* SUDGMENT No. 97.8./.88.0 CATCHWORDS ADMINISTRATIVE LAW - appeal from Administrative Appeals Tribunal - whether question of law involved - whether a professional qualification can also _ be an academic qualification. Administrative Appeals Tribunal Act 1975 s.44 Student Assistance Act 1973 s.14 Student Assistance Regulations Reg.55 LALITHA NAGASINGHE v SECRETARY, DEPARTMENT OF EDUCATION No. G 159 of 1987 Woodward, Fisher and Spender JJ. 28 July 1988 Adelaide IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. G 159 of 1987 ) ) GENERAL DIVISION ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: LALITHA NAGASINGHE Applicant and SECRETARY, DEPARTMENT OF EDUCATION Respondent MINUTES OF ORDER COURT: Woodward, Fisher and Spender JJ DATE: 28 July 1988 PLACE: Adelaide THE COURT ORDERS THAT: The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY ) No. G 159 of 1987 ) ) GENERAL DIVISION ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: LALITHA NAGASINGHE Applicant and SECRETARY, DEPARTMENT OF EDUCATION Respondent COURT: Woodward, Fisher and Spender JJ DATE: 28 July 1988 PLACE: Adelaide REASONS FOR JUDGMENT THE COURT This is an appeal on a question of law from a decision of the Administrative Appeals Tribunal ('the Tribunal'). The decision, given by Deputy President Layton, followed her review of a decision made by an authorised person who failed to approve the grant to the applicant of a Post Graduate Award, pursuant to 5.14 of the Student Assistance Act 1973 ('the Act'). Section 14 of the Act stated at the relevant time, so far as is relevant for present purposes: "An authorized person may, subject to and in accordance with the regulations, approve the grant of a Post-graduate Award to a person who is an Australian citizen or a permanent resident of Australia and is undertaking or proposes to undertake, as a full-time student at a university or at an advanced education institution, a post-graduate course of study, instruction or research approved by the Minister for the purposes of this section .... Regulation 55 of the Student Assistance Regulations ('the Regulations') provides: "Course Awards 55. (1) Subject to sub-regulation (2), the Minister shall approve the method in accordance with which applicants may qualify for the grant of Course Awards in respect of a year. (2) The Minister shall not approve a method under sub-regulation (1) unless the method contains provisions-—— (a) for a committee, appointed by the Minister for the purpose of this sub-regulation after considering Nominations furnished to him by a committee representative of the universities, to classify all the applicants for Course Awards in order of merit; (b) with respect to the matters to which regard may be had in so classifying the applicants; and (c) by virtue of which-- (i) regard may be had, in so classifying the applicants, to any experience that applicants may have acquired in employment; and (ii) an applicant whose name appears on the order of merit shall not qualify in accordance with the method for the grant of a Course Award unless each applicant whose name is on the order of merit and who is classified equal to, or higher than, the first—mentioned applicant, also qualifies in accordance with the method for the grant of a Course Award. (3) The number of Course Awards granted in respect of a year shall not exceed the number equal to, or, having regard to the provisions of sub-paragraph (2) (c) (1i), as nearly as practicable equal to, the number determined by the Minister for the purposes of paragraph 52 (1) (c) as the number of Course Awards to be granted in respect of the year in accordance with this regulation. (4) A Course Award shall not be granted in respect of a year to an applicant other than an applicant who qualifies for the grant of a Course Award in respect of that year in accordance with the method approved by the Minister under sub-regulation (1)." Pursuant to sub-regulation 55(1), on 17 August 1984, the relevant Minister approved a proposed method of selection for awards. She did so by approving a minute submitted to her by an officer of her department. Omitting formal parts, that minute reads as follows: "Background Course Awards are granted to _ selected applicants wishing to undertake full-time study at universities in approved courses leading to a Master's degree by coursework. They were introduced in 1971 following the development of Master's coursework degrees at Australian Universities, with the principal objective of providing opportunities for further study to graduates with employment experience who wished to improve' their professional competence. The relevant Central Selection Committee for 1985 awards, which you have already appointed, met on 7 August 1984 and has drawn up the recommendations on the method of selection for 1985 awards set out in the following section. Proposed method of selection In recent years selection for awards has been on the basis of academic merit and relevant employment experience, with special provision for the selection of a small number of applicants without employment experience on the grounds of exceptional academic merit alone. The regulations require that the method of selection to be approved have regard to any experience that applicants may have acquired in employment. In formulating its recommendations for 1985 the Committee gave consideration to matters such as changing patterns of employment, including periods of registered unemployment, and to the status of non-remunerated work experience. The Committee agreed that the awards should, in addition to the objective of previous years, be available to facilitate a change of career direction or to enable graduates such as mature-age married women to retrain or acquire qualifications relevant to a return to the workforce after a period of voluntary or enforced absence. On this basis the Committee recommends that selection for 1985 awards be based on academic merit and relevant experience. The Committee further recommends that the method of selection for 1985 awards include, as in past years, provision for the following: delegation of preliminary selection to the universities which will be required to observe a points score system to ensure consistent ranking of applicants; the points score system to provide, in summary, for a maximum score of 15 per applicant, with components for academic performance at undergraduate level (five points), additional academic qualifications (four points), academic referee's report {two points) and relevant experience (four points), with special provision for certain applicants of exceptional academic merit; classification of applicants in order of merit (whether an applicant qualifies for an award will depend on the applicant's position on an order of merit list); selection by the Committee in two stages, namely Stage A selection in December 1984 for applicants whose results in courses required for entry to the proposed Master's course are known then or who are already undertaking Master's degree courses for which they are seeking award assistance; and Stage B selection in February next year for applicants not selected in Stage A and others (this procedure is designed to facilitate the early notification of successful applicants); . selection of sufficient applicants in Stage A to allow some 75 awards to be taken up (universities will initially nominate for consideration those applicants with a score of 8 or more on the points score system); . pre-selection in January 1985 by a sub-committee 1f£ this helps in advising some successful applicants at an early date; and . compilation of a reserve list." As can be seen from the minute, the Minister had already appointed a Central Selection Committee pursuant to sub-regulation 55(2). Among the documents placed before the Tribunal, and included in the Appeal Books before this Court, was a minute from the Assistant Secretary of the Student Assistance Programs Branch of the Department of Education to the Directors of the various State Offices of the Department, for them to pass on to universities. This enclosed two documents headed, respectively, 1985 POSTGRADUATE COURSE AWARDS SELECTION PROCEDURES and 1985 COURSE AWARDS ~ POINTS SCORE SYSTEM. There was no evidence to show whether these had originated within the Department or with the Central Selection Committee, although in each case there is internal evidence to suggest that the Central Selection Committee had at least approved the contents. The matter was argued, both at the Tribunal and before the Court, on the basis that these documents had appropriate status within the awards scheme. It will be necessary to refer later to the detailed prescriptions in the Points Score System which provide the necessary guidance to the universities. As required by the Minister, that system involved four categories: 1. academic performance at undergraduate level (maximum score 5 points), 2. additional academic qualifications (4 points), 3. academic referee's report (2 points), 4, relevant experience (4 points). The applicant received no score in category 1, because her Sri Lankan Diploma in Dental Surgery could not readily be verified, owing to the political disturbances in that country. She could eventually have expected to receive 1 point for that Diploma and, while confirmation of it was awaited, she was recorded as "not yet fully ranked". In categories 2 and 3 she was awarded 1 and 1.5 points respectively, and she received the maximum 4 points in category 4. Essentially, the applicant's claim is that she should have scored 4 points in category 2. This, together with 1 point for her Sri Lankan Diploma, would have brought her total score from 6.5 to 10.5 points, with the result that her application would probably have been successful. The eventual cut-off point for awards was 10 points. The applicant has the following qualifications: (1) Diploma in Dental Surgery from the University of Ceylon, 3 August 1957, (2) Diploma of Orthodontics, 10 April 1969, (3) Diploma in Dental Public Health, 12 October 1972, (4) Licentiate in Dental Surgery, from the Royal College of Surgeons of England, on 12 November 1964; and later a Fellow of Dental Surgery, from the Royal College of Surgeons of England, on 29 July 1971. The Points Score System for category 2 called for the "assessment of any additional academic qualifications gained above undergraduate level". It 18 clear from the guidance notes for category 1 that the fourth or honours year, following the first three years of an arts or science degree, was to be treated as 'above undergraduate level' and dealt with in category 2. The instructions for the use of the points score system in category 2 are set out as follows, ranging from the rating of 0 to the maximum of 4: "0 Honours III or Masters Qualifying program equivalent to Honours III or an ad hoc Masters Qualifying program (such as where the components of the program are substantially of undergraduate level or bear no relationship to an Honours program). 1 Masters Qualifying program at Honours IIB level; a relevant second degree or a relevant post-graduate diploma (at pass level). 2 Honours IIB in first degree; or a relevant post-graduate diploma, with exceptional merit; a Masters Qualifying program at Honours IIA level; Or satisfactory work in the first stage of the Masters degree course or in a course entitling the applicant to exemption therefrom. 3 Honours IIA in first degree; or Masters Qualifying program at Honours I level; or outstanding work in the first stage of the Masters degree course (i.e. being within the top 20% of Masters students over a period of time). 4 Honours I in the first degree." A note appearing under the scale stated that "... postgraduate diplomas awarded at a pass level are to attract one point", though two points could be awarded in cases of exceptional merit. The applicant was awarded 1 point in category 2, either for her diploma in Orthodontics or for that in Dental Public Health, depending on which was rated at the higher level. The applicant, however, argues that she was entitled to 4 points in category 2 for her Fellowship, as she claims it is at least equal to a lst class honours degree, or a Masters degree, and represents the highest level of qualification. She explained in argument that it is very difficult to get honours in any first degree course in dental surgery or dental science, because of the breadth of the course. In Australia 1t 15S possible to do a fourth or honours year, specializing in one aspect of the work, and get a good honours degree. There is no such final honours year un dental courses in England. If a higher academic qualification is sought there, it must take the form of a full Masters degree. An alternative to this is to spend upwards of a year qualifying for a Fellowship of the Royal College of Surgeons. Of the many who undertake the qualifying course and sit the examinations, only a small number are successful. In this sense the qualification is as hard to achieve as a first class honours degree at an Australian university. So the applicant's argument runs. However, the Points Score System used in assessing applications clearly emphasised university degrees or diplomas, or Masters Qualifying programs - all of which are obviously 'academic' qualifications. The applicant herself insists that her Fellowship 1s a 'professional' qualification, even though it was awarded following an examination process, amongst other requirements. The Tribunal's Reasons for Decision state that: "... the applicant maintains that this [the Fellowship] is an academic qualification which is the highest qualification one can achieve in dental surgery ..." The decision, aS incorporated in the appeal papers, was 'corrected' by the applicant to substitute 'professional' for 'academic' qualification in this passage. But unless she can establish that the Fellowship is an academic qualification, within the meaning of the Points Score Scheme, the applicant must have great difficulty in making out her case. - 10 - There 1s very little in the material before the Court to suggest that the Minister or the Central Selection Committee intended that points should be awarded for professional, as distinct from academic, qualifications. There was constant reference to "academic merit and relevant experience"; preliminary selection for awards was delegated to universities; all the detailed notes referred to qualifications which are only awarded by universities or similar academic institutions. In fact the only place in all the material about the awards scheme where it was suggested that a professional qualification had any relevance, was in the application form supplied to candidates. Item 11 in the form was headed "undergraduate or any other tertiary or professional studies". Miss Nagasinghe, who appeared for herself both before the Tribunal and before this Court, placed no descriptive evidence before the Tribunal of any academic element in the obtaining of her Fellowship. She informed this Court, in answer to questions from the Court, that she did a short course at the Eastman Dental Institute to enable her to sit the Fellowship examinations. The course comprised three months of lectures and clinical demonstrations. In addition, she did one year of practical work in recognised hospitals. In "Undergraduate -~i1- her application form, under the heading or any other tertiary or professional studies", Miss Nagasinghe set out (using abbreviations): 1951-1957 1963-1964 Licentiate of Dental Surgery (Ceylon) Licentiate of Dental Surgery Royal College of Surgeons (England) Under "Postgraduate Studies" she showed: 1967 1971-1972 Primary Fellowship of Dental Surgery Course Short Final Fellowship of Dental Surgery Course Diploma in Dental Public Health, Royal College of Surgeons Course (There 1s nothing before the Court to show why the applicant, having done her qualifying courses in 1966 and 1967 did not receive her Fellowship until 1971.) The Tribunal dealt with Miss Nagasinghe's application with great care, and delivered two carefully reasoned decisions, the first dealing with questions of jurisdiction and the second with the merits of the application for review. The respondent, while not conceding the point, has not challenged before this Court the Tribunal's finding that it had jurisdiction to entertain the application. On the merits of the application, the Tribunal made its finding in the following terms: "14. In order to consider the applicant's submission, it is necessary to consider the overall structure of the points score system. It has clearly and specifically been divided into two major sections - academic and employment experience. Categories 1 and 2 are relevant to academic merit and Categories 3 and 4 are relevant to employment experience. It is clear - 12 - from the points score system that it 1s only university degrees or diplomas or Masters Qualifying programs which are used as the basis for point scoring in Categories 1 and 2. No mention is made of Fellowships or Memberships of professional bodies, even if such Fellowships have been gained by examination. Many professions have internal examination systems which are used as important tools for the practice of those professions; for example, doctors, dentists, lawyers, engineers, etc. These Fellowships are not university derived and would not normally be regarded as part of academic qualifications, particularly in the context of an application for obtaining an award to undertake full-time study leading to a Master's degree, which is what the applicant's application relates to. Being a Member or a Fellow in such an organisation is very relevant, however, to Categories 3 and 4 of the' selection process, namely, employment experience. Prestigious work in the profession can usually only be achieved by Membership or Fellowship of such organisations. Therefore, the argument 15 not whether being a Fellow of the Royal College of Surgeons is more prestigious and more difficult to obtain than a first class Honours degree; the two are essentially different. The first class Honours degree is an academic qualification; the Fellowship is a professional qualification. 15. It was therefore quite appropriate for the committee to ignore the applicant's Fellowship in considering Category 2, as it is inherently included as part of her high scoring in Categories 3 and 4 for which she received a total of 5-1/2 points out of a possible total of 6." There are, in our view, two arguable errors in these conclusions of the Tribunal. In the first place, the evidence shows that category 3 - 'academic referee's report' - meant what it said and so was relevant to academic work and not, as the Tribunal said, to employment experience. Nor was there any evidence to show that the applicant's score of 4 points in category 4 depended in any ~13- way upon her Fellowship. Her 20 years of employment were more than enough to gain the full score in that category. We therefore do not think it can be said that the applicant's Fellowship "is inherently included as part of her high scoring" ian categories 3 and 4. But these were errors of fact, apparently arising from speculation; they did not amount to errors of law, with which this Court is exclusively concerned (see Administrative Appeals Tribunal Act 1975, s.44). And, in any event, we can see no good reason to interfere with the Tribunal's ultimate decision. The truth of the matter is that, in spite of the reference to professional qualifications in the application form, there was no provision for the recognition of such qualifications in the Points Score System, which was approved by the Central Selection Committee and accorded with the Minister's guidelines. As the applicant herself said to the Court, "This point score system, which 1s the academic scale, there must be some way of using it for the professions." In fact, in our view, no such way was provided to cover her case, Later she said, very fairly, "I am not criticizing the scheme as such. I am just saying that they have not told you how to use the scheme for .... a similar circumstance or training or education." —~14- In fact, the only possible way in which the matter could have reached the Committee was if the University had seen fit to draw the Fellowship to the Selection Committee's attention - under the heading of "special factors which the university considers enhance an applicant's merit but are not covered on this rating scale". However, the note to this provision says that it applies particularly to publications, public performances and public exhibitions and that marks for these should be given outside the rating system. It does not seem to be intended to cover a case such as the present. Because the applicant's score did not reach 8 points, her application did not reach the Committee to be placed in an order of merit. That arrangement, set out in the Selection Procedures, by which only those applicants with a points score of 8 or more were ranked in order of merit at first instance, and only those with a score fixed by the Committee at about the same level (7-8) were ranked eventually, may be in breach of reg. 55(2)(a) above. But that does not assist the applicant's case. It is true that the Tribunal found that the 'authorised person' was not bound by the Committee's order of merit and could, presumably, have placed the applicant by awarding notional points to her Fellowship as an academic (as well as professional) qualification had he been persuaded to do so. So could the Tribunal have done; but no evidence was placed before it by the applicant which could have justified it in doing so. -~-15- In our view, no error of law by the Tribunal has been shown. At most there may be a weakness or gap in the award scheme itself in failing to have regard to the academic content of some professional qualifications. The material before us is not sufficient to enable us to express an opinion on this matter, even if it were our role to do so. In fact the question is clearly one of policy for the Minister or the Central Selection Committee to consider. In this connexion, it must be remembered that Fellowships are awarded by professional bodies other than medical and dental colleges. Before leaving the case, we point out the extreme difficulty facing the Tribunal, in October 1987, or the Court in June 1988, in doing anything about the applicant's failure to gain a course award for 1985, 1n a course for which the University did not select her. The delay has been beyond the applicant's control, as she has pursued the avenues open to her with determination. Presumably a finding in her favour might have assisted a later application. In the event, for the reasons given, the application fails and must be dismissed. The respondent has not sought any order for costs. ~ 16 - I certify that the fifteen (15) preceding pages are a true and accurate copy of the Reasons for Judgment herein of The Court Associate to The Hon Mr Justice Woodward Dated: 20/7 . Applicant appeared in person. Counsel for the Respondent: Mr J. O'Halloran Solicitors for the Respondent: Australian Government Solicitor