SINGH v Minister for Immigration
[2014] FCCA 1666
•30 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1666 |
| Catchwords: MIGRATION – Migration Review Tribunal – Skilled (Provisional) (Class VC) (subclass 485) visa – whether applicant obtained a Diploma in Management as a result of a Certificate IV in Business – whether Tribunal misconstrued the legislation – whether the Tribunal ignored relevant material – whether the Tribunal asked a wrong question – whether the Tribunal failed to deal with an integer of the applicant’s claim – whether the Tribunal’s decision was irrational – whether the Tribunal should have made enquiries. |
| Legislation: Migration Regulations 1994, regs.1.15F, 1.15F(1), 2.26A(6), 2.26AC(6), cl.485.213 |
| Cases cited: Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; (2009) 83 ALJR 1123; (2009) 259 ALR 429; [2009] HCA 39 Riaz v Minister for Immigration and Border Protection (2013) 283 FLR 26; [2013] FCCA 2244 |
| Applicant: | GURKIRAT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 1992 of 2013 |
| Judgment of: | Judge Riley |
| Hearing date: | 14 July 2014 |
| Date of last submission: | 14 July 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 30 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | James Forsaith |
| Solicitors for the Applicant: | FCG Legal Pty Ltd |
| Counsel for the First Respondent: | Michael Smith |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The application filed on 20 November 2013, amended on 26 March 2014 and further amended on 14 July 2014 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1992 of 2013
| GURKIRAT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Migration Review Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Skilled (Provisional) (Class VC) (subclass 485) visa.
The applicant arrived in Australia on 30 June 2009 on a student visa. While here, he undertook the following courses with Education Access Australia:
a)a Certificate III in Automotive Mechanical Technology (52 weeks);
b)a Certificate IV in Business (26 weeks); and
c)a Diploma of Management (26 weeks).
On 7 September 2011, the applicant applied for the subclass 485 visa. The applicant nominated his skilled occupation as motor mechanic (general). Relevantly, the applicant had to satisfy the Australian study requirement in cl.485.213 of Schedule 2 to the Migration Regulations 1994. That provision required the applicant to have completed at least 92 weeks of applicable study in Australia in the six months before the application was lodged.
The delegate considered that the Certificate IV in Business undertaken by the applicant could not be counted because it did not meet the definitions of “degree”, “diploma” or “trade qualification” in reg.2.26A(6) of the Regulations. Consequently, the delegate considered that the applicant had only undertaken 78 weeks, rather than 92 weeks, of applicable Australian study and thus did not meet cl.485.213.
Before the Tribunal, the applicant argued that the Certificate IV in Business could be regarded as part of the Diploma of Management. As a result, the applicant argued, the time spent doing the Certificate IV in Business could be included, giving the applicant a total of 104 weeks of applicable Australian study. The applicant said, in his written submission to the Tribunal received on 23 October 2013 (CB96), that the level of qualification he had received was a “complete package” including the Certificate III, the Certificate IV and the Diploma.
In making that argument, the applicant relied on a previous decision of the Tribunal, in case number 1204969. In that case, the Tribunal said:
26.The delegate found that the Certificates III and IV could not be used towards the Australian study requirement because these qualifications were not degrees, diplomas or trade qualifications. However, having regard to the course structure, the Tribunal has formed the view that it is not necessary to break up the overall qualification into individual qualifications. That is, the Diploma completed by the applicant comprised a number of courses. The Tribunal is satisfied that these courses were nestled, or combined, to comprise one qualification in that the first and second courses were pre-requisites for completion of the Diploma. Having completed several courses (Certificates III, IV and a Diploma), the applicant obtained the qualification of Diploma.
27.The Tribunal notes that r. 1.15F refers to the applicant completing a qualification as a result of a course ‘or courses’. That is, it is permissible to combine several courses to comprise one qualification, as long as each of the courses meets the requirements of r. 1.15F(1)(a) – (e). …
In the present case, the Tribunal rejected that argument. The Tribunal considered that the Certificate IV in Business was not part of the Diploma of Management. Consequently, the Tribunal considered that the time the applicant spent undertaking the Certificate IV in Business could not be included, and the applicant did not meet the requirement of 92 weeks of applicable Australian study.
Legislation
Clause 485.213(a) of Schedule 2 of the Regulations required the applicant to meet the “Australian study requirement”. That term was defined in reg.1.15F of the Regulations as follows:
(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.
Note: Academic year is defined in regulation 1.03.
(2) In this regulation:
completed, in relation to a degree, diploma or trade qualification, " means having met the academic requirements for its award.
Note: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, for subregulation (2), before the award is formally conferred.
degree has the meaning given in subregulation 2.26AC(6).
diploma has the meaning given in subregulation 2.26AC(6).
trade qualification has the meaning given in subregulation 2.26AC(6).
Subregulation 2.26AC(6) of the Regulations defined “diploma” as follows:
diploma means:
(a)an associate diploma, or a diploma, within the meaning of the Register of Australian Tertiary Education (as current when this definition commences), 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.
It was not suggested that the applicant’s Certificate IV in Business was a trade qualification or degree.
Ground 1
The first ground of review in the application filed on 20 November 2013 and amended on 26 March 2014 is:
The Tribunal, in considering whether the applicant satisfied the Australian study requirement referred to in clause 485.213 of Schedule 2 to the Regulations (‘the Australian study requirement’), erred in law by identifying a wrong issue, asking a wrong question, relying on irrelevant material and/or ignoring relevant material, in that it misconstrued regulation 1.15F of the Migration Regulations 1994 (‘the Regulations’).
Particulars
(a)Regulation 1.15F(1) asks whether ‘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 … that were completed as a result of at least 2 academic years study’.
(b)The courses relied upon by the applicant included a Certificate IV in Business (‘the Certificate IV) and a Diploma of Management (‘the Diploma’).
(c)The Tribunal asked not whether the applicant obtained a diploma ‘as a result of’ these courses, but whether these were the same course, or ‘packaged’ together.
In relation to the question of whether the applicant’s Certificate IV was part of his Diploma, the Tribunal said:
35.The applicant has contended that the Certificate IV in Business is part of the Diploma of Management and therefore satisfies the definition of ‘diploma’ in r.2.26A(6), because the Certificate IV in Business is an entry requirement for the Diploma of Management and should therefore be regarded as a packaged course with the Diploma of Management. For the following reasons, the Tribunal rejects this argument.
36.First, the fact that the Certificate IV in Business is an entry requirement for the Diploma of Management does not, without more, mean that it is a packaged course. The Tribunal takes into account that the two courses have different CRICOS codes with separate registered durations. Secondly, the Tribunal notes that the successful completion of Year 12 is an entry requirement or pre-requisite for many university courses, but it would not be true to say that Year 12 should be regarded as part of the university course. Thirdly, there is no evidence from Education Access Australia that the Certificate IV in Business and the Diploma of Management were a single, packaged course at the time of the applicant’s study.
37.Consequently the Tribunal finds that the Certificate IV in Business is not part of a ‘diploma’ as defined in r.2.26A(6). The Tribunal therefore finds that the duration of this course cannot be included for the purposes of r.1.15F(c).
In support of this ground, the applicant argued that:
… the Australian study requirement, on its terms, clearly contemplates that a qualification, in this case, a diploma, can be obtained as a result of the completion of multiple courses … .
I do not accept that argument. Regulation 1.15F(1) of the Regulations allows a person to meet the Australian study requirement by the completion of multiple degrees, diplomas or trade qualifications. However, reg.1.15F does not say that a particular degree, diploma or trade qualification may be awarded following the completion of multiple courses. Such an outcome would be contrary to the basic structure of our education system, in which a student completes a particular course and is awarded the corresponding qualification. Many courses have prerequisites, but that does not mean that the prerequisites are part of the course that results in a particular qualification. Clearly, the completion of a Bachelor’s degree does not result in the conferral of a Ph.D., although it is necessary to complete a Bachelor’s degree before undertaking a Ph.D.
The applicant relied on the decision of this court in Riaz v Minister for Immigration and Border Protection (2013) 283 FLR 26; [2013] FCCA 2244 at [35], where it was said that:
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”. (emphasis added)
The emphasised passage in that quotation suggests that it is possible to meet the requirements for a diploma by doing multiple courses. However, that was not the issue before the court in Riaz. Nor was there any discussion in Riaz about how one could qualify for a diploma by doing multiple courses. It appears that the court in Riaz did not actually turn its mind to the question of whether one could qualify for a diploma by doing multiple courses. If the court in Riaz did consider that a person could qualify for a diploma as a result of doing multiple courses, I consider that the court in Riaz was plainly wrong and I decline to follow it.
I do not accept that the Tribunal asked itself the wrong question in this case. The Tribunal set out in its own words the requirements of reg.1.15F of the Regulations at paragraph 22 of its reasons for decision. The Tribunal’s own words correctly included the words “as a result of”. I take it from that paraphrase of reg.1.15F that the Tribunal knew that the question was whether the applicant had obtained his diploma, in part, “as a result of” his Certificate IV.
It is true that the Tribunal did not again use the words “as a result of” in its reasons for decision. However, that is probably because the arguments put forward by the applicant used the words “complete package”[1], and described the Certificate IV and diploma courses as “nestled”[2] together. The Tribunal, correctly, attempted to deal with the arguments that were advanced. It seems to me that there is no reason to doubt that the Tribunal asked itself the correct question.
[1] CB96, last paragraph, applicant’s submission to the Tribunal.
[2] Transcript of Tribunal hearing page 9 line 4 annexed to affidavit of Jodie Coomber sworn or affirmed on 14.3.14.
Ground 2
The second ground of review in the application filed on 20 November 2013 and amended on 26 March 2014 is:
The Tribunal, in considering whether the applicant satisfied the Australian study requirement, erred in law by ignoring relevant material, in that it failed to have regard to relevant material within the Australian Qualifications Framework (‘AQF’).
Particulars
(a)For the purposes of Regulation 1.15F, ‘diploma’ is defined by Subregulation 2.26A(6), which refers to the AQF.
(b)At the relevant time, the AQF provided that: ‘The volume of learning of a Diploma is typically 1-2 years’.
(c)This is relevant to the question of whether the applicant obtained his Diploma of Management as a result of only the Diploma court (the duration of which was 26 weeks), or alternatively, both the Diploma course and the Certificate IV course (the duration of which was also 26 weeks).
The applicant’s argument in relation to this ground appears to be that, because the Australian Qualifications Framework says that the volume of learning for a diploma is “typically 1-2 years”, and the applicant’s Diploma of Management took only 26 weeks, his Certificate IV in Business, which also took 26 weeks, must be added to reach the one year minimum so that his diploma is really a diploma.
That is clearly inverted logic. The AQF did not say that all diplomas must take at least one year. It said that they “typically” take one to two years. The applicant’s Diploma in Management is obviously outside the normal range. However, at paragraph 31 of its reasons for decision, the Tribunal accepted that the applicant’s Diploma of Management fitted within the definition of “diploma” in reg.2.26A(6) of the Regulations. I find no error in the Tribunal’s consideration of this matter. The Tribunal referred to the Australian Qualifications Framework at various points and in appropriate ways.
Ground 3
The third ground of review in the application filed on 20 November 2013 and amended on 26 March 2014 is:
The Tribunal, in considering whether the applicant satisfied the Australian study requirement, erred in law by identifying a wrong issue, asking a wrong question, relying on irrelevant material and/or ignoring relevant material, in that it approached its task on the basis that it would not accept relevant material absent independent corroboration.
Particulars
(a)The applicant gave sworn testimony:
(i) that he was told by his education provider that the Certificate IV and the Diploma were ‘nestled together’ and that the Certificate IV was ‘part of’ the Diploma; and
(ii) that the Certificate IV and the Diploma appeared together on his confirmation of enrolment (T:14-16, paragraph 17).
(b)The Tribunal acknowledged that these claims were relevant considerations.
(c)The Tribunal approached its task on the basis that it would not accept the applicant’s sworn testimony absent independent corroboration.
This ground is based on a statement made by the Tribunal during the hearing before it. The transcript of that hearing is annexed to the affidavit of Jodie Coomber sworn or affirmed on 14 March 2014. At pages 8 to 9, the applicant said:
… the uni told us, like, courses club together …
… they told us the courses all, like, nestled together to do – like, if you want to do the Diploma, you need to do the Certificate IV first. You can’t do Diploma of the Business Management straight away. …
You need to do Cert IV. … Because, that’s part of the whole course.
At page 11, the Tribunal summarised the applicant’s claim that his diploma comprised a number of courses that nestled or combined to form one qualification. The applicant accepted the summary. At pages 12 to 13, the Tribunal then said:
There is no evidence before the Tribunal to that effect in this case. But, as you have told me that the education provider told you that … before you could do the diploma, you needed to do the Certificate IV because it was part of the same course … if you wanted the opportunity to provide a letter from Education Access that the Certificate IV in Business and the Diploma of Management were a single course or a packaged program of study, … I’d be happy to allow you seven days to provide that further evidence to the Tribunal.
It is not appropriate to fix on what the Tribunal said during the course of the hearing to make out this ground. What the Tribunal said at paragraph 36 of its reasons for decision on this point was that:
Thirdly, there is no evidence from Education Access Australia that the Certificate IV in Business and the Diploma of Management were a single, packaged course at the time of the applicant’s study.
That was correct. There was no evidence from Education Access Australia on that point before the Tribunal. (Incidentally, that seems to me to be what the Tribunal meant when it said during the hearing that there was no evidence.) That was one of three points that the Tribunal relied upon to reject the applicant’s argument. It was not expressed as a requirement for corroboration. The Tribunal was just stating, as a fact, that the education provider, who could be taken to know what it required to confer any particular qualification, had not provided evidence supporting the applicant’s claims.
In a court, expert evidence would have needed to be given about the requirements for a diploma. Obviously, the Tribunal is not bound by the rules of evidence. But nor is it bound to accept anything an applicant says. The Tribunal does not need contradictory evidence to reject an applicant’s claim. In a situation where an applicant is making a claim that is inherently implausible, such as that a Certificate IV is part of a diploma, it is entirely proper for the Tribunal to include the absence of support from the educational institution as a reason for rejecting the claim. I do not consider that the Tribunal erred by requiring corroboration of the applicant’s claim.
Ground 4
The fourth ground of review in the application filed on 20 November 2013 and amended on 26 March 2014 is:
The Tribunal, in considering whether the applicant satisfied the Australian study requirement, erred in law by ignoring relevant material, in that it did not deal with an integer of the applicant’s claim.
Particulars
(a)The applicant claimed that the Certificate IV and the Diploma were a ‘packaged’ programme of study because:
(i) they were sold as such, and administered together as such, by his education provider; and
(ii) the Certificate IV was a pre-requisite for the Diploma.
(b)The Tribunal dealt only with the second of these claims (see paragraph 35 of the Decision Record).
The suggestion that the Certificate IV and the diploma were sold and administered as a packaged program of study was evidence, not an integer of the claim. The applicant’s claim was that the Certificate IV in Business was part of the Diploma of Management. The Tribunal considered that claim and rejected it. It did not need to expressly address every item of evidence raised by the applicant.
Ground 5
The fifth ground of review in the application filed on 20 November 2013 and amended on 26 March 2014 and further amended by leave of the court on 14 July 2014 is:
The Tribunal, in considering whether the applicant satisfied the Australian study requirement, erred in law in that it misconstrued the Australian study requirement, had regard to irrelevant considerations and/or engaged in reasoning (in paragraph 36 of the Decision Record) that was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.
Particulars
(a)The Tribunal reasoned that ‘the fact that the Certificate IV in Business is an entry requirement for the Diploma of Management does not, without more, mean that it is a packaged course’ and gave the example that ‘the successful completion of Year 12 is an entry requirement or pre-requisite for many university courses, but it would not be true to say that Year 12 should be regarded as part of the university course'. Even if these statements are correct, they cannot rationally help the Tribunal where, as in the present case, there was ‘more’ material before the Tribunal. (emphasis added)
(b)The Tribunal reasoned that it ‘takes into account that the two courses have different CRICOS codes with separate registered durations.’ This axiomatic statement cannot rationally help the Tribunal to answer the question whether a qualification has been obtained ‘as a result of’ both courses, nor the question whether the two courses are ‘packaged’ together.
(c)The Tribunal reasoned that ‘there is no evidence from Education Access Australia that the Certificate IV in Business and the Diploma of Management were a single, packaged course at the time of the applicant’s study.’ This view as to the absence of one type of evidence cannot, without more, rationally support the Tribunal’s conclusion.
In relation to particular (a), the applicant said that there was “more”, consisting of:
a)the contrast between the Diploma of Management taking 26 weeks and the AQF saying that diplomas are “typically 1-2 years” in duration;
b)the fact that the applicant completed the two courses sequentially and with no time gap;
c)the applicant’s oral evidence about:
i)what he had been told by his education provider;
ii)what was on his confirmation of enrolment; and
iii)the different outcomes obtained by others who had undertaken identical courses.
These statements are essentially inviting the court to undertake merits review. In any event, the quotation from the AQF is irrelevant, because it only states the typical duration of diplomas, not the minimum duration. It is not unusual for students to do courses sequentially and without a time gap. Those circumstances do not logically mean that one course is part of another. The outcome for other people cannot bind the Tribunal to decide the present case in the same way. Although consistency in decision making is desirable, it is not as desirable as deciding cases in accordance with the law. The Tribunal was under no obligation to take into account the way another Tribunal had decided another matter. There is nothing illogical in particular (a).
In relation to particular (b), there is nothing illogical in the Tribunal noting that the certificate and diploma courses had different CRICOS codes and different registered durations. That was a way of noting that the two courses were entirely distinct. While the Tribunal was required to consider whether the applicant’s diploma was the “result of” his completion of the two courses, it was entirely reasonable and logical for the Tribunal to approach that task by responding to the arguments that the applicant had actually made. Those arguments included that the certificate was part of the diploma.
In relation to particular (c), there is nothing irrational about the Tribunal noting the absence of supporting evidence from the applicant’s education provider. If such evidence had been forthcoming, it would presumably have resolved the case entirely in the applicant’s favour. The absence of such evidence was noteworthy. The fact that the applicant offered an explanation for the absence of evidence from the education provider does not mean that the Tribunal was obliged to accept that the evidence, if it had been provided, would have supported the applicant’s case. That is especially so where the applicant’s claim was inherently implausible.
Ground 6
The sixth ground of review in the application filed on 20 November 2013 and amended on 26 March 2014 is:
The Tribunal, in considering whether the applicant satisfied the Australian study requirement, erred in law by failing to conduct a ‘review’ within the meaning of s 348 of the Act, unreasonably refusing to exercise a discretion and/or by engaging in reasoning which was irrational, illogical and not based on findings or inferences of fact supported by logical grounds, in that it failed to make simple and obvious inquiries of the First Respondent or the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) (‘the Department’) administered by the First Respondent.
Particulars
(a)Section 359(1) of the Act empowers the Tribunal to ‘get any information that it considers relevant’. This discretion must be exercised reasonably.
(b)The applicant provided the Tribunal with material which strongly suggested that the Department was in possession of further material critical to the issue of whether the applicant satisfied the Australian study requirement, as that issue was understood by the Tribunal. In particular:
(i) the applicant gave evidence that others in relevantly identical situations to him had applied at the same time for the same subclass of visa, which had been granted; and
(ii) in the ensuing discussion, the applicant and the Tribunal agreed that these other applications may have been based on additional materials.
(c)The Applicant asked whether the Tribunal could take steps to obtain further information, and the Tribunal acknowledged that it had information-gathering powers.
(d)The Tribunal did not take steps to obtain further information from the Department.
The general rule is that the Tribunal is under no duty to enquire. However, in Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; (2009) 83 ALJR 1123; (2009) 259 ALR 429; [2009] HCA 39, the High Court indicated, without deciding, that there may be circumstances in which it would be a jurisdictional error for the Tribunal not to make enquiries. The High Court said, at [25] of SZIAI:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. (footnote omitted)
Assuming for present purposes that there could be a jurisdictional error consisting of failing to make an obvious enquiry about a critical fact that could easily be ascertained, it is difficult to see how such a jurisdictional error could have arisen in this case. The applicant has not explained how evidence in another case could have made a difference to the present decision, or could have constituted a critical fact in the present matter. Nor does ascertaining the evidence adduced in another matter constitute an obvious enquiry. The Tribunal presumably, and probably correctly, thought that the other cases were wrongly decided. In such circumstances, making an enquiry about evidence in the other cases would not be an obvious thing to do. It is clear from the Tribunal case mentioned above, case number 1204969, that the different outcome was based not on different evidence, but a different view of the interrelationship between different courses. Again, there was nothing to be gained by looking at the evidence in that case. All in all, I am not satisfied that the Tribunal erred by failing to enquire into the evidence that was adduced in other cases.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 30 July 2014
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