Perumal v Minister for Immigration and Border Protection
[2013] FCCA 2105
•20 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PERUMAL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR | [2013] FCCA 2105 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal’s decision – issue to determine was whether 2 years full time study satisfied the requirement that the study be full time over 2 academic years – application dismissed. |
| Legislation: Migration Regulations 1994, reg.1.15F, cl.485.213(a) of Schedule 2 |
| Cases Cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 216 FLR 356 Nayeem v Minister for Immigration and Citizenship & Anor [2010] FMCA 980 |
| Applicant: | POONGOTHAI BAGAVATI PERUMAL |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 318 of 2012 |
| Judgment of: | Judge O'Dwyer |
| Hearing date: | 13 September 2012 |
| Date of Last Submission: | 13 September 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 20 December 2013 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms Whittemore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the First Respondent be amended to read, “Minister for Immigration and Border Protection”.
The application filed on 21 March 2012 is dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 318 of 2012
| POONGOTHAI BAGAVATI PERUMAL |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 21 March 2012, the applicant seeks judicial review of the decision of the Second Respondent (“the Tribunal”) made on 27 February 2012; which decision affirmed an earlier decision of a Delegate of the First Respondent (“the Minister”) to deny the applicant a Skilled (Provisional) (Class VC) visa (“the Visa”).
When the matter came before me for hearing on 13 September 2012, the applicant represented herself and provided both written and oral submissions. The Minister also provided written submissions and, through Counsel, supported them with oral submissions.
Background
The applicant is a 30 year old Indian citizen who entered Australia in June 2006 on a student visa. On 15 August 2008, she applied for the visa based on her professed occupation as a computer professional.
In her application for the visa, the applicant relied on a Master of Engineering (Information Technology) conferred on her by RMIT University following study there from July 2006 to
July 2008.
However, when the applicant first commenced her studies at RMIT, she was enrolled in a Master of Applied Science. Her involvement in that course was full-time study between 16 July 2006 and 16 July 2007. She did not complete that degree, choosing instead to transfer her studies to a Master of Engineering, which she studied full-time from July 2007 to July 2008. She successfully completed her studies for the Master of Engineering and that degree was conferred on her. It was the only course of study undertaken by the applicant which was completed. The evidence is, however, that the applicant was granted credit towards her Masters of Engineering in respect of studies undertaken for the Master of Applied Science.
She contends, simply put, that she has met the requirements for the visa as she has completed two years full-time study resulting in a Masters of Engineering being conferred on her.
The question for the Minister's Delegate and the Tribunal was, and is for this Court, to determine, given that she has completed two years full-time study, whether she qualifies under the Migration Regulations 1994 (“the Regulations”) for the visa. The determinant issue is that, to qualify for the visa, the applicant must meet cl.485.213(a) of Schedule 2 of the Regulations; which clause requires the applicant to meet a “two year study requirement”.
In furtherance of her claim, the applicant also relies on her acceptance as a member of the Australian Computer Society. It was asserted that this membership can only be obtained following the completion of two years’ full time study.
Of significance, however, is the Commonwealth Register of Institutions and Courses for Overseas Students (“CRICOS”). It lists that the Master of Engineering necessitates study of 78 weeks, the equivalent of 1½ years full time study.
On 7 August 2009, the Minister’s Delegate refused to grant the applicant the Visa on the basis that the applicant had not satisfied the requirement in cl.485.213(a) of Schedule 2 of the Regulations by not completing a course of study for “two academic years”; finding the applicant only completed one course (i.e. the Masters of Engineering) which required just 1½ years of study.
The pertinent legislative framework
Cl.485.213(a) stipulates that at the time of the decision:
The following requirements to be met:
(a)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 “2 year study requirement” is defined by reg.1.15F as follows:
1.15F:
(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)…
Much in these cases tends to revolve around the meaning of
“2 academic years study” as set out in Reg.1.15F(1)(c). A helpful analysis of that requirement is set out in Nayeem v Minister for Immigration and Citizenship & Anor[1]. There Smith FM considered an apparent contradiction in the language of Reg.1.15F(1)(b) and (c), concluding:
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 providers 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 the academic workloads of a tertiary course of education by the volume of coursework required, permitted or recommended to be undertaken by a full-time student over periods constituting the education providers "academic year".
[1] [2010] FMCA 980.
The Tribunal’s findings
The Tribunal accepted that the applicant undertook full time studies throughout a 2 year period by beginning the Master of Applied Science and then transferring to the Master of Engineering. The Tribunal was careful to note that the only course completed by the applicant was the Master of Engineering.
The Tribunal found that CRICOS and RMIT considered the Masters of Engineering a course of 1½ years duration. Whilst acknowledging the Tribunal member was not bound by it, she observed that the Minister’s Department’s Procedural Advice Manual sought to clarify the meaning of “two academic years”, as referred to in reg.1.15F(1)(c), as requiring 92 weeks period of study.
The Tribunal found that for it to be satisfied that the requirement was met under the Regulations; one or more completed courses must be completed over 2 years of full time academic study. As the applicant had completed one course, which course was acknowledged, both by CRICOS and RMIT, as requiring 78 weeks, the Application did not satisfy the critical “2 academic years study” requirement for the Visa. The Tribunal adopted the approach, which Smith FM approved in Nayeem, of assessing the academic work loads to determine whether the completed course was one that required 2 academic years study, although under reg.1.15F(1)(b) that study could be completed in
16 months.
Grounds for Review
Formerly the applicant set out two grounds for review, but in written submissions other allegations were made.
The formal grounds for review can be summarised as follows:
The Tribunal committed jurisdictional error because:
1.The tribunal failed to have regard to her skills assessment and that she was a member of the Australian Computer Society. She asserts that she would not have been made a member of the Australian Computer Society had she not completed two years full-time study to achieve her degree.
2.The Tribunal erred in finding that she did not satisfy the two-year study requirement, as in fact she studied between 2006 in 2008 to achieve her Master’s degree.
Contentions
As to the first ground, the Minister contends that it is simply irrelevant as the requirement that must be addressed is whether the applicant met the two-year study requirement. In any event, the selection requirements of professional organisations are not determinant of whether a critical criterion has been met when other evidence to the contrary is before the Tribunal. Whilst the Tribunal acknowledged the applicant’s membership with the Australian Computer Society, it preferred other evidence before it which indicated that the applicant’s successful completion of the Master of Engineering had a course duration of only 78 weeks. Moreover, the weight to be afforded to evidence is a matter for determination by the Tribunal, and there has been no error in its approach.
The analysis by the Tribunal of the legislative requirement for satisfaction needed for the granting of the Visa is, in my view unassailable. Simply put, the requirement was for the applicant to have completed one or more courses, by means of two years full-time academic study, but because only one course was completed that had an academic workload of only 1½ years full-time study, the critical criterion was not met. Again, this ground is not made out and must be dismissed.
In respect of the further allegations raised in the written submissions of the applicant they are, in summary:
1.The Tribunal had, in effect, misled her and her representative, into believing that the two-year study requirement had been satisfied. It is suggested that had the applicant been aware that this was an extant issue for determination, she may have enrolled in another course to complete so that she would have satisfied the two-year study requirement. It is suggested, from my reading of the applicant's submissions, that she alleges she has not received a proper hearing because she had not been informed that a determinative issue was the need to satisfy the Tribunal that she met the two-year study requirement. Had she been alert to this issue, it is suggested, it would have alerted her to the need to provide further evidence and further submissions. In support of this allegation the applicant referred to aspects of transcript of the Tribunal’s hearing.
2.The applicant contends that the Tribunal should have given greater weight to the letter of completion from RMIT than it did.
3.The applicant claimed she was prejudiced because of delay, noting her application for the Visa was made in August 2008 and the date of the Tribunal’s determination was 27 February 2012.
In respect of the first allegation that she was misled by the Tribunal, there is simply no basis for such a contention. A fair reading of the transcript provided clearly indicates that the Tribunal was troubled about whether the applicant had fulfilled the requirement and clearly indicated it had to consider this further before making a determination. Indeed, the Tribunal engaged with the applicant’s representative on this issue to which submissions were made on behalf of the applicant. There is nothing, in my view, said by the Tribunal to induce, rationally, any confidence in the applicant that she had satisfied the Tribunal in this regard. The applicant was clearly on notice that this was the determinative issue as a consequence of the Delegate’s decision in the first instance, as well as the conduct of the hearing.
In respect of the second allegation that the Tribunal erred in the weighing of the evidence, it is trite law that the Tribunal is the sole arbiter of what weight should be given to any evidence.[2]
[2] See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 216 FLR 356 at b281-282.
Finally, in respect of the third allegation, this is clearly misconceived as the legislative requirement is that the 2 year study requirement must be satisfied before the application is lodged.[3] As found by the Delegate and the Tribunal, this requirement was not fulfilled before the filing of the visa application. It was not open to the applicant to undertake further study, because she had lodged her application before the Tribunal hearing.
[3] See cl.485.213(1)(a).
Conclusion
For the above reasons, I find that the Tribunal has not committed any error, let alone a jurisdictional error. Accordingly, the application filed on 21 March 2012 should be dismissed with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge O'Dwyer
Date: 20 December 2013
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