Riaz v MIBP
[2013] FCCA 2244
•20 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RIAZ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2244 |
| Catchwords: MIGRATION – Review of decision of Migration Review Tribunal affirming decision of delegate refusing to grant a Skilled Graduate (Temporary)(Class VC, subclass 485) visa – whether applicant had satisfied “Australian study requirement” as defined in reg.1.15F of the Migration Regulations 1994 – whether, in addition to an applicant for a visa undertaking a course of at least 92 weeks, the expression “2 academic years study” in reg.1.15F(1)(c) required that the applicant also undertake the “usual or normal or approved full-time workload” of at least 92 weeks – whether Migration Review Tribunal erred in construing “2 academic years study” as requiring the applicant to show he undertook the “usual or normal or approved full-time workload” of at least 92 weeks. |
| Legislation: Education Services for Overseas Students Act2000 (Cth), s.9 Education Services for Overseas Students Regulations 2001 (Cth), reg.2.01(2)(a) |
| Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 Catlow v Accident Compensation Commission (1989) 167 CLR 543 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398 Connect East Management Ltd v Commissioner of Taxation [2009] FCAFC 22 Ganter v Whalland (2001) 54 NSWLR 122 King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 Nayeem v Minister for Immigration & Citizenship [2010] FMCA 980 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 SAEED v Minister for Immigration and Citizenship (2010) 241 CLR 252 |
| First Applicant: | SOHAIL RIAZ |
| Second Applicant: | FARWA HAIDER |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 976 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 1 November 2013 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Prince |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The second applicant is removed as a party to this application.
The decision of the second respondent dated 11 April 2013 affirming the decision of the delegate of the first respondent dated 27 April 2012 refusing to grant the first applicant a Skilled Graduate (Temporary)(Class VC, subclass 485) visa is quashed.
The second respondent determine according to law the application made to it for review of the decision of the delegate of the first respondent dated 27 April 2012 refusing to grant the first applicant a Skilled Graduate (Temporary)(Class VC, subclass 485) visa.
Subject to paragraph 5, the first respondent pay the first applicant’s costs, as agreed or taxed.
Orders for costs previously made in the proceedings stand, and are not affected by the order for costs made in paragraph 4.
The title of the first respondent recorded in the application is amended to “Minister for Immigration and Border Protection”.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 976 of 2013
| SOHAIL RIAZ |
First Applicant
| FARWA HAIDER |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for judicial review arises out of the decision of the second respondent (Tribunal) to affirm the decision of a delegate of the first respondent (Minister) refusing to grant to the applicant, Mr Riaz, a Skilled Graduate (Temporary)(Class VC, subclass 485) visa (485 visa). Mr Riaz claims that, in affirming the delegate’s decision, the Tribunal applied an incorrect construction of reg.1.15F(1)(c) of the Migration Regulations 1994 (Cth) as those regulations applied in March 2011 (Regulations).[1]
[1] Being the Regulations incorporating amendments up to and including SLI 2010 No 297
To identify the error Mr Riaz claims the Tribunal made, it will be necessary to first set out the factual and statutory context out of which this application arises.
Background
On 14 March 2011 Mr Riaz applied for a 485 visa. To be granted a 485 visa, Mr Riaz had to satisfy the Minister, at the time he applied for the visa, that Mr Riaz had “satisfied the Australian study requirement in the period of six months ending immediately before” Mr Riaz applied for the visa. This criterion was prescribed by sub-clause 485.213(a) of Schedule 2 to the Regulations as the schedule then stood.
In March 2011, reg.1.15F(1) of the Regulations specified the circumstances in which the “Australian study requirement” would be satisfied as follows:
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.
As at March 2011, the expression “registered course” was defined in reg.1.03 of the Regulations to mean “a course of education or training provided by an institution, body or person that is registered, under section 9 of the Education Services for Overseas Students Act 2000 [ESOS Act], to provide the course to overseas students”. Section 9(1) of the ESOS Act then provided that a “designated authority for a State may recommend that an approved provider for that State be registered under this Act to provide a specified course for that State to overseas students”.
Section 10 of the ESOS Act then provided, among other things, that the Secretary of the Department of Education must cause a register to be kept for the purposes of the Act; that the register was to be called the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS); and that the Secretary was to cause the register to contain, among other things, the name of each approved provider registered to provide a specified course for a specified State, and any other matters prescribed by the regulations. Sub-regulation 2.01(2)(a) of the Education Services for Overseas Students Regulations 2001 required that there be entered on CRICOS “the duration, level and field of study of the course”.
The expression “completed” in the definition of “Australian study requirement” contained in reg.1.15F(1), when used in relation to a degree, diploma or trade qualification, was defined in reg.1.15F(2) to mean “having met the academic requirements for its award”. The expression “academic year” was defined in reg.1.03 of the Regulations to mean “a period that is specified by the Minister as an academic year in an instrument in writing for this definition”. On 14 May 2009, the Minister issued an instrument[2] (1.03 Instrument) in which he specified for the purposes of reg.1.03 that:
(a)1 academic year is at least a total of 46 weeks, being the duration of a course or courses registered under s 9 of the [ESOS Act];
(b)2 academic years is at least a total of 92 weeks, being the duration of a course or courses registered under s 9 of the [ESOS Act];
(c)3 academic years is at least a total of 138 weeks, being the duration of a course or courses registered under s 9 of the [ESOS Act].
[2] Legislative Instrument IMMI 09/040
At the time Mr Riaz lodged his application for a 485 visa, he had completed two courses provided by the Australian Institute of Commerce and Language (AICL). The first was a “Certificate III in Printing and Graphic Arts (Graphic Prepress)” (Certificate Course); and the second was a “Diploma of Printing and Graphic Arts (Printing)” (Diploma Course). Mr Riaz completed the Certificate Course on 19 December 2009; and he completed the Diploma Course on 25 September 2010. The Certificate Course and the Diploma Course were registered with CRICOS for 52 and 40 weeks respectively.
There is no issue that, at the time Mr Riaz applied for the 485 visa, the Certificate and Diploma courses were “registered courses”, Mr Riaz had completed those courses in a total of at least 16 calendar months, all instruction provided in those courses was conducted in English, and Mr Riaz undertook the courses while in Australia as the holder of a visa authorising him to study. What became an issue was whether Mr Riaz had completed the courses “as a result of a total of at least 2 academic years study”.
The issue arose as follows. The Diploma Course included two subjects that were also included in the Certificate Course. Because Mr Riaz had completed these two subjects for the purposes of the Certificate Course, AICL did not require Mr Riaz to undertake those two subjects again to fulfil the requirements of the Diploma Course. These two subjects were each described as “Recognised Prior Learning” (RPL) in the official transcript AICL issued in relation to Mr Riaz’s completion of the Diploma Course.
A delegate of the Minister concluded that the two RPLs had the effect of reducing what was a course of 40 weeks to a course of “approximately 38 weeks”.[3] That led the delegate to further conclude that Mr Riaz had completed courses which totalled less than 92 weeks which, in turn, meant that Mr Riaz did not satisfy the requirement specified in reg.1.15F(1)(c) of the Regulations.
Tribunal’s decision and the reasoning in Nayeem
[3] CB71
The Tribunal affirmed the delegate’s decision employing reasoning which may be summarised as follows:
a)Mr Riaz studied his Certificate Course and Diploma Course over a period of 92 weeks.[4] Mr Riaz, however, “did not complete an academic workload of 92 weeks”.[5]
b)By “academic work load”, the Tribunal meant “the usual or normal or approved full-time workload of the course”.[6] These words are from the reasons for judgment of Smith FM in Nayeem v Minister for Immigration & Citizenship.[7]
c)The total “usual or normal or approved full-time workload of the” Certificate Course and Diploma Course was 92 weeks.
d)Mr Riaz did not complete the total “usual or normal or approved full-time workload of the” Certificate Course and Diploma Course because he had been “given a credit transfer of two units from” his Certificate Course to his Diploma Course.[8]
[4] CB141-142, [52]
[5] CB142, [52]
[6] CB142, [53]
[7] [2010] FMCA 980
[8] CB141, [51]
The Tribunal concluded:[9]
In view of the above, the Tribunal is not satisfied that the first named applicant completed a total of at least 2 academic years study in the Certificate III in printing and Graphic Arts and the Diploma of Printing and Graphic Arts (Printing) undertaken by him at AICL. Therefore, the Tribunal is not satisfied that the first named applicant is able to meet the Australian study requirement based on these two courses by him in Australia.
[9] CB142, [54]
From this summary of the Tribunal’s reasoning and conclusion, it is apparent that the Tribunal construed the expression “as a result of a total of at least 2 academic years study” to mean “as a result of the usual or normal or approved full-time workload of a course or courses that totalled at least 92 weeks”. In so construing reg.1.15F(1)(c), the Tribunal relied on Nayeem; and that requires me to refer to the reasoning in that case.
Nayeem was decided by reference to the Regulations that were in force before the promulgation of the Migration Amendment Regulations 2009 (No.4) (Amending Regulations) which amended the Regulations into the form that applied at the time Mr Riaz applied for the 485 visa in this case.[10] The terms of reg.1.15F(1) that were considered in Nayeem are the same as the terms of reg.1.15F(1) that applied to Mr Riaz’s application except that the definition contained in the former reg.1.15F defined the expression “2 year study requirement”, rather than the expression “Australian study requirement”. In addition, the Regulations, as they applied to Nayeem, did not include the definition of “academic year” in reg.1.03, and the 1.03 Instrument did not then exist.
[10] The Regulations that applied to the application in Nayeem included the regulations that were made by the Migration Amendment Regulations 2007 (No 7). As a result of amendments made on 14 March 2013, the Subclass 485 (Skilled – Graduate) visa has been replaced by the Subclass 485 (Temporary Graduate) visa which now includes criteria set out in streams.
In Nayeem, the applicant applied for a 485 visa relying on her having obtained a Masters of Business Administration degree. She commenced that course on 27 February 2006 and completed it on 19 December 2007. The degree consisted of 16 units of study, each of which was worth six points, but the institution that conferred the degree allowed the applicant credit for four of those units of study. That meant that the applicant had in fact studied only 12 of the required 16 courses.
The delegate of the Minister assessed the applicant’s claim for a 485 visa by applying the approach contained in the Department of Immigration and Citizenship’s “Procedures Advice Manual”. Under that approach, reg.1.15F(1)(c) was interpreted as requiring an applicant to fulfil “the equivalent of 2 years study at 100% of the full-time load without benefit from credits”. The Procedures Advice Manual provided as follows:[11]
[11] [2010] FMCA 980 [10]
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.
The Tribunal affirmed the decision of the delegate. The Tribunal was of the view that the notion of an “academic year” was not to be defined only by reference to the course duration. The Tribunal said that a “more objective and logical foundation” for defining what comprised an academic year was to define the notion “by reference to a course structure within a course duration, and not solely course duration”.[12]
[12] [2010] FMCA 980 at [13]
Before Smith FM, the applicant submitted that the Tribunal erred by defining “academic year” by reference to the content of the applicant’s course. The applicant submitted that the Tribunal should have construed reg.1.15F(1)(c) by reference only to the duration of the period during which the applicant’s study took place. Smith FM rejected these submissions. The essence of his Honour’s reasoning was as follows:
a)the language of reg.1.15F(1)(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)”;[13]
b)reg.1.15F(1)(c), therefore, requires that the decision-maker assess the “quality or quantity of the visa applicant’s ‘study’ engaged in during a period satisfying the temporal test in r.1.13F(b)”;
c)because of a) and b), the notion of “2 academic years” invited the decision-maker to apply an external measure of the visa applicant’s period of study to determine whether the student amounted to “2 academic years” worth of study;[14] and
d)an appropriate measure of “2 years academic study” is the “usual or normal or approved full-time workload of the course”.[15]
[13] [2010] FMCA 980 at [22]
[14] [2010] FMCA 980 at [22]
[15] [2010] FMCA 980 at [25]
Submissions of the parties
Mr Riaz submits as follows: the length of time specified in reg.1.15F(1)(c) “refers to the officially recognised length of the relevant courses of study and the only question personal to the applicant is whether, not how, those courses were completed by the applicant”;[16] because “completion of a course or courses must be certified by the education provider, the manner of completion will necessarily need to be consistent with the requirements of the registered education provider”;[17] the reasoning in Nayeem did not apply to his application for a visa because Nayeem was decided by reference to the Regulations as they applied immediately before the amendments made by the Amending Regulations; and, as a result of the amendments, reg.1.15F(1)(c) no longer required, as Smith FM held reg.1.15F(1)(c) required, the decision-maker to look for an external measure of the visa applicant’s period of study to determine whether the study amounted to “2 academic years” worth of study because that measure was now provided by the 1.03 Instrument.
[16] Applicant’s written submissions, [23]
[17] Applicant’s written submissions, [29]
The Minister, on the other hand, submits that the decision in Nayeem governs the determination of this case. The Minister submits that the Amending Regulations “did not alter the essential fact that reg.1.15F(1)(c) remains “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)” and continues to “invite consideration of what could be one or two “academic years” worth or quantity of quality of “study””.[18] This submission is based on the following premises:
a)when the Regulations were amended into the form that applied at the time Mr Riaz applied for the 485 visa, the notion of “2 academic years study” was governed by policy;
b)that policy was contained in the Procedures Advice Manual referred to in Nayeem which I have set out earlier in these reasons;
c)the policy was concerned with two aspects of the definition of “2 academic years study” - one related to the period for which a course should be registered to qualify as an “academic year”, and the other related to the applicant having to complete the academic year “at 100% of the full time work load, without benefits from credits”; and
d)the amendments were directed to give regulatory force to one aspect of that policy, namely, the period for which a course or courses had to be registered, and to leave untouched the other aspect of the policy, namely, the need to complete at 100% of the full time workload.
[18] Minister’s written submissions, [10], quoting Nayeem (emphasis in original).
Finally, the Minister submits that the construction for which Mr Riaz contends would lead to absurdity in that it would permit institutions to allow substantial credits for previously completed subjects.
Principles of construction
Before I consider the parties’ submissions, it will be necessary to refer to the principles of statutory construction I must apply.
First, the issue before the Court concerns the interpretation of delegated legislation. The “general principles relating to the interpretation of Acts of Parliament are equally applicable to the interpretation of delegated legislation”.[19] To “use the words of Dixon J, “subordinate or delegated legislation … [stands] on the same ground as an Act of Parliament and [is] governed by the same rules of construction””.[20]
[19] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ
[20] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398 per Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ. This quoted passage is taken from the judgment of Dixon J in King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 195
Second, the purpose of statutory construction is to ascertain the intention of Parliament or the person or body promulgating the relevant piece of delegated legislation. That intention, however, is to be ascertained from the words Parliament or the person or body has chosen to express its or his or her intention, in the context of the Act or delegated legislation in which the words appear. The basic task of statutory construction, therefore, is to ascertain the meaning of the text which is to be construed, in the context of the Act or delegated legislation in which it appears.
These principles were recently reiterated by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT):[21]
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 the 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, in particular the mischief it is seeking to remedy.
[21] (2009) 239 CLR 27 at 46-49 ([47]) (Hayne, Heydon, Crennan and Keifel JJ), cases referred to omitted.
Also relevant is the following passage from the judgment of the plurality in Project Blue Sky Inc v Australian Broadcasting Authority:[22]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of the provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[22] (1998) 194 CLR 355 at 381 ([69]) (McHugh, Gummow, Kirby and Hayne JJ).
Third, one consequence of having to begin the task of statutory construction by considering the text itself is that, if that consideration yields a meaning which is not doubtful, “there is no occasion to look to the extrinsic material”.[23] That means that “it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction”.[24]
[23] Catlow v Accident Compensation Commission (1989) 167 CLR 543 at 550 per Brennan and Gaudron JJ.
[24] SAEED v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 265 ([33]) (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). Heydon J noted (at 277 ([74]) that “as is very common, reading the Explanatory Memorandum and the Second Reading Speech is much less helpful than reading the legislation.”
Fourth, it is permissible when construing legislative text to take into account the consequences of construing the text in a particular way. In Ganter v Whalland, Campbell J (as his Honour then was) said:[25]
A legitimate check for a court to use, in deciding whether an interpretation of a statute arrived at by grammatical analysis is indeed the correct interpretation, is to consider whether that interpretation produces practical results which are sensible, rather than: “‘absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’” (Cooper Brookes (Wollongong) Pty Ltd v Commission of Taxation (Cth) (1981) 147 CLR 297 at 321, per Mason J and Wilson J).
Jordan CJ expressed the same notion by saying “a Court is entitled to pay the Legislature the not excessive compliment of assuming that it intended to enact sense and not nonsense” (Hall v Jones (1942) 42 SR (NSW) 203 at 208 . . . .
[25] (2001) 54 NSWLR 122 at 131 ([35], [36])
However, as Campbell J further said:[26]
From the strength of the language which these judges employed to describe the sort of consequences which will cause a possible construction to be rejected, it is apparent that an anomaly arising from what, on all other tests of construction, is the correct construction of legislation, must be a very serious one, before the court is justified in using that anomaly as a reason for rejecting what otherwise seems the correct construction. Were courts to act otherwise, they would risk taking over the function of making policy choices which properly belongs to the legislature.
[26] (2001) 54 NSWLR 122 at 131 ([36])
The need for caution in relying on consequences to reject a particular interpretation of a statutory provision was emphasised by the Full Federal Court in Connect East Management Ltd v Commissioner of Taxation:[27]
Resort to the odd or anomalous consequences of a particular construction of legislation is to be approached with caution. In Esso Australian Resources Ltd v FCT (1998) 83 FCR 511 at 518–519, speaking of ss 118 and 119 of the Evidence Act 1995 (Cth), Black CJ and Sundberg J said:
In our opinion the plain language of the sections is confirmed by the only directly relevant extrinsic material, which shows that Parliament intended the consequence that is said by the appellant to be anomalous. Especially when different views can be held about whether the consequence is anomalous on the one hand or acceptable or understandable on the other, the Court should be particularly careful that arguments based on anomaly or incongruity are not allowed to obscure the real intention, and choice, of the Parliament.
In Ganter v Whalland [2001] NSWSC 1101 at [36], in connection with the caution just referred to, Campbell J highlighted the risk of the court “taking over the function of making policy choices which properly belongs to the legislature”. See also Pearce and Geddes, Statutory Interpretation in Australia (6th ed, Butterworths, 2006) at [2.36].
[27] [2009] FCAFC 22 at [41] (Sundberg, Jessup and Middleton JJ)
Approach
To determine the issue before me, therefore, I propose to proceed as follows. First, I need to consider whether, as submitted by the Minister, the decision and reasoning in Nayeem governs the resolution of the issue of construction in this case. Second, if I find that the decision and reasoning in Nayeem do not govern the resolution of the issue before me, I must construe for myself the language of reg.1.15F(1)(c) initially, at least, in the context of reg.1.15F as a whole. Third, if after considering the text of reg.1.15F(1)(c) I conclude there is doubt as to its meaning, I will consider whether the extrinsic material on which the Minister relies resolves the doubts one way or the other. Fourth, if after I consider the extrinsic material I construe reg.1.15F(1)(c) in the manner contended for either by Mr Riaz or the Minister, I must consider whether that construction leads to absurdity or inconvenience sufficient to reject that construction.
Does Nayeem determine the issue in this case
In my opinion, neither the reasoning nor the decision in Nayeem governs the resolution of the issue that is before me. Although the text of reg.1.15F(1)(c) as it applied to Mr Riaz’s application for a 485 visa is the same as the text of reg.1.15F(1)(c) as it applied in Nayeem, one expression, namely, “academic year” was defined in the Regulations as they applied to Mr Riaz’s application for a 485 visa, but not in the Regulations as they applied in Nayeem. That difference alone requires me to construe reg.1.15F(1)(c) afresh.
Construction of reg.1.15F(1)(c)
The starting point to the construction of reg.1.15F(1)(c) as it applied in March 2011 is the observation that reg.1.15F(1) describes a state of affairs which the Minister must be satisfied exists at the time prescribed in reg. 485.213(a) of Schedule 2 to the Regulations, namely, at any time during a six month period immediately before the day on which a person applies for a 485 visa. The relevant state of affairs is the end of a process - the completion of “1 or more degrees, diplomas or trade qualifications”. Given the definition of “completed” in reg.1.15F(2) when used in relation to a degree, diploma or trade qualification, the process which the Minister must be satisfied has been completed at the relevant time is the person’s meeting the academic requirements of the relevant educational institution for the award of the degrees, diplomas, or trade qualifications as the case may be.
The next thing to observe is that reg.1.15F(1) does not apply simply to a person’s having met academic requirements for the award of degrees, diplomas, or trade qualifications; reg.1.15F(1) attaches conditions. First, it requires that the degree, diploma or trade qualification was awarded by an Australian educational institution. Second, reg.1.15F(1) requires that the person has met the academic requirements for the degree, diploma or trade qualification “as a result of a course or courses”. Third, the course or courses must have been completed in the circumstances specified in reg.1.15F(1), one of which are those prescribed by paragraph (c) of reg.1.15F(1), namely, the course or courses were “completed as a result of a total of at least 2 academic years study”.
That leads me to the phrase “completed as a result of a total of at least 2 academic years study”, the correct construction of which will determine the issue before me. The first thing to notice is the word “completed”. That word denotes or points to two things. The first is a process or activity that occurs over time but which has ended. The second is what remains at the end and as a result of the process or activity. To say, for example, that “John completed a drawing” is to say that John has undertaken an activity, namely, drawing, and that, as a result of that activity, he has produced a drawing. Thus, in the phrase “completed as a result of a total of at least 2 academic years study”, the process or activity to which “completed” refers is that denoted by the word “study” which appears at the end of the phrase. The end result of the study to which the word “completed” refers is the “course or courses” contained in the chapeau to reg.1.15F(1).
The second thing to notice about the phrase “completed as a result of a total of at least 2 academic years study” is the expression “as a result of”. This expression links “completed” with “a total of at least 2 academic years study”. The expression signifies that one of the referents of “completed”, namely, the “course or courses” referred to in the chapeau to reg.1.15F(1), has come about because of “a total of at least 2 academic years study”.
The third thing to notice is the word “study”. This denotes an activity or set of activities, namely the activity or activities which, when completed, results in the “course or courses” referred to in the chapeau to reg.1.15F(1). The activities which qualify as “study” for the purposes of reg.1.15F(1)(c) are the activities a relevant educational institution referred in the chapeau to reg.1.15F(1)(c) requires a person to undertake in order to complete the “course or courses” referred to in the chapeau and, as a result, earn the award of the degree, diploma, or trade qualification. That follows from the definition of “completed” in reg.1.15F(2) to mean, when used in relation to a degree, diploma or trade qualification, “having met the academic requirements for its award”. That is, because the chapeau to reg.1.15F(1) provides that a degree, diploma or trade qualification can only be awarded as a result of the completion of a course or courses, it follows that the study that must be undertaken to complete the course or courses before a degree or diploma or trade qualification may be awarded must be of the kind that meets the academic requirements the educational institution which awards the degree, diploma, or trade qualification attaches to their award.
The fourth and final thing to notice is the words “2 academic years” immediately before the word “study”. In Nayeem, Smith FM said that the words “2 academic years” are “adjectival of the noun ‘study’”.[28] By this his Honour simply meant that the words “2 academic years” modify or qualify the noun “study”. But in what way do these words modify or qualify “study”?
[28] [2010] FMCA 980 at [22]
If, as I have concluded, the word “study” denotes the activities educational institutions prescribe for the award of a degree, diploma, or trade qualification, the words “2 academic years” cannot relate to the type or quality of the activities that comprise any given “study”; that is a matter to be prescribed by the educational institution awarding the relevant degree, diploma, or trade qualification. The modification the words “2 academic years” perform on “study” has to do with something else; and that something else is that which the words themselves expressly denote – time. That is, the words “2 academic years” modify the time over which the study prescribed by the educational institutions conducting the course must be conducted. When paragraph (b) of the 1.03 Instrument is read into the phrase “2 academic years study”, the activities which an educational institution prescribes for the completion of a course or courses that must be completed before the education institution awards the degree, diploma, or trade qualification must take place over a period which has a duration of at least 92 weeks.
In my opinion, therefore, at the time Mr Riaz applied for a 485 visa, reg.1.15F(1)(c) simply required that the applicant for a 485 visa had to show that he or she had completed a course or courses that were registered under s.9 of ESOS Act for a period of at least 92 weeks. There is nothing in the language of reg.1.15F(1)(c) which suggests that the applicant also had to show that he or she had completed “the usual or normal or approved full-time workload of a course or courses that totalled at least 92 weeks”. Nor is there anything in the language of reg.1.15(F)(1) that suggests reg.1.15F(1)(c) is directed to the quality of an applicant’s study.
Extrinsic material
My consideration of the text of reg.1.15F(1)(c) leaves me in no doubt that reg.1.15F(1)(c) only required that an applicant for a 485 visa show he or she completed a course or courses that were registered for a total duration of at least 92 weeks. I will now assume, however, there is some doubt about this and consider whether the extrinsic material on which the Minister relies favours the construction of reg.1.15F(1)(c) for which the Minister contends.
As I note earlier in these reasons, the Minister submits that extrinsic material shows that the Amending Regulations were directed to put into legislative form one of two aspects of policy, but leave untouched the other aspect. The relevant extrinsic material on which the Minister relies is the Procedures Advice Manual, and the explanatory memoranda for the Amending Regulation and the 1.03 Instrument. In particular, the Minister relies on the following passage from the Explanatory Statement to the Amending Regulation:
The purpose of this amendment is to ensure that the Government’s policy in relation to the length of the academic year, which is currently expressed in policy, is incorporated in a legislative instrument.
The Minister also relies on the following passage from the Explanatory Statement to the 1.03 Instrument:
The intention is to remove any uncertainty as to the number of weeks a course must be registered on the Commonwealth Register of Institutions and Courses for Overseas Students. Previously, this measurement existed only in policy.
In my opinion, there is nothing in either explanatory statement which recognises two aspects of one policy; and there is nothing in any of the explanatory statements which indicates an intention to regulate only one aspect of policy and leave the other unregulated. The explanatory statements refer only to “policy”. If, as the Minister submits, there were two aspects of the one policy, the more natural inference to draw from the fact the explanatory statements do not refer to these aspects is that the amendments were designed to replace the two aspects of the one policy with what is contained in the text of the reg.1.15F(1)(c) and the 1.03 Instrument.
If, therefore, I were to have any doubt about the meaning of the text of reg.1.15F(1)(c), the extrinsic material on which the Minister relies, rather than resolving the doubt in favour of the construction for which the Minister contends, would have resolved the doubt in favour of the construction for which Mr Riaz contends.
Claimed absurdity
I now consider whether the construction contended for by Mr Riaz, and which, on the analysis I have undertaken earlier in these reasons, I have concluded is borne by the text of reg.1.15F(1)(c), gives rise to any absurdity.
In my opinion, the construction contended for by Mr Riaz does not result in absurdity. First, reg.1.15F leaves it to the educational institutions to specify what is required for a person to complete a course that will result in the conferral of a degree, diploma, or trade qualification, and leaves it to those who administer the ESOS Act to regulate the educational institutions’ activities in that regard. Whether or not any registered course should recognise a credit is just one of the matters that reg.1.15F leaves to the educational institutions to prescribe and to those administering the ESOS Act to regulate.
Second, the construction contended for by Minister has the potential to produce its own absurdities. One is suggested in this case. The solicitor for the Minister accepted that if Mr Riaz completed the two subjects in the Certificate Course for which he had been given credit, Mr Riaz would have satisfied the full workload. In other words, Mr Riaz would have satisfied reg.1.15F(c) if he had twice completed the same subjects. It is not apparent what purpose or policy would be served in requiring a person to undertake for the second time a subject he had completed in another course. Another potential absurdity is this. What if a student fails to attend one hour’s lecture for one subject? On the construction favoured by the Minister, the applicant for a 485 visa would fall short of the standard workload for the course.
Conclusions and disposition
On the proper construction of reg.1.15F(1)(c) of the Regulations as they applied at the time Mr Riaz applied for a 485 visa, an applicant for a 485 visa needed only to demonstrate that he or she had completed a course or courses that had been registered under the ESOS Act for a total of at least 92 weeks. It was not necessary for an applicant to also show that he or she had completed the “usual or normal or approved full-time workload of” a course or courses so registered. Accordingly, the Tribunal made a jurisdictional error:
a)by interpreting reg.1.15F(1)(c) as requiring an applicant to show he or she had completed a “usual or normal or approved full-time workload of” a course or courses of at least 92 weeks, and
b)on the basis of that interpretation, concluding that Mr Riaz did not meet reg.1.15F(1)(c) because Mr Riaz had been given a credit for two subjects he had previously completed..
I propose, therefore, to quash the decision the Tribunal made on 11 April 2013, and to order that the Tribunal review Mr Riaz’s application according to law.
The parties submitted that the Tribunal incorrectly included the applicant’s wife as an applicant before it and, for that reason, she should not be a party to these proceedings. The parties have agreed that the second applicant should be removed as a party to these proceedings, and I propose to so order.
I also propose to order that the Minister pay Mr Riaz’s costs of the application. I was informed that Judge Barnes had vacated a previously appointed hearing date and ordered that the applicants pay the costs thrown away as a consequence of that hearing being vacated. The costs order I propose to make will note that the previous costs orders will stand.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 20 December 2013
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