Singh v Minister for Immigration

[2015] FCCA 2499

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2499

Catchwords:
MIGRATION – Judicial review Migration Review Tribunal – application for a Skilled (Provisional) (Class VC) (Subclass 485) (skilled – graduate) visa – consideration of mandatory requirements – consideration of Australian study requirements – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), reg.1.03, 1.15F, 1.15F(1), 1.15F(2), 2.26A(6), 2.26A(6)(b), 2.26A(6)(c), Sch 2: cl.485.213

Applicant: HITESH PAL SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1452 of 2014

Judgment of: Judge Hartnett

Hearing date: 12 August 2015

Delivered at: Melbourne

Delivered on: 14 September 2015

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Arduca

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. The Application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1452 of 2014

HITESH PAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an Application for judicial review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) of 7 July 2014. The Tribunal affirmed a decision of a Delegate of the First Respondent (‘the Delegate’) dated 19 September 2012, not to grant the Applicant a Skilled (Provisional) (Class VC) (Subclass 485) (skilled – graduate) visa (‘the visa’). 

2. This Application was filed on 18 July 2014.  The grounds of application are as follows:-

   “1. Similar case has been granted by approving the 92 weeks of study

   2.  I have also CertIV in Automotive and enhanced my skills in comparison to others.

   3. My College has also given a written letter stating that I have completed the 92 weeks of study which is sufficient proof to evidence my grant of the visa.”[1]

   [1] Application filed by the Applicant 18 July 2014.

3. The Applicant relied upon written submissions filed by him on 23 January 2015 and 7 July 2015.  The First Respondent relied on Contentions of Fact and Law filed by him on 29 July 2015. There is before the Court evidence as contained in the Court Book filed in these proceedings, that being filed on 23 January 2015 by the First Respondent. The First Respondent seeks dismissal of the application.

Legislation

1. Applicants for a class or classes of visa must satisfy the requirements relating to that class as set out in the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) (‘the Regulations’). When an applicant fails to meet any one of the criteria for the grant of the visa the visa cannot be granted and the application must be refused. Schedule 2 of the Regulations sets out the criteria to be met for the grant of a Skilled (Provisional) (Class VC) (Subclass 485) (skilled – graduate) visa. Clause 485.213 of the Regulations is one of the mandatory requirements for the grant of the visa and it provides that an Applicant must:-

   “a) have satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made; and

   b) each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.”

2. Australian study requirement is defined in reg.1.15F of the Regulations and, relevantly, it states that:-

   “(1) A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of 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.”

3. Academic year is relevantly defined in reg.1.03 of the Regulations to mean:-

   “In these Regulations, unless contrary intention appears: academic years means a period that is specified by the Minister as an academic year in an instrument in writing for this definition.”

4. The relevant instrument signed by the First Respondent on 14 May 2009, for the purpose of reg.1.03 of the Regulations, states:-

   “that 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 Education Services for Overseas Students Act 2000…”

5. The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification (reg.1.15F(2) of the Regulations), before the award is formally conferred. Degree has the meaning given in reg.2.26A(6). Diploma has the meaning given in reg.2.26A(6). Trade qualification has the meaning given in reg.2.26A(6).

6. Regulation.2.26A(6) relevantly provides:-

   “Degree means a formal education 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 qualifications 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

   …

   (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:-

   “… (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.”

   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 the ANZSCO.”

History

1. The Applicant is a citizen of India, who applied for the visa on 23 February 2012.  The Applicant nominated motor mechanic (general) ANZSCO 321211 as his skilled occupation.  On the same date, the Applicant submitted Certificates and Letter of Completions for “Certificate III in Business”, “Certificate IV in Business”, “Certificate III in Automotive Mechanical Technology” and “Diploma of Management”.

2. The Delegate found that:-

   a)the “Certificate III in Automotive Mechanical Technology” is a Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’) registered course consisting of a total of 52 weeks, and that the Applicant had completed this course on 16 September 2010;

   b)the “Certificate III in Business” was a CRICOS registered course consisting of a total of 16 weeks, and that the Applicant had completed this course on 4 January 2011;

   c)the “Certificate IV in Business” was a CRICOS registered course consisting of a total of 15 weeks, and that the Applicant had completed this course on 5 March 2011; and

   d)the “Diploma of Management” was a CRICOS registered course consisting of a total of 21 weeks, and that the Applicant had completed that course on 29 January 2012.

3. However, the Delegate found that the Certificate III and Certificate IV in Business did not meet the definition of “degree”, “diploma” or “trade qualifications” as contained in reg.2.26A(6) of the Regulations. Thus, the Certificate III and IV in Business courses could not be used toward meeting the Australian study requirement. Accordingly, the Delegate found that the combined period of the registered courses was only 73 weeks, rather than the 92 weeks required by reg.1.03 of the Regulations.

4. As the Applicant did not meet the two year academic year study requirement, he failed to satisfy the requirements for the grant of the visa and, on 19 September 2012, the Delegate refused the grant of the visa. 

Tribunal Hearing

1. The Applicant made an application for review of the Delegate’s decision to the Tribunal by Application filed on 5 October 2012.  The Applicant submitted his Completion Certificates, letters and academic transcripts and a letter from the CEO, Australian Industrial Systems Institute dated 19 September 2012, confirming the studies undertaken by the Applicant and stating that the Applicant had to complete the Certificates of Business III and IV as pre-requisites to completing the Business Diploma. 

2. The Applicant also submitted a new academic transcript issued by the Australian Industrial Systems Institute for the Diploma of Management, indicating that the outcome in seven units was C (competent) and in one unit CT (credit transfer).

3. The Applicant also provided a submission to the Tribunal on 13 November 2013, the contents therein being as described in paragraph 5 of the Tribunal’s Decision Record dated 7 July 2014 (‘the Decision Record’). That paragraph is as follows:-

   “On 13 November 2013 the Tribunal received a submission from the applicant in which he expresses his shock at the delegate’s decision to refuse to accept his business courses, given the total amount of study he has undertaken in Australia amounts to 104 weeks. He states also that a fellow student, who studied exactly the same courses as the applicant, had his visa approved and provided relevant documents. The applicant also stated in his submissions that a trade qualification can be one listed under the Australian Qualifications Framework, of at least Certificate III level for a skilled occupation in Major Group IV or Major Group III in ANZSCO; that he studied business courses to help him work in a range of business environments; and that he has recently upgraded his studies by completing a Certificate IV in Automotive Technology.”

4. The Applicant appeared before the Tribunal on 13 November 2013 to give evidence and present arguments.  The Tribunal read out in the hearing, the definition of the Australian study requirement in reg.1.15F of the Regulations. The Tribunal was satisfied “that the applicant completed a Certificate III in Automotive Mechanical Technology and that the period of study was 52 weeks. The certificate meets the definition of a “trade qualification” contained in r.2.26A(g) for the purposes of r.1.15F.”[2]

   [2] Migration Review Tribunal Decision Record dated 7 July 2014 at [19].

5. The Tribunal however considered the critical issue in the Applicant’s case was whether or not his business courses could be counted toward meeting the study requirement, given they were not “trade qualifications” as defined in the Regulations. The Tribunal noted to the Applicant that “business” did not fall within Major Group IV in the ASCO or Major group III in the ANZSCO, as required to satisfy the definition of “trade qualification” in sub-regs.2.26A(6)(b) and (c) of the Regulations. The Tribunal found that a pre-requisite was not itself a qualification nor were the Business Certificates part of a Diploma, or resulted in the completion of a Diploma.

6. Accordingly, the Tribunal did not accept the Business Certificates met the definition of “degree”, “diploma” or “trade qualifications”.  The Tribunal found the total duration of the Applicant’s Australian study was 73 weeks and that the Applicant did not satisfy the minimum requirement of 92 weeks study.

7. The Applicant had argued that the business courses he completed were undertaken as necessary pre-requisites to obtain the Diploma of Management and they, therefore, should be counted. The Tribunal accepted, based on the evidence provided, that they were pre-requisite courses for the Applicant’s Diploma of Management, but noted there was no judicial support for finding that a pre-requisite qualification constituted part of a relevant kind of qualification for the purposes of reg.2.26A(6) and reg.1.15F(1) of the Regulations, where that qualification was not itself a relevant kind of qualification.

8. The Tribunal noted the Department’s policy guidelines, Procedures Advice Manual (PAM3), whilst not specifically addressing this issue, nonetheless were clear that study must have resulted in a degree, diploma or trade qualification.  The Tribunal found the Applicant did not satisfy the Australian study requirement in the six months immediately before the visa application date and therefore, did not meet cl.485.213 of the Regulations.  Accordingly, and on 7 July 2014, the Tribunal affirmed the decision of the Delegate to refuse the grant of the visa.  The Tribunal notified the Applicant of its decision, enclosing a copy of the Tribunal’s Decision Record by correspondence of 9 July 2014. 

Consideration

1. The Applicant’s submissions before the Court on this Application explain his decision to undertake business studies, being that they would have enabled him to set up his own business. He provided, by way of attachment, a Certificate IV in Automotive Technology commenced on 15 October 2012 and completed on 30 May 2013. That Certificate IV in Automotive Technology does not affect the outcome of this Application, as that Certificate was completed after the date of the visa application on 30 May 2013. It therefore cannot be taken into account for the purpose of cl.485.213 of the Regulations.

2. The Tribunal correctly identified the legal framework for the grant of the visa and made findings consequent upon a correct application of that legal framework to the evidence before it. The Tribunal’s findings that the Certificates III and IV in business did not fall within Major Group IV of ASCO and Major Group III of ANZSCO and therefore, did not engage reg.2.26A(6)(b) and (c) or reg.1.15F of the Regulations was correct.

3. The Tribunal also correctly concluded that the Business Certificates obtained by the Applicant could not be counted as part of the Diploma of Management, as the evidence showed that they were pre-requisites to such diploma, rather than a part of the diploma itself.  The Tribunal was unable to conclude otherwise than that the Applicant did not satisfy the criteria for the grant of the visa.

4. The Applicant referred to the treatment of applicants other than himself, saying that another applicant’s visa had been granted on the basis of similar qualifications, but that his had been refused.  That is a matter that cannot be accepted by the Court as a finding of fact, and is irrelevant to the Court’s assessment of the application before it. 

5. The Application must be dismissed and costs shall follow the event.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  14 September 2015