FEDERAL COURT OF AUSTRALIA Perumal v Minister for Immigration and Border Protection [2014] FCA 555 Citation: Perumal v Minister for Immigration and Border Protection [2014] FCA 555 Appeal from: Perumal v Minister for Immigration and Border Protection [2013] FCCA 2105 Parties: POONGOTHAI BAGAVATI PERUMAL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: VID 44 of 2014 Judge: BROMBERG J Date of judgment: 26 May 2014 Catchwords: MIGRATION – appeal from dismissal of application for judicial review – whether Tribunal was required to take into account a particular consideration – whether 2 year study requirement in reg 1.15F of the Migration Regulations 1994 (Cth) satisfied – whether procedural fairness denied – no jurisdictional error – appeal dismissed. Legislation: Migration Regulations 1994 (Cth) regs 1.15F, 1.15F(1)(b), 1.15F(1)(c), cl 485.213 of Schedule 2 Cases cited: Perumal v Minister for Immigration and Border Protection [2013] FCCA 210 Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458 Minister for Immigration and Citizenship v SZJSS (2012) 243 CLR 164 Date of hearing: 26 May 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 30 Counsel for the Appellant: The appellant appeared in person Solicitor for the First Respondent: Mr M Palfrey of Sparke Helmore IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 44 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: POONGOTHAI BAGAVATI PERUMAL Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: BROMBERG J DATE OF ORDER: 26 MAY 2014 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 44 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: POONGOTHAI BAGAVATI PERUMAL Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: BROMBERG J DATE: 26 MAY 2014 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Circuit Court of Australia published as Perumal v Minister for Immigration and Border Protection [2013] FCCA 2105. By that judgment, a judge of the Federal Circuit Court (the primary judge) dismissed with costs the appellant's application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 27 February 2012 to refuse to grant the appellant a Skilled (Provisional) (Class VC) visa (the visa). The appellant is a citizen of India. She applied for the visa on 15 August 2008. 2 In order to be granted the visa, the appellant had to meet a range of criteria. Relevantly, she needed to satisfy cl 485.213 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). At the relevant time, that clause provided: The following requirements are met: (a) the applicant satisfies the 2 year study requirement in the period of 6 months ending immediately before the day on which the application was made. 3 The "2 year study requirement" referred to in cl 485.213 of Sch 2 of the Regulations was defined in reg 1.15F of the Regulations as follows: 1. a person satisfies the 2 year 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. 4 As I understand it, the term "academic year" as utilised in that regulation is now defined. At the relevant time it was not. 5 On 7 August 2009, a delegate of the first respondent (the Minister) refused to grant the appellant the visa. On 14 August 2009, the appellant applied to the Tribunal for review of the delegate's decision. The Tribunal conducted a hearing on 15 December 2011. As a result of its hearing and after receiving further submissions, the Tribunal decided to confirm the decision of the Minister's delegate to deny the appellant the visa. 6 The Tribunal determined that the appellant had not met the "2 year study requirement" of reg 1.15F of the Regulations, and in particular, that the requirement of paragraph (c) of that regulation was not satisfied. In that respect, the Tribunal relied on evidence from: (i) a statement of academic completion from RMIT for the appellant which stated that "the standard duration for the Master of Engineering (Information Technology) program is one and a half years full time/three years part time"; and (ii) information on the website of the Commonwealth Register of Institutions and Courses for Overseas Students that the Master of Engineering course undertaken by the appellant had a duration of 78 weeks. 7 The Tribunal deployed that evidence to conclude that the Master of Engineering course upon which the appellant relied was not, in terms of reg 1.15F(1)(c), completed as a result of a total of at least two academic years of study. 8 It was not in issue before the Tribunal that from July 2006 to June 2007 the appellant was enrolled in a Master of Applied Science (Information Systems) course at RMIT as a full time student and that she then transferred to the Master of Engineering course as a full time student and completed her studies in June of 2008. 9 By her Notice of Appeal in this Court the appellant challenges the decision of the primary judge. The ground relied upon is that the decision of the Tribunal and the Federal Circuit Court is affected by jurisdictional error. 10 The appellant is not legally represented. Her ground of appeal is somewhat ambiguous. I have proceeded on the basis that what the appellant seeks to challenge is the failure of the primary judge to identify jurisdictional error in the decision of the Tribunal. 11 The appellant has provided particulars to the ground of appeal relied upon which are themselves grounds rather than particulars. Those particulars are set out in numbered paragraphs. I will consider each of those paragraphs as though each particular identified, in fact, raises a ground of appeal for determination on the appeal. I should add that the grounds of appeal are essentially the same grounds relied upon by the appellant before the primary judge. Ground 1(a) 12 By this ground, the appellant alleged: One of the matters that the tribunal must take into consideration is the Australian Standard Classification of Occupations (ASCO) as it applies to occupation definitions and skill requirements in Australia. That the applicant had her skill assessment based on a Computer Professional ASCO Code 2231-79, which she applied for in 2008/09. This was subsequently granted and she became a member of the Australian Computer Society. 13 The appellant contended that she had her skills assessment based on a computer professional Australian Standard Classification of Occupations (ASCO) Code 2231-79, which she applied for in 2008/2009. This was subsequently granted and she became a member of the Australian Computer Society (ACS). She contended that one of the matters that the Tribunal had to take into consideration was the ASCO as it applied to occupational definitions and skill requirements in Australia. Essentially, the appellant contended that the Tribunal had to take into account the fact that she had become a member of the ACS. 14 As the Minister's submission rightly contended, a decision-maker may err if a decision-maker fails to take into account a consideration which the decision-maker is bound to deal with: Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24 at 39 (Mason J). The Minister was also right to contend that there is nothing in reg 1.15F that required the Tribunal to consider the ASCO Code applicable to the appellant. The primary judge came to the view that the selection requirements of professional organisations are not determinant of whether a critical criterion has been met when other evidence to the contrary was before the Tribunal. 15 The primary judge was also of the view that insofar as the appellant sought to rely, by way of evidence, on her membership of the ACS, any weight to be afforded to that evidence was a matter for determination by the Tribunal and not a matter capable of founding jurisdictional error. 16 I can see no error in the primary judge's approach. It follows that ground 1(a) should be rejected. Ground 1(b) 17 By ground 1(b), the appellant alleged that the Tribunal erred in finding that she did not satisfy the two year study requirement. That, so the ground stated, was because: "there is clear evidence that I had completed two years of study to achieve my Masters Degree and it is confirmed by the RMIT. I undertook the Master of Applied Science and was credited for this study when I then transferred to Master of Engineering. This was a two year program that commenced in 2006 and was completed in 2008." 18 This challenge to the Tribunal's decision needs to be considered by reference to the enquiry required of the Tribunal by reg 1.15F. When the terms of that regulation are examined, it is apparent that sub-para (b) directs attention to the chronological period over which the course or courses undertaken by the visa applicant were completed. The visa applicant must have completed the relevant course or courses over at least 16 calendar months. In contrast, sub-para (c) directs attention to the quantity of academic study required by the particular course or courses undertaken by the visa applicant. The academic study required by the course or courses of study must total at least "2 academic years". The period of time actually taken by the visa applicant to complete the course or courses is the focus of sub-para (b). 19 In my view, sub-para (c) is focused upon the duration of course work required for the course of study undertaken by the visa applicant measured by reference to the academic study years required to ordinarily complete the course or courses in question by full-time study. The challenge here made by the appellant is fundamentally focused on the time that she spent in study, that is, the chronological period of her studies rather than the amount of time required to undertake by course work the degree (Master of Engineering) upon which she relied. 20 The Tribunal's reasoning did, in my view, focus on the correct question. It was open to the Tribunal to come to the view on the evidence before it that the degree of Master of Engineering at RMIT required one and a half academic years of full-time study. Sub-para (c) of reg 1.15F(1) required a minimum qualification of two academic years of study. 21 In my view, the Tribunal was right to conclude that sub-paragraph (c) of reg 1.15F(1) was not satisfied. The primary judge came to the same view. There is no error in the primary judge's conclusion and for that reason, the appellant's ground 1(b) must be rejected. Ground 1(c) 22 By ground 1(c), the appellant alleges that she was "misled by the Tribunal into believing the two year study requirement had been satisfied and, therefore, did not receive a proper hearing". The primary judge dealt with that matter at [21] of his reasons for judgment. His Honour came to the view that a fair reading of the transcript indicated that the Tribunal was troubled about whether the appellant had fulfilled the requirement as to two academic years of study and that the Tribunal had clearly indicated that it had to consider that matter further before making a determination. As the primary judged noted, the Tribunal engaged with the appellant's representative on this issue and further submissions were made on behalf of the appellant. The primary judge came to the view that there was nothing said by the Tribunal to induce confidence in the appellant that she had satisfied the Tribunal on that issue. 23 The challenge made by the appellant in this regard is essentially that she was denied an opportunity to make further submissions having been misled into believing that the Tribunal was satisfied about this particular issue. The challenge raises a possible breach of procedural fairness. As is well recognised, a practical injustice needs to be shown to establish a breach of procedural fairness: Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458 at [156]-[157] (Hayne, Crennan, Kiefel and Bell JJ). The appellant was unable to indicate what further submission she would have made to the Tribunal if it had been her understanding that the Tribunal was not satisfied that she had met the requirement of having undertaken two academic years of study. 24 I am satisfied that there is no error in the approach of the primary judge. I am also satisfied that no practical injustice has resulted, even if the appellant's contention that she was wrongly induced to believe that she had satisfied the Tribunal on this issue was accepted. For those reasons ground 1(c) must be rejected. Ground 1(d) 25 By this ground, the appellant alleged that greater weight should have been placed on the RMIT letter of completion. The primary judge dealt with the same challenge at [22] of his Honour's reasons for judgment. As the primary judge observed, the weighing of the evidence was a matter for the Tribunal. There can be no doubt that is so: Minister for Immigration and Citizenship v SZJSS (2012) 243 CLR 164 at [33]. 26 Ground 1(d) must be rejected. Ground 1(e) 27 By this ground, the appellant alleged that she was prejudiced because of delay. In relation to this ground, the Minister contended that cl 485.213(1)(a) of the Regulations required the appellant to satisfy the "2 year study requirement" in the period of six months ending immediately before the day on which the application was made. 28 The Minister rightly contended that the "delay" identified by the appellant occurred after the lodgement of her visa application. That delay could not have prejudiced the appellant's prospects of succeeding on the application for the visa which she made. The primary judge came to the same view at [23] of his Honour's reasons for judgment. 29 For those reasons, ground 1(e) must be rejected. Conclusion and Orders 30 In light of those conclusions, the appeal must be dismissed. It follows that the appellant should pay the Minister's costs of the appeal. I will make orders to that effect. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 4 June 2014