Australian Immigration Daily News

OK everyone, are you ready for today’s public opinion poll? 

Be careful how you answer! Your responses will be recorded and reported to the Department (just kidding of course!) 

How many of you will be sorry to see the current Schedule 5 risk assessment framework for student visas repealed on 1 July? 

No you are not allowed to postpone voting until you know what replaces it! That would be cheating and is not allowed on this blog! 

For those of you who answered “Yes, I am perfectly happy with Schedule 5 as it is, it’s clear as a bell”, there’s a recent case from the Federal Circuit Court that is required reading: Maestro & Anor v Minister for Immigration & Anor  (2016) FCCA 1095 (13 May 2016). (Bonus points will be awarded to anyone who can explain why in Australian case law the word “another” is abbreviated as “anor” – can we thank the UK for that usage?). 

The Maestro case could perhaps be “Exhibit A” as to why reform of the risk assessment framework was needed.  If after reading the rest of this post you are still in love with Schedule 5, report directly to the principal’s office, where you will be required to write the exceptions to the Labour Market Testing requirement on a blackboard 500 times! 

The case also demonstrates why any possible imprecision in legislative wording can give rise to complexity and confusion.  It also helps to explain why lawyers such as me are a necessary “social evil” (just kidding again!).  After all, there has to be someone out there who can answer questions like:

“How many angels can dance on the head of a pin” – right? 

Here’s what happened in the Maestro case: 

The applicant was seeking a further student visa.  He wanted to undertake courses in hospitality – first a certificate course in commercial cookery and then a hospitality diploma course.  He had previously also taken a Building and Construction course. 

Under sub-clause 572.223(2)(a) of Schedule 2, he was required to give evidence in accordance with the requirements of Schedule 5A for the highest assessment level that applied to him. 

In the applicant’s case, that meant that under 5A507, he had to give evidence that as the holder of a student visa, he had successfully completed as substantial part of a course that was conducted in English and was leading to a qualification under the Australian Qualifications Framework  at the Certificate IV level or higher. 

Although a delegate of the Minister had refused the application for a student visa, the applicant was able to submit to the Tribunal transcripts of his academic record in respect of the Building and Construction course (which was a Certificate Level IV course) as well as a Certificate III in Commercial Cookery. 

So, with apologies for the joke, the case before the Tribunal was “cake”, wasn’t it? 

Not so fast! 

The transcript for the Certificate IV building course revealed that the applicant had been assessed as “not yet competent”  in more course units as he had been assessed as” competent”. 

So, the Tribunal concluded that since the applicant had not yet successfully completed at least half the units in his Certificate IV building course, he could not be deemed to have successfully completed a “substantial” part of the course. 

Uncontroversial? Nope! 

The Federal Circuit Court found that the Tribunal had committed jurisdictional error by interpreting the term “substantial” to mean that the applicant must have successfully completed at least half the units in the Certificate IV course.  In the view of the Court, this approach by the Tribunal was flawed. 

In considering the issue, the Court noted that substantial ambiguity attaches to the word “substantial” when it is used in legislation. The Court referred to case law which states that the word “substantial” is “imprecise and ambiguous” and can carry a variety of meanings, ranging from “considerable or big” to “not merely nominal, ephemeral or minimal”.  

In other words, under case law, the word “substantial” can mean practically anything! What’s substantial to me might not be substantial to you!  So should it be subject to the infamous “duck test” – if it looks like a duck, walks like a duck, and quacks like a duck, it is a duck? 

What troubled the Court with the Tribunal’s approach here was that the Tribunal has applied a strict mathematical formula, again, that not demonstrating competence in at least half, or 50% of the course units necessarily meant that the applicant had not substantially completed the course.  

The Court (Judge Smith) took the view that while the term “substantial” indisputably implies that a considerable level of course completion is required in order to meet the criterion, the Tribunal was incorrect to interpret the regulation as requiring some fixed percentage of pass rate. 

It was the Court’s view that the word “substantial” cannot be read in a rigid, fixed or inflexible way, or as requiring some definite percentage of successful completion of the units in a course.  For example, Judge Smith noted that rather than approaching the issue with a mathematical formula (“e.g. substantial means you must have completed at least 50% of the units in the course”) that some “qualitative analysis may sometimes be necessary (for example considering whether one of the course units carries a significant amount of the assessment for a certain course). 

Now, let’s repeat the poll! Does anyone out there still regret the soon-to–happen demise of Schedule 5?

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.