Sandhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1299
•10 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Sandhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1299
File number: PEG 43 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 10 June 2021 Catchwords: MIGRATION – Temporary Graduate visa – decision of the Administrative Appeals Tribunal – whether the Tribunal overlooked an argument – whether the Tribunal failed to consider documentary evidence or ignored submissions – whether conducting a hearing via Microsoft Teams was unfair – whether the Tribunal was biased – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 476
Migration Regulations 1994 (Cth), regs 1.15F, 2.26AC(6), cll 485.221, 485.222 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Bhatt v Minister for Immigration & Citizenship [2012] FMCA 317
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 110 Date of hearing: 8 June 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 43 of 2021 BETWEEN: KESHVEEN KAUR SANDHU
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
10 JUNE 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL:
The applicant is a citizen of Singapore. She arrived in Australia on a student visa in April 2018 (Court Book (“CB”) 11).
On 31 August 2018, the applicant applied for a Temporary Graduate (class VC) Temporary Graduate (Graduate Work) (subclass 485) visa (the “visa”) (CB 1-18).
On 14 November 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 25-28). The delegate was not satisfied that the applicant met cl 485.221 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate found that the qualification the applicant relied upon (her Practical legal Training at The College of Law) was not “an eligible Australian Qualification” and, as such, the applicant did not meet “the Australian study requirement”.
The applicant applied for a review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) on 1 December 2018 (CB 29-30).
On 11 November 2020 and 12 November 2020, the applicant, through her registered migration agent, provided the Tribunal with a statutory declaration, an outline of submissions and supporting documents (CB 44-66).
On 16 November 2020, the applicant appeared before the Tribunal (CB 67-70).
On 19 November 2020, the Tribunal invited the applicant to provide information, as follows (CB 73-74):
Under r.1.15F(1) of the Regulations, in order to satisfy the ‘Australian study requirement’ a person must satisfy the Minister that they have completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses. You have indicated that you completed the following qualifications which you submit are ‘degrees’ for the purposes of the ‘Australian study requirement’:
•a Bachelor of Laws from 27 Feb 2012 to 12 September 2017 (at Murdoch University), and
•a Graduate Diploma of Legal Practice from 18 February 2018 to 23 August 2018 (at The College of Law)
You are invited to give information in writing regarding whether those courses satisfy the requirements:
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.
On 3 December 2020, the applicant, through her agent, provided responses to the request for information (CB 75-82).
The applicant appeared before the Tribunal at a further hearing on 10 December 2020
(CB 91-93).
On 11 January 2021, the applicant, through her agent, provided further written submissions and supporting documents (CB 98-123). Further information was then provided on 23 January 2021 (CB 125-130).
On 9 February 2021, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 134-147).
On 2 March 2021, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 14 pages long and spans 60 paragraphs.
The Tribunal began by identifying the type of visa under review. It then summarised the delegate’s decision and confirmed that the applicant had appeared before the Tribunal on two occasions. The Tribunal explained that the applicant had been invited to provide further information and had done so (at [1]-[5]). The Tribunal further confirmed that the hearings had taken place via Microsoft Teams (at [6]).
The tribunal noted the requirements of cll 485.221 and 485.222 of the Regulations (at [8]). It identified that the issue in the present case was whether the applicant met those requirements (at [9]).
The Tribunal then explained in detail that the applicant did not satisfy cl 485.221 of the Regulations because the applicant’s Practical Legal Training was not “an eligible qualification”. The Tribunal explained that the applicant had argued that it was the Graduate Diploma of Legal Practice which relied on to meet the ‘Australian study requirement’. This, the Tribunal noted, raised additional issues regarding whether the Graduate Diploma of Legal Practice was a ‘degree, diploma or trade qualification’ for the purposes of the Australian study requirement and whether the Graduate Diploma of Legal Practice course undertaken by the applicant was a ‘registered course’ for the purposes of that requirement (at [10]).
The Tribunal noted that, in order to meet reg 1.15F of the Regulations (which contained the Australian study requirement), the applicant needed to have completed one or more degrees, diplomas or trade qualifications at an Australia institution which was a result of a course or courses (at [11]):
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.
The Tribunal then referred to the relevant definitions of “degree”, “diploma”, “trade qualification”, “registered course”, “completed”, “academic year” and “16 calendar months” (at [12]-[14]).
The Tribunal then extracted reg 2.26AC(6) of the Regulations (at [15]).
The Court notes that the Tribunal’s reference to what is stated in reg 2.26AC(6) is incorrect. Regulation 2.26AC(6) instead provides:
(6) In Schedule 6D and this regulation:
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 on 1 July 1999), 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.
employed means engaged in an occupation for remuneration for at least 20 hours a week.
professional year means a course specified by the Minister in an instrument in writing for this definition.
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 ASCO; or
(c) a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group 3 in ANZSCO.
The Tribunal then itemised all of the documents the applicant had provided prior to the Tribunal hearing on 16 November 2020 (at [16]) and confirmed that the applicant had also provided written submissions from her agent (at [16]-[17]).
The Tribunal then explained that it had written to the applicant asking her to provide further information and that a response had been received on 3 December 2020. The Tribunal confirmed it had held a further hearing so that it could put information to the applicant for comment (at [18]).
The Tribunal then itemised the further material, submissions and documents provided by the applicant on 11 January 2021 and 23 January 2021 (at [19]-[20]). The Tribunal noted that in the applicant’s visa application she had stated that she had completed a Bachelor of Laws on 12 September 2017 and a Graduate Diploma of Legal Practice on 23 August 2018 (at [21]).
The Tribunal noted that it appeared that the delegate had found that the applicant did not meet the Australian study requirement as the overseas confirmation of enrolment that she provided stated that the applicant was enrolled in a Practical Legal Training Internship (at [22]). The applicant told the Tribunal that she did not provide the correct documentation to the delegate (at [23]). The applicant stated that the delegate had not given her the opportunity to correct the error (at [24]).
The applicant confirmed that she had completed the Graduate Diploma of Legal Practice through a course of full-time and online study in Perth (at [25]).
The Tribunal raised a concern with the applicant. Relevantly, the applicant was told that the Graduate Diploma of Legal Practice did not appear on the current list of registered courses in the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and the website of The College of Law suggested that the course the applicant had undertaken online through the Perth campus was not a ‘registered course’ (at [26]).
The Tribunal put the following information to the applicant pursuant to s 359AA of the Act:
•The applicant was relying in part of the completion of a Graduate Diploma of Legal Practice completed at The College of Law to meet the Australian study requirement for the visa. Regulation 1.15F of the Regulations sets out the requirements which need to be met to satisfy the Australian study requirement. This includes a requirement that courses be ‘registered courses’ under the Education Services for Overseas Students Act 2000.
•A current list of registered courses appears in CRICOS.
•The applicant provided a CRICOS provider number for The College of Law. The entry on CRICOS for The College of Law (with the corresponding provider number) records a course location of St Leonards, NSW. The applicant’s evidence was that she studied The College of Law Graduate Diploma Course in Perth Western Australia.
•Further, The College of Law website page section titled ‘Information for international students studying in Australia’ states that:
You will need to undertake the CRICOS approved PLT program, which is the full-time face-to-face course at our St Leonards campus in Sydney. (CRICOS course code 069734C)
If you apply for this program, we can provide you with an eCOE which will allow you to obtain a student visa.
The Tribunal continued:
28. The Tribunal indicated that the information was relevant, subject to the applicant’s comment or response, because it may lead the Tribunal to find that the Graduate Diploma she completed is not a ‘registered course’ for the purposes of the relevant Regulations. This would lead the Tribunal to find that the applicant did not meet the Australian Study Requirement. The consequence of the Tribunal relying on the information is that it may affirm the decision under review.
29. The Tribunal indicated it would allow the applicant time to respond to the information following the hearing.
The Tribunal noted that the applicant’s migration agent had advised that he was told by The College of Law that the course was a registered course for the purposes of the Regulations. It was noted that a Student Services Team Leader at the College of Law had stated in an email that “Our courses are registered CRICOS approved program. The college meets all required standards”. Further, the College’s Graduate Diploma document and certificate of completion also stated that the course was “recognised under the Australian Qualification Framework” (at [30]).
The Tribunal also noted that a letter from the Manager of Student Services at the College of Law stated (at [31]):
This letter is to confirm that, Miss Keshveen Kaur Sandhu, Date of Birth [omitted], was enrolled in The College of Law Practical Legal Training Program, leading to the award of the Graduate Diploma of Legal Practice. Keshveen Kaur was enrolled in the Full Time Online WA Course, which commenced on 19 February 2018. The coursework component of the course completed on the 1 June 2018. The hours of the Full Time course are 35-40 hours per week with assignments due every 2-3 days.
To satisfy all the requirements of the Program, Keshveen Kaur had to complete the Work Experience Component (the equivalent of 15 weeks experience). Keshveen Kaur also had to complete the Continuing Professional Education Component. When all three components are successfully completed, Keshveen Kaur will be eligible for the Graduate Diploma of Legal Practice.
Completion of the Graduate Diploma of Legal Practice, and a recognised Bachelor of Law (or equivalent) is part of the requirements to apply for admission as an Australian Lawyer.
The Tribunal noted that the letter did not confirm whether the course was a “registered course” (at [32]). It explained that in further discussions between the College of Law and the applicant’s migration agent, it was confirmed that the course was not a “registered course” (at [32]).
The Tribunal then set out certain passages of the written submissions that had been provided. Those submissions conceded that the Graduate Diploma of Legal Practice that the applicant completed was not a registered course. The submission noted that the applicant was “perturbed” by the circumstances as the same course to the one completed by the applicant, if completed in person and in a different state, is a registered course (at [33]-[34]). The Tribunal then referred to the applicant’s submissions. Those submissions asked the tribunal to find that the applicant met the Australian study requirement notwithstanding that the Graduate Diploma of Legal Practice was not a “registered course” (at [35]).
The Tribunal accepted that the applicant had completed the Graduate Diploma of Legal Practice through online full-time study in Perth. The Tribunal accepted that The College of Law was a registered provider on CRICOS for that course. However, that was only the case if the course was offered full-time and face to face at a particular location in another state. However, the College of Law was not a registered provider for any other version of the course (at [36]).
As the Graduate Diploma of Legal Practice was the only qualification the applicant had completed in the six months before the application was made, the Tribunal found that it was the only qualification that she relied upon to meet the Australian study requirement (at [37]). The Tribunal accepted that the applicant had completed the Graduate Diploma of Legal Practice. The issue that remained, however, was whether it was “eligible to meet the Australian study requirement” (at [38]).
The Tribunal explained that it had outlined the relevant definitions to the applicant at the hearing (at [39]-[40]). There was nothing to indicate that the Graduate Diploma of Legal Practice met the requirements of a trade qualification. It noted that the applicant did not suggest that her qualifications would meet the definition of ‘trade qualification’ and her migration agent agreed that the Graduate Diploma of Legal Practice did not meet the trade qualification definition (at [41]). The Tribunal was not satisfied that the Graduate Diploma of Legal Practice was a trade qualification (at [42]).
The Tribunal then considered whether the Graduate Diploma of Legal Practice met the definition of “diploma”. It noted that a diploma must be at the Australian Qualification Framework level 5 (at [43]). It explained that a graduate diploma was an Australian Qualification Framework Level 8 and, therefore, was not a “diploma” as defined by the Regulations. The applicant’s migration agent agreed and, accordingly, the Tribunal found that the Graduate Diploma of Legal Practice was not a “diploma” (at [44]).
The Tribunal then noted that the definition of “degree” makes reference to a “postgraduate diploma” but dos not refer to a “graduate diploma” (at [45]). The applicant submitted that “postgraduate” and “graduate” are synonymous. The applicant also submitted that the Graduate Diploma of Legal Practice was an extension of the applicant’s Bachelor’s degree (at [46]).
The Tribunal determined that as the Graduate Diploma of Legal Practice was provided by a separate provider to the applicant’s Bachelor’s degree, it was a distinct qualification (at [47]).
The Tribunal then outlined the facts in Bhatt v Minister for Immigration & Citizenship [2012] FMCA 317 (“Bhatt”) wherein the Court was considering whether a graduate certificate was a “degree”, “postgraduate degree” or a “diploma” (at [48]). The Tribunal explained that it was implicit in the reasoning in Bhatt that a graduate diploma would be regarded differently to a graduate certificate (at [49]).
The Tribunal concluded:
50. The tests effectively articulated by his Honour were whether the qualification in question fell within the “natural meaning of the term ‘postgraduate diploma’” when used in the definition of degree, or in the alternative whether “in name, recognition or significance the same qualification as postgraduate diplomas”. Having regard to the ordinary meaning of ‘postgraduate diploma’ and given the applicant could not have gained entry to the Graduate Diploma in Legal Practice, without having first completed the Bachelor of Laws the Tribunal finds that the applicant’s Graduate Diploma falls within the natural meaning of postgraduate diploma. Accordingly, the Tribunal finds that the Graduate Diploma in Legal Practice is a ‘degree’ as defined by r.2.26AC(6).
While the Tribunal was satisfied that the Graduate Diploma of Legal Practice fell within the definition of “degree”, it remained the case that, as the applicant had undertaken the course as a full-time online student in Perth, the course was not a “registered course” (at [51]).
The Tribunal expressed sympathy for the applicant’s situation. It noted that the applicant had acted entirely in good faith and that the consequences of the refusal were “detrimental”. The Tribunal was of the view that “The College of Law did not appreciate the implications of the different course modalities and locations on CRICOS registration” (noting that the applicant had been advised by The College of Law itself that she had in fact completed a registered course) (at [52]).
The Tribunal then explained that the criteria are not discretionary. The Australian study requirement must be met by the applicant and there is no scope on the part of the Tribunal to waive the requirement. The Tribunal explained that the registration of courses was a matter for CRICOS and the reasons why certain courses are defined and registered in a particular manner is not a matter in relation to which the Tribunal has any jurisdiction. The Tribunal noted that while the implications for the applicant were unfortunate, the requirements were clear and while the applicant may have received incorrect, misleading or negligent advice from third parties, this did “not amount to a fraud on the Tribunal” (at [53]).
The Tribunal understood the applicant’s frustration at the “incongruous” result arising from her undertaking the Graduate Diploma online in Perth. However, it was noted that the Tribunal did not have the power to change the criteria or designate a course as “registered” when it was not (at [54]).
The Tribunal found that the Graduate Diploma of Legal Practice, undertaken by the applicant in Perth, online and on a full-time basis, was not a “registered course” for the purposes of the Australian study requirement (at [55]).
The Tribunal concluded as follows:
Does the applicant meet the Australian study requirement?
56. The Tribunal has found that the Graduate Diploma in Legal Practice is a ‘degree’ as defined by r.2.26AC(6).
57. Having regard to all the evidence and material before it, the Tribunal finds that the applicant has completed 2 qualifications in Australia, a Bachelor of Laws and Graduate Diploma in Legal Practice, which are both ‘degrees’ as defined in r.2.26AC(6). The Tribunal finds that the qualifications were a result of courses that were completed in a total of at least 16 calendar months and as a result of at least 2 academic years (as specified) study. The Tribunal finds on the information before it that all instruction for the courses were conducted in English and that the applicant held a number of student visas which authorise study throughout this period.
58. However, the Tribunal finds that the Graduate Diploma of Legal Practice course undertaken by the applicant at The College of Law online at the Perth campus is not a registered course, being a course of education provided by institutions that are registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students. Accordingly, this course does not meet the requirements of requirement r.1.15F(1)(a).
59. Accordingly, the Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant does not meet cl.485.221.
The Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [60]).
PROCEEDINGS IN THIS COURT
In her application for judicial review dated 2 March 2021, the applicant provides 14 “grounds of review” as follows:
1. I like to state that The Administrative Appeals Tribunal (AAT) affirmed the decision not to grant me, the applicant a Skilled (Provisional) (Class VC) visa on 9 February 2021.
2. AAT overlooked the related courses and decided to affirm the decision.
3. The Tribunal failed to consider documentary evidence and submissions provided to the Tribunal.
4. I came to Western Australia in April 2011 to study at Canning College and did my Western Australia University Preparatory Program (WAUPP).
5. I started my Bachelor of Laws at Murdoch University February 2012 on a student visa and while I was almost completing my degree I went to the Department of Immigration and the University for advise as to what my next step was.
6. After my graduating from Murdoch University with my Bachelor of Laws on September 2017, I straightaway applied to the College of Law to do my Graduate Diploma in Practical Legal Training. The Graduate Diploma was a requirement for me as it was the only way that I could get my skills accessed and be admitted to the Supreme Court of WA as a practicing solicitor.
7. I started my course in February 2018 and the course and training was completed in the month of August 2018. I then applied for my 485 graduate work skilled visa.
8. The application was refused. I went to an agent who then helped me apply for an appeal to the AAT.
9. The Tribunal conducted online hearing with the Tribunal member on the 16th of November 2020. The Online hearing was not very audible, and I am not certain if Tribunal Member understood everything.
10. During the hearing, the member was satisfied that all the documents required were submitted but needed more information regarding my graduate diploma (PLT course), the Tribunal member then requested for further documentations.
11. The documents were provided by my agent to the Tribunal.
12. On the 9th of February 2021, the AAT refused to grant my visa on the basis that it was not on the CIRCOS list and was not linked to my previous degree of study, although the evidence was provided.
13. My appeal to this Honourable Court is to provide me with Natural Justice and set aside the refusal decision of the Department of Home affairs and set aside the decision made by Administrative Appeals Tribunal (Migration & Refugee Division Review).
14. AAT's decision has been based on judicial error. I should have been given an opportunity for a hearing the relativity of my course. Hearing was incorrect and thus against the law of natural justice during pandemic period. Over and above, had AAT followed the law and sought a physical hearing opportunity which is being conducted in Perth, WA; to defend myself appropriately, the Tribunal decision would be remitted.
The applicant filed an affidavit in support of the judicial review application affirmed 26 February 2021. That affidavit repeated the grounds of review.
The applicant was given an opportunity to file an amended application, any supporting affidavits and an outline of written submissions. No further materials were filed.
The materials before the Court thus include the application for judicial review dated 2 March 2021, a Court Book numbering 147 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 17 May 2021.
At the hearing, the applicant appeared without legal representation. The Court confirmed with her that she had received a copy of the Court Book and the Minister’s written submissions.
Although the applicant is legally trained, she appeared before this Court without legal assistance. As per the now standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7], the Court gave the applicant an opportunity to elaborate on her grounds of review and outline any other concerns she might have with the Tribunal’s decision.
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa she seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated, in effect, that she was disadvantaged by the fact that her hearing was not “face to face”, she was not given enough time to prepare, the Tribunal member was frustrated with the “video technology” and appeared to have “made up her mind” and didn’t let the applicant speak.
CONSIDERATION
Grounds 1, 4-8, 10-11 and 13
Grounds 1, 4, 5-8, 10-11 and 13 provide as follows:
1. I like to state that The Administrative Appeals Tribunal (AAT) affirmed the decision not to grant me, the applicant a Skilled (Provisional) (Class VC) visa on 9 February 2021.
…
4. I came to Western Australia in April 2011 to study at Canning College and did my Western Australia University Preparatory Program (WAUPP).
5. I started my Bachelor of Laws at Murdoch University February 2012 on a student visa and while I was almost completing my degree I went to the Department of Immigration and the University for advise as to what my next step was.
6. After my graduating from Murdoch University with my Bachelor of Laws on September 2017, I straightaway applied to the College of Law to do my Graduate Diploma in Practical Legal Training. The Graduate Diploma was a requirement for me as it was the only way that I could get my skills accessed and be admitted to the Supreme Court of WA as a practicing solicitor.
7. I started my course in February 2018 and the course and training was completed in the month of August 2018. I then applied for my 485 graduate work skilled visa.
8. The application was refused. I went to an agent who then helped me apply for an appeal to the AAT.
…
10. During the hearing, the member was satisfied that all the documents required were submitted but needed more information regarding my graduate diploma (PLT course), the Tribunal member then requested for further documentations.
11. The documents were provided by my agent to the Tribunal.
…
13. My appeal to this Honourable Court is to provide me with Natural Justice and set aside the refusal decision of the Department of Home affairs and set aside the decision made by Administrative Appeals Tribunal (Migration & Refugee Division Review).
None of these grounds of review identify jurisdictional error. Rather, they refer to factual matters and historical background and context – none of which are disputed (grounds 1, 4, 5-8 and 10-11) and to the relief the applicant seeks (ground 13). The Court also notes that it has no jurisdiction to set aside the decision of the Department of Home Affairs: the Act, s 476(2) and (4).
Grounds 1, 4-8, 10-11 and 13 are dismissed.
Grounds 2 and 12
Ground 2 and Ground 12 provide:
2. AAT overlooked the related courses and decided to affirm the decision.
…
12. On the 9th of February 2021, the AAT refused to grant my visa on the basis that it was not on the CIRCOS list and was not linked to my previous degree of study, although the evidence was provided.
The applicant appears to be arguing that the Tribunal overlooked an argument raised by her. Specifically, that the Graduate Diploma in Legal Practice was an extension of her Bachelor’s Degree or that the Tribunal was incorrect in finding that the Bachelor’s degree and the Graduate Diploma in Legal Practice were not “related”.
The Tribunal did not overlook this argument. The Tribunal considered it as follows:
45. The Tribunal notes the definition of 'degree' in r.2.26AC(6) includes a reference to 'postgraduate diploma' but makes no reference to 'graduate diploma'. The applicant's submissions did not address this issue directly, though the submissions included references to the applicant completing a '(post) graduate diploma' and 'post graduate diploma'. The issue was discussed with the applicant and her representative at the hearing.
46. The Tribunal understood the applicant to submit that 'postgraduate' and 'graduate' can be considered to be synonymous. The Tribunal notes that the AQF provides that a graduate diploma is AQF Level 8 and a postgraduate course. The applicant submitted that the Graduate Diploma of Legal Practice was a requirement for admission to practice as a lawyer and therefore an extension of her earlier Bachelor of Laws degree. The attainment of a Bachelor of Laws degree at a Western Australian university was a prerequisite for entry to the Graduate Diploma course. This meant that it was properly regarded as a postgraduate diploma course of the type specified in the subregulations.
47. The Tribunal indicated that as the course was provided by a separate provider and was not a condition of completion of the Bachelor of Laws qualification it appeared it should be properly regarded as a distinct qualification directed to the purpose of qualification for legal practice. However, the Tribunal accepted that it was a qualification which followed on from the successful attainment of a Bachelor of Laws or Juris Doctorate and was a prerequisite for admission as lawyer in Australia.
The Tribunal clearly accepted that the Bachelor’s degree and the Graduate Diploma of Legal Practice were “related” – in the sense that both were a requirement for admission as a lawyer in Australia. The Tribunal then considered the applicant’s argument that the Graduate Diploma of Legal Practice and the Bachelor’s degree were “related” such that the Graduate Diploma of Legal Practice was an “extension” of the degree. It expressly rejected that argument and gave reasons why it did so.
The Tribunal’s reasons for finding that the Graduate Diploma of Legal Practice was not an extension of her Bachelor’s degree were entirely logical, rational and reasonable. Here:
·as the Tribunal stated, the Graduate Diploma of Legal Practice is not a requirement for the Bachelor’s degree. A person with a Bachelor’s degree (like the applicant) is not mandated to obtain a Graduate Diploma of Legal Practice. It is a choice they make if they want to pursue a particular career path;
·as the Tribunal also noted, the Graduate Diploma of Legal Practice is provided by an entirely separate and distinctive education institution to the institution where the applicant completed her Bachelor’s degree;
·finally, the applicant attains two separate qualifications (i.e., a Bachelor of Laws and a Graduate Diploma of Legal Practice).
The applicant refers to there being evidence that the courses were “linked”. There is no such evidence in the materials before the Court. All of the evidence that was provided (and as the Tribunal correctly noted) indicated that the Graduate Diploma in Legal Practice was provided by a different education institution. For example, the applicant provided an invoice for The College of Law which clearly showed that the applicant was paying for units at the College of Law only. The applicant also provided information that she had completed her Bachelor’s degree on 10 August 2017 – relevantly, over one year prior to completing the Graduate Diploma of Legal Practice. The evidence (correctly) relied on by the Tribunal did not demonstrate that the Graduate Diploma of Legal Practice was an extension of the Bachelor’s degree.
The Tribunal was correct to find that the Graduate Diploma of Legal Practice was not an extension of the Bachelor’s degree. The Tribunal did not “overlook” the extent to which the Graduate Diploma of Legal Practice and the Bachelor’s degree were related. Nor did the Tribunal overlook any evidence that indicated that the Graduate Diploma of Legal Practice was an extension of the Bachelor’s degree.
Insofar as the applicant refers to the Tribunal refusing to grant the visa on the basis that it was not on the CRICOS list, the Court will consider this below under the heading “Outstanding Issues”.
Grounds 2 and 12 are dismissed.
Ground 3
Ground 3 provides:
The Tribunal failed to consider documentary evidence and submissions provided to the Tribunal.
The applicant has not identified what documentary evidence was not considered. Nor has she addressed which submissions were ignored.
The Court notes that the Tribunal outlined the materials that were before it as follows:
16. In addition to providing a copy of the delegate's decision, the applicant submitted the following documents to the Tribunal:
•A statutory declaration for the applicant dated 7 November 2020.
•'Certificate of Completion' dated 23 August 2018 from The College of Law.
•'Graduate Diploma of Legal Practice' certificate dated 22 August 2018 from The College of Law.
•Graduate Diploma of Legal Practice (PLT Program) Coursework Component transcript dated 23 August 2018 from The College of Law.
•Overseas Student Confirmation-of-Enrolment (COE) for Practical Legal Training Internship from 14 March 2018 to 1 August 2018.
•Murdoch University 'Confirmation of Completion of Studies' letter dated 15 August 2017 confirming completion of Bachelor of Laws requirements by the applicant on 10 August 2017.
•Murdoch University 'Bachelor of Laws' certificate dated 12 September 2017.
•Murdoch University 'Statement of Academic Record' for the applicant issued 29 October 2018.
•Supreme Court of Western Australia Admission of Lawyers letter dated 6 November 2018 regarding admission ceremony on 14 December 2018.
•Amended originating motion for admission for the applicant.
•IELTS English language test report form dated 27 July 2018.
•National Police Clearance certificate dated 28 August 2018.
•Allianz letter to Department of Home Affairs confirming Health Insurance.
17. She also provided written submissions from her Registered Migration Agent which were received on 12 November 2020.
18. As noted above, following the hearing the Tribunal wrote to applicant pursuant to s.359(2) of the Act inviting her to provide information with respect to whether the courses she completed satisfied the requirements of cl.485.221 of Schedule 2 to the Regulations, including whether the courses were 'registered courses'. The applicant responded on 3 December 2020, providing written submissions from her registered migration agent. The submissions indicated the material provided prior to the first hearing were relied upon by the applicant in establishing the courses she completed satisfied the requirements of 485.221 of Schedule 2 to the Regulations. A further hearing was held to discuss these submissions with the applicant and put information to her pursuant to s.359AA of the Act. These issues are discussed further below.
19. Following the hearing further material and submissions were submitted by the applicant on 11 January 2021 this included:
•Bachelor of Laws/Bachelor of Psychology (Murdoch University, 2017), Offer of Admission (CRICOS Code 008281K), dated 13 December 2011;
•Bachelor of Laws (Murdoch University, 2017), Course Transfer Offer to Bachelor of Laws (CRICOS Code 006942E), dated 21 December 2016;
•Student (Subclass 500) Visa Grant Notification 24 April 2018, indicating grant of a non-award sector stream grant;
•CRICOS Listing 'Course Details Page' - College of Law 'Graduate Diploma of Legal Practice' (CRICOS Course Code 069734C);
•College of Law Letter of Completion for The College of Law Practical Legal Training Course dated 23 August 2018;
•College of Law Tax Invoice and Receipt dated 15 February 2018;
•Applicant's agent's email dated 30 November 2020 to The College of Law and The College of Law response dated 3 December 2020 from Mr Glenn Brissenden, Team Leader Student Services, The College of Law;
•Letter from the applicant to The College of Law dated 11 December 2020;
•Letter from Mr Glenn Swain, Manager Student Services, The College of Law to the applicant dated 14 December 2020;
•Letter from the applicant to The College of Law dated 28 December 2020;
•Letter from the applicant's agent to The College of Law dated 9 January 2021
•Letter from the applicant's agent to The College of Law dated 11 January 2021
20. On 23 January 2021 the following additional document was submitted by the applicant together with 'final submissions' from her registered migration agent:
•Email to the applicant from Glenn Brissenden, Team Leader Student Services, The College of Law, dated 12 January 2021.
Here, the Tribunal:
(a)summarised the content of the written submissions provided on 12 November 2020, the statutory declaration and the Certificate of Completion' dated 23 August 2018 (at [23]-[25]);
(b)referred to the Overseas Student Confirmation-of-Enrolment and noted that it appeared that this was the basis of the delegate’s finding (at [22]);
(c)identified the correspondence that had been exchanged between the applicant, the applicant’s migration agent and The College of Law concerning whether the Graduate Diploma of Legal Practice was a registered course (at [30]-[32]). While the Tribunal does not refer to every piece of correspondence, this can sensibly be understood as the Tribunal only referring to correspondence that was material to the issues the Tribunal was considering: Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 431 at [52]). The crux of the correspondence sought clarification of whether the Graduate Diploma of Legal Practice was a “registered course”. The specific emails the Tribunal refers to were the most critical to that assessment;
(d)did not refer to many of the applicant’s academic documents such as the applicant’s transcript, confirmation of completion, tax invoices and offers of admission. The failure to consider these is, as noted above, explained on the basis that they were not relevant to the Tribunal’s assessment of the issues before it. They did not have any weight in relation to whether or not the Graduate Diploma of Legal Practice was a “registered course”; and
(e)extracted a large part of the applicant’s “final submissions” (at [33]-[35]) and expressly addressed the content of those submissions in its consideration (at [47] and [53]-[54]).
The Tribunal did not fail to consider any submissions or evidence provided by the applicant. Indeed, the Tribunal’s decision reflects a detailed and forensic engagement with the material provided. For example, the Tribunal noted particular statements made in the documents provided by The College of Law that the Graduate Diploma of Legal Practice was recognised under the Australian Qualification Framework (at [30]). The Tribunal noted both the major and minor details of the materials before it.
Ground 3 is, accordingly, dismissed.
Grounds 9 and 14
Grounds 9 and 14 provide:
9. The Tribunal conducted online hearing with the Tribunal member on the 16th of November 2020. The Online hearing was not very audible, and I am not certain if Tribunal Member understood everything.
…
14. AAT's decision has been based on judicial error. I should have been given an opportunity for a hearing the relativity of my course. Hearing was incorrect and thus against the law of natural justice during pandemic period. Over and above, had AAT followed the law and sought a physical hearing opportunity which is being conducted in Perth, WA; to defend myself appropriately, the Tribunal decision would be remitted.
In ground 9 and in part of ground 14, the applicant appears to be suggesting that the Tribunal hearings were not “fair” as they were conducted via Microsoft Teams (rather than in person). She argues that she was not given the chance to defend herself properly and be certain that the Tribunal understood what she was saying.
These concerns were also raised by the applicant in her oral submissions to the Court.
The Tribunal held two hearings in this matter. The first was on 16 November 2020. The second was on 10 December 2020. Both of these hearings took place online via Microsoft Teams. The applicant’s migration agent was present at both hearings. The hearing on 16 November 2020 was approximately 45 minutes in length. The hearing on 10 December 2020 was half an hour in length (CB 91-92).
In relation to the applicant’s argument that the hearing on 16 November 2020 was not very audible, there is absolutely no evidence to support this assertion. The hearing went on for 45 minutes. The applicant was assisted by her migration agent. There is no evidence that either the applicant or her migration agent indicated that there were any difficulties experienced during the hearing. Nor did they raise any issues about the hearing in their post hearing written submissions. In fact, the post-hearing written submissions dated 3 December 2020 expressly refer to questions raised at the hearing and provided responses to them (CB 79).
It is noted that the applicant was invited to attend a further hearing by Microsoft Teams on 10 December 2020. The applicant’s migration agent expressly agreed with the hearing proceeding via this method. It seems unlikely that the migration agent and the applicant would have agreed to the matter proceeding via Microsoft Teams again if any issues or concerns arose because of the use of this platform on the first occasion.
Insofar as the applicant may also be suggesting that there were issues at the hearing on 10 December 2020, again, there is no evidence to support this assertion. The hearing was 30 minutes in duration and the applicant and her migration agent both attended. There is nothing to suggest that either raised any issue with participating in the hearing. Once again, the applicant’s “final submissions” (which were provided after the second hearing) made no reference to any issues having occurred as a result of the hearing taking place via Microsoft Teams.
Finally, the Tribunal expressly notes as follows:
6. The Tribunal exercised its discretion to hold the hearings by MS Teams video conference. The hearing was held during the COVID-19 pandemic. The Tribunal is mindful that whether a hearing can or should proceed through a virtual online platform is a matter that should be determined on a case by case basis. In this matter, the Tribunal formed the view that the matter could proceed via MS Teams, having regard to the nature of this matter and the individual circumstances of the applicant. The applicant did not raise any concerns regarding the conduct of the hearing via video conference. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. The hearing proceeded without interruption and the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments at the hearing.
The applicant has not advanced any evidence that she raised concerns about the lack of face-to-face hearings or having any difficulties with the digital technology used. Without a transcript of the hearing the Court is confined to determining from the face of the decision record if there were problems of the sort now raised by the applicant.
The Tribunal’s decision confirms that the applicant did not raise any concerns during the hearing. It also confirms that the applicant was able to properly and meaningfully participate in the Tribunal hearing.
The Court rejects any suggestion that the hearing was “not very audible” and any argument that the applicant was unable to meaningfully or properly participate in the hearing.
Turning to the applicant’s argument that she should have had a “physical hearing”, the Court notes that the Tribunal is empowered by s 366 of the Act to allow an applicant to appear (for the purposes of s 360 of the Act) by any other means of communication (which includes Microsoft Teams).
“Natural justice” does not require a physical hearing. To the extent that the applicant argues that a hearing by Microsoft Teams was “not legal”, this argument also fails.
To the extent that the applicant now suggests that conducting a hearing during the pandemic was “unfair”, the Court again disagrees. The applicant was given a proper and meaningful opportunity to participate in the hearing. That that hearing took place during a pandemic and via an online platform does not evidence unfairness.
The applicant also appears to imply that the hearing could have been a “physical hearing” of the sort “being conducted in Perth, WA”. It may well have been the case that, at the time of the applicant’s hearings in November 2020 and December 2020, the Tribunal could have conducted in-person hearings. However, the Court has no evidence in this regard. All that the Court can consider is whether it was reasonable for the Tribunal to conduct the hearing via Microsoft Teams.
Here, the Court considers it was entirely reasonable for the Tribunal to do so. Relevantly:
(a)as the Tribunal noted, the matter was held during the COVID-19 pandemic. It is well-known that while the spread of the COVID-19 virus may not have been rife and in-person attendance may have been an option, many precautions were taken to limit unnecessary face-to-face contact by businesses and organisations throughout Australia. It was open for the Tribunal to take the view that, in light of the COVID-19 pandemic, eliminating the risk of a possible transmission (via appearance by video) was appropriate;
(b)the Tribunal expressly noted that it had had regard to the nature of the matter and the applicant’s individual circumstances. In this regard, the Court notes that the issues in this case were confined to the interpretation and application of legal definitions to certain facts. They did not rely on the assessment of credibility and demeanour in any way whatsoever. The applicant also did not require an interpreter and had the assistance of a migration agent;
(c)the applicant was asked if there was any reason why the matter could not be conducted by Microsoft Teams when invited to both the first hearing and the second hearing. On both occasions the applicant expressly indicated that there were no issues with the matter proceeding via Microsoft Teams (CB 41 and 88); and
(d)the Tribunal was able to achieve its objective to provide a fair, just, economic and quick review by proceeding via Microsoft Teams.
Accordingly, it was entirely reasonable for the Tribunal to exercise the discretion to conduct the matter via Microsoft Teams.
Nothing arises from the matter being heard via Microsoft Teams.
Grounds 9 and 14 are dismissed.
Outstanding Matters
Ground 12 of the applicant’s application for judicial review refers to the fact that the visa was refused on the basis that the Graduate Diploma of Legal Practice was not on the CRICOS list of registered courses.
This is correct. At [51], the Tribunal stated:
51. While the Tribunal is satisfied that the Graduate Diploma of Legal Practice comes within the definition of 'degree', on the issue of whether the Graduate Diploma of Legal Practice course undertaken by the applicant as a full-time online student at The College of Law in Perth was a 'registered course' for the purposes of the Australian study requirement (r.1.15F(1 )(a)), it is clear on the evidence eventually provided by The College of Law that it was not. This confirmed the information put to the applicant at the hearing, including the details of the registered course on the CRICOS listing and the information for international students on The College of Law website.
The applicant, in ground 12, appears to state that she provided evidence that the course was on the CRICOS list. The evidence the applicant provided was that The College of Law Graduate Diploma in Legal Practice offered on a full-time and face-to-face basis in a different states was a “registered course”. It was only that particular course offering which was on the CRICOS list.
As the Tribunal noted, the applicant had completed the course online and full-time from the Perth campus of the College of Law. She had not completed the course that was on the CRICOS list. Put another way, the evidence that the applicant had provided about the course on the CRICOS list was not the course that she had completed.
Accordingly, to the extent ground 12 argues that the Tribunal failed to consider evidence about the CRICOS list, this is dismissed.
In ground 14, the applicant also states that she should have been given an opportunity to be heard on the “relativity” of the Graduate Diploma of Legal Practice.
The applicant was given a significant number of opportunities to be heard. She attended two hearings. She provided pre-hearing submissions to the Tribunal. She provided two sets of post-hearing submissions to the Tribunal. She provided numerous pages of supporting documents. If the applicant wanted to be heard on “relativity” then she had her opportunity.
Ground 14, to the extent it was not referred to above, is dismissed.
The Court notes that when summarising the Tribunal’s decision above, it identified that the Tribunal had not properly extracted reg 2.26AC(6) of the Regulations. For example, subparagraph (b) of the definition of “diploma” as stated in reg 2.26AC(6) of the Regulations is not included.
The omission, or incorrect extraction, of reg 2.26AC(6) of the Regulations does not amount to jurisdictional error. This was likely a typographical error which occurred when copying the legislation into the decision. Notably, at [43]-[44], the Tribunal discusses the meaning of “diploma” and refers to the Australia Qualifications Framework. This is clearly derived subparagraph (b) of the definition of “diploma” as stated in reg 2.26AC(6) of the Regulations. Accordingly, the fact that reg 2.26AC(6) of the Regulations as it is extracted in the Tribunal’s decision is not “complete” did not result in the Tribunal not properly applying reg 2.26AC(6) of the Regulations.
No jurisdictional error arises in this regard.
In oral submissions before this Court, the applicant further argued that the Tribunal had “made up its mind before it had heard from her”. The Court takes this to be an allegation of bias on the part of the Tribunal.
It is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
a) the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
b) the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
Nothing on the face of the decision record suggests that the Tribunal displayed actual or apprehended bias here. The Tribunal conducted two hearings. Neither can be described as unusually short or lacking in content and there is simply no evidence that the Tribunal was not open to persuasion. The Tribunal invited the applicant to attend two hearings and the applicant was given multiple extensions of time and opportunities to provide submissions to the Tribunal. The applicant provided evidence and the Tribunal regarded that evidence comprehensively.
Finally, to the extent that the applicant argues that she was not given enough time to prepare or “felt rushed” the Court rejects any suggestion that the Tribunal acted unfairly in this regard or failed to accommodate the applicant’s needs. As noted above, two hearings were conducted and the applicant was given multiple opportunities to make submissions and/or raise any concerns she had with the timeframe and/or approach adopted by the Tribunal.
CONCLUSION
The application for judicial review filed on 2 March 2021 fails to identify any jurisdictional error. The Court has otherwise been unable to identify any jurisdictional error in the decision of the Tribunal dated 8 February 2021.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 10 June 2021
Key Legal Topics
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Immigration
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Statutory Interpretation
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Procedural Fairness
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