy.
In response to the present Tribunal’s implicit reliance on the explanatory statement, which suggested that the ‘2 year study requirement’ included a test of the ‘amount’ of the Australian study as well as a temporal test of its duration, counsel for Ms Nayeem cited Saeed v Minister for Immigration & Citizenship (2010) 84 ALR 507. In that case, the plurality judgment said at [33]: “it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction”. Heydon J explained at [74]: “as is very common, reading the Explanatory Memorandum and the Second Reading Speech is much less helpful than reading the legislation itself”.
In my opinion, the intended meaning of reg.1.15F(1)(c) is found by considering its language in the context of the other paragraphs of the definition of ‘2 year study requirement’, and it is necessary to consider the explanatory statement only to obtain confirmation of that meaning (cf. Acts Interpretation Act 1901 (Cth), s.15AB(1)(a), applied by Legislative Instruments Act 2003 (Cth), s.13(1)(a)).
In particular, I do not accept Ms Nayeem’s submissions which attempt to reconcile paragraphs 1.15F(1)(b) and (c) as provisions which both raise only temporal tests on the length of the actual study period of the visa applicant. Comparing the language of the two paragraphs, in my opinion, only (b) is directed at setting a minimum period occupied by the visa applicant in completing a course of study in Australia. This is shown by its use of the simple preposition ‘in’ and the reference to a ‘calendar month period’.
By contrast, the language of paragraph (c) suggests that it is directed at assessing a quality or quantity of the visa applicant’s ‘study’ engaged in during a period satisfying the temporal test in paragraph (b). That study must meet the character of “2 academic years study”. In this collocation the words “2 academic years” are adjectival of the noun “study”, and in ordinary parlance invites consideration of what could be one or two “academic years” worth or quantity or quality of “study”. That is, the concept of “2 academic years” invites the decision-maker to apply an external measure of the visa applicant’s period of study, to determine whether the study amounted to “2 academic years” worth of study undertaken in the Australian course.
In my opinion, the concurrent requirement in paragraph (b) that the visa applicant has performed that amount of study in at least 16 calendar months, points in favour of paragraph (c) requiring the measuring of the visa applicant’s Australian study against more than a period of time over which it was engaged in. Although I accept that in some circumstances ‘2 academic years study’ may be completed in ‘at least 16 calendar months’, and that there is no necessary inconsistency in treating both paragraphs as raising purely temporal tests, this is an unlikely statutory approach. Rather, the different language used in the two paragraphs points towards paragraph (c) not being a second temporal test of the visa applicant’s period of study.
I therefore do not accept the principal submission made by

Ms Nayeem’s counsel. I consider that the Tribunal did not err by opining that paragraph (c) was “not merely about the length of time” it took the visa applicant to complete the course giving rise to the Australian qualification.
I also consider that it was open to the Tribunal to take, as an appropriate measure of ‘2 academic years study’ against which to test the applicant’s Australian study under paragraph (c), the usual or normal or approved full-time workload of the course, when that workload is measured by reference to the education provider’s relevant ‘academic year’. In my opinion, it is a common or ordinary use of language, to use the words “two academic years study” to refer to academic workloads of a tertiary course of education by the volume of course work required, permitted or recommended to be undertaken by a full time student over periods constituting the education provider’s ‘academic year’. I do not consider that this usage is contrary to the ‘natural’ or ‘ordinary’ or ‘literal’ meaning of the expression used in reg.1.15F(1)(c).
In the present case, the evidence before the Tribunal pointed to the UTS Master’s degree course undertaken by Ms Nayeem as being undertaken by completing studies over four semesters comprising two academic years, each semester being occupied by the study of four subjects. On that evidence, I consider that it was open to the Tribunal to conclude that Ms Nayeem’s studies did not constitute ‘a total of at least 2 academic years study’ in the Australian course giving rise to the qualification which she relied upon for the purposes of cl.485.213.
I accept that some of the language and reasoning of the Tribunal is ambiguous and perhaps debatable. I am inclined to think that the language of reg.1.15F(1)(c) permitted the approaches taken by both the delegate and that taken by the Tribunal, with neither approach necessarily providing the only permissible measure of ‘2 academic years study’, against which a decision-maker was required to compare the content of the visa applicant’s Australian studies. However, I need not decide this point.
It was not erroneous for the Tribunal to consider the underlying objects of paragraph (c) in the light of the different matters addressed in the other paragraphs of reg.1.15F, and also to consider the use to which the ‘2 year study requirement’ definition was given in relation to subclass 485 visas and other visa types. In this context, I agree that this paragraph is directed at requiring visa applicants to meet a standard of academic content of their Australian study. I agree with the Tribunal that treating the paragraph as only inquiring whether a visa applicant has taken a period of ‘2 academic years’ to achieve the Australian qualification could lead to ‘absurd results’, in the sense of results contrary to the apparent intent of the definition.
Rather than the illustration given by the Tribunal, the unintended effect of Ms Nayeem’s construction is perhaps best illustrated by a student who has achieved credits for overseas study providing most of the academic points required for an Australian degree, and who has then been able to complete the degree by sporadic part-time attendances at an Australian university spread out over the normal full-time period of study for the course. In my opinion, a visa criterion which appears directed at identifying visa applicants who have achieved Australian qualifications by successfully undertaking their studies in Australia at an Australian educational institution, would not be properly construed if it were construed to encompass such a student who has no other Australian studies to point to.
For all of the above reasons, I am unpersuaded that the decision of the present Tribunal reveals any jurisdictional error. I must therefore dismiss the application. A consequential costs order is agreed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 23 December 2010