Vueti, Vaulina Salusalu v Minister for Immigration & Ethnic Affairs

[1997] FCA 722

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)   NG89 of 1997
)
GENERAL DIVISION	)

BETWEEN:             

VAULINA SALUSALU VUETI
ERONI ETULA VUETI
KINISALOTE NAI VUETI
FILIMAINA TUBA VUETI
NANISE TAIKI ULUINADI VUETI
KARL DAVU VUETI

Applicants

  AND:  

MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS

Respondent

JUDGE(S):	HILL J
PLACE:	SYDNEY
DATED:	31 JULY 1997

REASONS FOR JUDGMENT

The applicant, Mrs Vaulina Salusalu Vueti, seeks judicial review of a decision of the Immigration Review Tribunal (“the Tribunal”) made on 10 January 1997 affirming a decision not to grant to her, her husband and their three children, inter alia, a Class 818 (Highly Qualified On-Shore(Permanent) Entry Permit).  The applicant's husband and three children join in the application, as does a fourth child, who has been born subsequent to the Tribunal's decision.  On the view I have reached, is unnecessary to consider whether the child born after the Tribunal gave its decision would have standing to challenge it.

Mrs Vueti can to Australia on a student visa, arriving on 2 February 1987.  She subsequently, as did her husband, sought an entry permit to Australia.  Her husband's application is not the subject of the present application to the Court.  The Tribunal considered Mrs Vueti's application both by reference to Class 816 and to Class 818 of the Migration (1993) Regulations but found that she qualified for neither class.  As I already indicated, the sole matter before me concerns the application for the Class 818 visa.

It is common ground that Mrs Vueti satisfies all but one of the requirements for the Class 818 entry permit.  At issue is whether she satisfied the requirement in reg 818.721(2).  To understand the argument that has been put, it is necessary to set out the terms of the criteria contained in reg 818.721, required to be satisfied by her at the time of her application.  Regulation 818.721 provides as follows:

“(1)     The applicant is:

(a)a person who:

(i)had not turned 45 before 1 November 1993; and

(ii)meets the requirements of subclause (2), (3), (4) or (5); or

(b)a person who:

(i)is a member of the family unit of an applicant who is a person mentioned in paragraph (a); and

(ii)is included in that person’s application.

(2)An applicant meets the requirements of this subclause if, on 1 November 1993, the applicant:

(a)had been enrolled for the 1993 academic year at an Australian post-secondary educational institution in a postgraduate course, and

(b)had satisfied the academic progress requirements of that educational institution.

(3)An applicant meets the requirements of this subclause if, on 1 November 1993. the applicant:

(a)held an Australian bachelor’s degree or an overseas qualification that is assessed by NOOSR as being comparable to an Australian bachelor’s degree; and

(b)had been enrolled for the 1993 academic year at an Australian post-secondary educational institution in an accredited course for a bachelor’s degree; and

(c)had satisfied the academic progress requirements of that educational institution.

(4)An applicant meets the requirements of this subclause if, before 1 November 1993, the applicant had completed the requirements of a bachelor’s degree or higher degree in Australia, and:

(a)during the 1993 academic year, had completed; or

(b)on 1 November 1993, was undertaking:

further study, practical training or work experience required to obtain professional registration, licensing or admission.

(5)An applicant meets the requirements of this subclause if, on 1 November 1993, the applicant:

(a)was carrying out postgraduate or post-doctoral research as the holder of a full-time position in an Australian academic or research institution; and

(b)that position was awarded to the applicant on the basis of a postgraduate or post-doctoral qualification awarded to the applicant in Australia.”

Regulation 818.131 defined “Postgraduate course” to mean:

“an accredited course that leads to the award of a graduate certificate, a graduate diploma, a master’s degree, a doctoral degree or a post-graduate bachelor’s degree.”

Mrs Vueti, completed a Bachelor of Nursing Degree at the University of Western Sydney at the end of November 1993, graduating in the following year. She was thereafter registered as a registered nurse under the provisions of section 18 of the Nurses Act 1991 (NSW). That section has four criteria for registration in addition to the general criteria that the person have attained the prescribed age if any be prescribed; that the person is in good character and that he or she has paid an appropriate fee that has been prescribed. Under par (a) of section 18, the first of the four requirements is the one satisfied by Mrs Vueti. It is the completion of a course of training as a nurse at a recognised institution in New South Wales resulting in her becoming the holder of a recognised diploma, certificate or other award to the effect that she has successfully completed the course.

The second of the four requirements is a grandfather clause relating to persons who satisfy the board that they were entitled to be registered under previous law.  The third gateway for registration concerns a person who has undergone a course of training outside New South Wales in which a law providing for the registration of nurses is in force and holds an appropriate certificate of having completed the training; is registered in the other place and the Nurses Registration Board (“the Board”) is of the view that the qualifications essentially are the same as that in New South Wales.

The final gateway, again involves a person who holds a diploma outside New South Wales and who has undergone a course of training.  It requires additionally that that person pass such further exams as the Board may require.
The Tribunal dealt with the application for the Class 818 visa in rather brief reasons.  It noted that Mrs Vueti was still a student as at 1 November 1993 and had not, at that time, completed her course.  For this reason, the Tribunal said, she did not meet any of the educational requirements set out in the alternative in paragraphs 818.721(2) through to 818.721(5) all of which requirements the Tribunal considered required as a minimum the attainment of the equivalent of an Australia's Bachelor's Degree.  It is from this decision that she appealed.

In essence, there are two grounds of appeal.  The first is that the Tribunal erred in law in interpreting the definition of “Postgraduate course”.  The second, which is related to the first ground, is said to be that the Tribunal failed to make adequate inquiries; a third ground of no evidence was foreshadowed in opening but ultimately no submission was directed at that ground. 

In evidence were the result of inquiries which it is said the Tribunal should have made and which it is said would have lead it a different conclusion.  These were inquiries from the Board and University of Western Sydney which established that the course of study which the applicant was undertaking contained units directed at the transition between student and nursing practice and included units of practicable nursing training.

The Board had played a part apparently in the structure of the courses of training issued by various universities, including the University of Western Sydney, to ensure that the degree of Bachelor of Nursing conducted by those universities contained appropriate practical experience and practical courses such that the Board could dispense with any requirement that a person undertake additional practical training in nursing.  I should not, in taking this evidence in account, be taken as suggesting that the Tribunal should have made these inquiries.  It did in fact make some inquiries of its own.  The respondent was content that I take this material into account in determining the Application.

The sole issue before me is, having regard to this background, the true meaning of the definition “Postgraduate course”.  It is said that the course which Mrs Vueti was studying on 1 November 1993 led to both the conferral of a Bachelors degree and to the award of a Certificate of Registration pursuant to the Nurses Act subsequently issued by the Board on successful completion of that course.
The submission starts with the proposition that the Board required practical training before it would grant registration. The university course which Mrs Vueti undertook provided such training and therefore the Certificate of Registration is properly described as a graduate certificate within clause 818.131. It was a certificate that was granted to her by reason of her graduating from the University with a Bachelor of Nursing degree and thereby satisfying s18(a) of the Nurses Act.  The certificate in the nature of a practicing certificate.

It is impossible to construe any act of Parliament or regulations made pursuant thereto without regard to the context in which they appear.  Here the definition of “Postgraduate course” in reg 818.131 is a definition for the purposes of reg 818.721.  Four categories of person are included in reg 818.721.

The first category is a person enrolled in a postgraduate course and is the category with which we are presently concerned, I shall return to it (sub-reg (2)).

The next category is a person who held an Australian Bachelors degree, or a comparable overseas qualification, and is enrolled at an Australian post-secondary education institution in an accredited course for another Bachelors degree (sub-reg (3)).  This second set of requirements looks therefore to a person who already has one degree and is enrolled in a second degree.

The third category of persons are those who have completed a Bachelors degree, or a higher degree, and are undertaking further study or practical training to obtain professional registration. The further study or practical training is, as it were, over and above the training which the person has received in the basic undergraduate degree.  But it is a prerequisite to inclusion in this third category that the person has completed an undergraduate degree (sub-reg (4)).

The final category of person is a person who is carrying out post-graduate or postdoctoral research holding a position awarded to that person on the basis of a postgraduate or post-doctoral qualification (sub-reg (5)).  Again that category is concerned with persons who are a graduates and are engaged in an additional course;  this time not of study but research.  It is in that context that one returns to look at paragraph 2(a) with its reference “postgraduate course”.

If one puts to one side the phrase, “graduate certificate”, relied upon here, each of the other awards, referred to in the definition of postgraduate course, are awards granted to persons who hold already undergraduate degrees, a graduate diploma is a diploma issued to a person who is a graduate after concluding an additional course of study, a Masters degree is the traditional degree but is awarded to a person who has a Bachelors degree and undertakes a further postgraduate course in the same field as the Bachelors degree was awarded.

A Doctoral degree clearly is a degree which is awarded to a person who has at least a Bachelors degree and undertakes a further course of study.  Likewise a postgraduate Bachelors degree is a Bachelors degree that is awarded to a person as a second degree, that person having completed an initial Bachelors degree.  For example, the University of Sydney requires an  initial degree to be completed as a prerequisite degree to a Bachelor of Medicine degree.  A Bachelor of Medicine degree would thus qualify as a postgraduate Bachelors degree.

It would therefore seem likely that the expression “graduate certificate” was intended to refer to a certificate that was granted to a person who was already a graduate as a result of that person completing a postgraduate course.

The definition of “postgraduate course” makes it clear that what is important is not the name of the award that is received at the end of the course’s study but the true nature of the course of study itself.  It is for this reason that the definition makes reference to the various kinds of award which are made following completion of a course of study which requires, as a prerequisite, the completion of a first degree or equivalent.  What is important is not the title of the award but the fact that it is given for the completion of a course of study undertaken after an undergraduate degree has been completed.

Counsel for Mrs Vueti submitted that there were two possible meanings of the expression of the “graduate certificate”, although he expressed a preference for leaving the expression undefined.  The first, which he considered too broad, was that a graduate certificate was a certificate issued to any person who completes a course.  If accepted, this meaning would be so broad as to encompass any trade certificate or for that matter any undergraduate degree.  The context makes it clear that so wide a definition cannot have been intended.

The second meaning was of a certificate issued to a graduate because that person is a graduate.  With respect, I do not think that this would provide a satisfactory meaning.  It would only be adequate if one added the requirement that the certificate be issued after completion of a further course of study for which the holding of an undergraduate degree, or equivalent, was a prerequisite.

In my view, therefore, a “graduate certificate” is a certificate issued to a person who has previously graduated as a result of a further course of study that that person has undertaken.  It is only if the expression is defined in that way that it fits readily into the context of reg 818.721.

There is, in my opinion, a further difficulty for the applicant’s argument, that being whether it is correct to say that completion of the Bachelor of Nursing degree leads to the award of the Certificate of Registration.  Of course, in one sense, it does, in that it is one of the prerequisites to the award of the nursing certificate.  There are other requirements, however.  Not everyone who completes the Bachelor of Nursing degree will automatically obtain the Certificate of Registration.  There is one qualification which, no doubt, most would pass but it cannot be ignored.  That is the requirement that the person in question be of good character.

In my view where the regulation uses the words, "leads to", what is intended is a proximate connection between the course of study and the award;  that is to say, a connection that is direct and not indirect.  The connection between the nursing certificate on the one hand and the degree is, in my view, not a sufficiently proximate connection to fall within the definition. 

For these reasons, I will dismiss the application and order the applicants to pay the respondent’s costs.

I certify that this and the preceding seven (7)
pages are a true copy of the Reasons for
Judgment herein of the Honourable Justice Hill

Associate:

Dated:            5 August 1997

Counsel for the appellants:                RB Wilson

Solicitors for the appellants:              Peter Leung

Counsel for the respondent:               NJ Williams

Solicitors for the respondent:             Australian Government Solicitor

Date of hearing:  31 July 1997