Al-Magableh v Minister for Immigration & Anor
[2009] FMCA 230
•20 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AL-MAGABLEH v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 230 |
| MIGRATION – VISA – Student (Temporary) (Class TU) visa – IELTS test – whether the requirement in item 5A407(a) and item 5A407(b) that an applicant achieve a particular Overall Band Score in an IELTS test “taken less than 2 years before the date of application” is capable of being satisfied by an IELTS test taken after the date of application for review by the Migration Review Tribunal and before the Tribunal’s decision – whether the Tribunal failed to take into account a relevant consideration – no jurisdictional error. |
| Acts Interpretation Act 1901 (Cth) ss.15AA, 15AB Migration Act 1958 (Cth) ss.303, 474 Migration Regulations 1994 (Cth) Reg. 2.07.AO, Schedule 2, cl.572.223(2)(a)(i)(A) Migration Amendment Regulations 2001 (No. 5) (SR 2001 No. 162) |
| Shah v Minister for Immigration & Anor [2009] FMCA 108 Fan Fan v Minister for Immigration & Anor [2009] FMCA 123 Shibly v Minister for Immigration & Anor [2009] FMCA 193 NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3 Bhattarai v Minister for Immigration [2008] FMCA 1709 Ruykys v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 538; [2003] FCA 433 Shi v Migration Agents Registration Authority (2008) 248 ALR 390 Sok v Minister for Immigration and Citizenship (2008) 249 ALR 651 Minister for Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95 |
| Applicant: | ALI MOHAMMAD AL-MAGABLEH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3336 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 March 2009 |
| Date of Last Submission: | 13 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Reynolds |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the First Respondent | Mr Reilly |
| Solicitors for the Respondents | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3336 of 2008
| ALI MOHAMMAD AL-MAGABLEH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is another application to review a decision of the Migration Review Tribunal where the Tribunal has affirmed a decision to refuse the grant of a Student (Temporary) (Class TU) visa because the Applicant did not provide evidence that he had achieved an appropriate score in an IELTS test that was taken less than two years before the date of the application. The Court has recently considered this issue in Shah v Minister for Immigration & Anor[1], Fan Fan v Minister for Immigration & Anor[2] and Shibly v Minister for Immigration & Anor[3].
[1] [2009] FMCA 108
[2] [2009] FMCA 123
[3] [2009] FMCA 193
In this case, the Applicant claims that the Migration Review Tribunal by:
a)failing to take into account the results of an IELTS[4] test report form submitted by the Applicant; and
b)applying the wrong test when it construed items 5A407(a) and (b) of Schedule 5A of the Migration Regulations to the effect that these provisions could never be satisfied by an IELTS test taken after the date of the application for a visa.
[4] International English Language Testing System
Background
The Applicant applied for a Student (Temporary) (Class TU) visa on 16th July 2007.
A delegate of the Minister for Immigration and Citizenship refused the application on 31st August 2007 and again, for some reason, on 9th October 2008. The delegate’s reason for refusing the application were:
You did not satisfy Regulation 572.223(2)(a)(i)(A) for the following reasons:
The applicant has been unable to provide evidence that his English language proficiency meets the requirement of the legislation, as required under schedule 5A407, for the assessment level to which he is subject.[5]
[5] Court Book 8
The delegate also found that the Applicant did not satisfy the primary criteria for any other subclass of a Class TU visa.
Application to the Migration Review Tribunal
The Applicant applied to the Migration Review Tribunal on 28th November 2007.
On 16th April 2008, the Applicant’s migration agent wrote to the Tribunal and advised:
The above-named applicant has sat for the IELTS test recently and he obtained his certificate that a certified copy is enclosed.[6]
[6] Court Book 35
The migration agent provided an International English Language Testing System Test Report Form dated 16/04/2008 issued by the University of Technology Sydney, showing that the Applicant had sat for the test on “13/MAR/2008”. The Test Report Form also showed that the Applicant had obtained an Overall Band Score of 5.5.[7]
[7] Court Book 36
The Tribunal invited the Applicant to attend a hearing of the Tribunal on 25th September 2008. However, at the request of his migration agent, the Tribunal adjourned the hearing to 9th October 2008.
The migration agent posted a written submission to the Tribunal dated 7th October 2008. The Applicant attended the hearing, accompanied by his migration agent. The agent made further written submissions to the Tribunal on 21st October and 3rd November 2008.
The Migration Review Tribunal Decision
The Tribunal handed down its decision on 20th November 2008, affirming the decision not to grant the Applicant a Student (Temporary) (Class TU) visa. The Tribunal referred in its decision to the various documents submitted by the Applicant, including the IELTS Test Result form, although the Tribunal erroneously described it as referring to “a test taken on 16 April 2008”.[8]
[8] Court Book 81
The Tribunal found that the Applicant was not a person designated under regulation 2.07AO of the Migration Regulations. The Tribunal then went on to refer to the Gazette Notice in force at the time of application and found that the Applicant was subject to consideration under Assessment Level 3.
The Tribunal considered what it called “The Schedule 5A requirements”. It made this finding:
On the basis of evidence submitted to the Tribunal following his application for review, the Tribunal finds that the applicant did not meet the requirements of Clause 5A407, specifically that he did not submit evidence of an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5. In these circumstances, the Tribunal is not satisfied that the applicant at the time of application had a level of English language proficiency that was appropriate to the course he wished to undertake.[9]
[9] Court Book 82
Confusingly, the Tribunal then stated:
On the basis of the above, the Tribunal finds that the applicant has given the Tribunal evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and Assessment Level 3, to which he is subject, in relation to the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake (cl.5A407). Accordingly, the applicant satisfies the requirements of cl.572.223 (2)(a)(i)(A).[10]
[10] Ibid
However, the Tribunal then set out, under the heading “Conclusions”, this statement:
As the Tribunal has found the applicant does not meet an essential requirement of cl.572.223, and as no evidence has been provided on which the Tribunal could be satisfied that the applicant has met the criteria for any other Student (Temporary)(Class TU) visa subclasses, the decision under review must be affirmed.[11]
[11] Ibid
Accordingly, the Tribunal affirmed the delegate’s decision not to grant the visa.
Application for Judicial Review
The application filed an application for review and an affidavit in support on 17th December 2008. He filed an amended application on 27th February 2009, seeking writs of certiorari, mandamus and prohibition.
The amended application contains two grounds of review.
Ground 1 claims that the Tribunal committed jurisdictional error by failing to take into account a relevant consideration.
Ground 2 claims that, further and in the alternative, the Tribunal committed jurisdictional error by applying the wrong test.
The particulars of the Applicant’s first ground are as follows:
a)The Tribunal found that the Applicant did not submit evidence of an International English Language Testing System (IELTS) test taken less than 2 years before the date of the application with an Overall Band Score of at least 5.5.
b)In making the finding referred to in (a) above, the Tribunal failed to take into account the IELTS test result given by the Applicant to the Tribunal, being a relevant consideration.
The particulars of the Applicant’s second ground are:
a)In rejecting the application to it, the Tribunal held that the Applicant did not satisfy regulation 572.223(2)(a)(i)(A) of the Migration Regulations which, relevantly, required the Applicant to comply with clauses 5A407(a) and (b) of Schedule 5A of the Regulations.
b)In making the finding referred to in the preceding paragraph, to the extent that the Tribunal had regard to the Applicant’s IELTS test result, the Tribunal adopted a construction of clauses 5A407(a) and (b) to the effect that these provisions could never be satisfied by an IELTS test taken after the date of the application.
c)This constituted an erroneous construction of regulation 572.223(2)(a)(i)(A) and clauses 5A407(a) and (b) of Schedule 5A because an IELTS taken between the date of the visa application and date of decision was capable of satisfying those provisions, correctly construed.
d)In applying an erroneous construction of the Regulations, the Tribunal applied the wrong test and, accordingly, its decision was vitiated by jurisdictional error.
The Applicant’s Submissions
Counsel for the Applicant, Mr Reynolds, submitted that the Tribunal did not refer to or explain why the IELTS certificate submitted by the Applicant did not satisfy item 572.223(2)(a)(i) of Schedule 5A. He submitted that if by its finding the Tribunal meant that the Applicant did not submit evidence of an IELTS test at all, then it engaged in jurisdictional error by failing to take into account a relevant consideration. He submitted that the words used by the Tribunal and the absence of any “active intellectual process” mean that the Court should infer that the document was not considered at all, which amounts to jurisdictional error (see NAJT v Minister for Immigration & Multicultural & Indigenous Affairs[12] at [212]-[213]; see also SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs[13]).
[12] (2005) 147 FCR 51
[13] [2006] FCA 3
Alternatively, it was submitted that if the Tribunal’s decision meant that the IELTS test report was not the result of a test “taken less than 2 years before the date of application”, then this proceeded on an erroneous construction of cl.572.223(2)(a)(i)(A) and item 5A407 of Schedule 5A. This was submitted to be a jurisdictional error.
The Applicant’s submission is that the phrase “2 years before the date of application” denotes a single point of time, and the operative phrase “taken less than” precludes any test taken prior or equal to this point of time. Absent is any limitation as to how recent the test can be.
The submission is that an IELTS test for which the Applicant sat after the date of the application for a visa can only be “less than 2 years before the date of application”. It was further submitted that it is logically for the Tribunal to find that the timing of the Applicant’s IELTS test was not any of these alternatives:
a)more than 2 years before the date of application; or
b)equal to 2 years before the date of application; or
c)less than 2 years before the date of application.
Mr Reynolds went on to submit that the Tribunal’s interpretation could only be supported if the phrase were to be read as: “taken less than 2 years before, but not later than, the date of application” or “taken less than 2 years before, and before, the date of application”, or something similar. He submitted that the words actually used in the provision have a plain meaning and there is no basis for reading any such words into the regulation.
Further, Mr Reynolds submitted that the Tribunal’s reasoning that “the past tense in the reference to the test being taken, at the time of application” implied that the test must have been conducted before the application and not after the date of the application[14]. However, it is submitted that the error in this approach is that the phrase “before the date of application” is part of a larger phrase “2 years before the date of application” and therefore cannot be considered in isolation.
[14] See Court Book 121 at [36]
Counsel for the Applicant also referred to the fact that item 5A407 of Schedule 5A works in conjunction with cl. 572.223(1) and (2)(a)(i)(A) of Schedule 2 of the Regulations, which is a criterion at the time of decision. This suggests that a test sat between the application and the decision would satisfy the requirements of cl. 572.223, otherwise, it would have been a criterion at the time of application. The construction adopted by the Tribunal gives no effect to the legislature’s choice to make item 5A407(a) and (b) a criterion at the time of decision.
Mr Reynolds referred to a number of authorities. He pointed out that the Tribunal had previously adopted what the Applicant submits is the correct construction, including 071292782 [2007] MRTA 777.
He referred to the decision of Smith FM in Bhattarai v Minister for Immigration[15], where his Honour stated at [9]:
Although it is not clear from the language of these criteria, I accept the submission of the Minister that it is possible for that test to be undertaken during the pendency of the proceeding.
[15] [2008] FMCA 1709
Mr Reynolds submitted that the Minister was correct in conceding the matter on that occasion.
Counsel for the Applicant also submitted that the decision of Mansfield J in Ruykys v Minister for Immigration and Multicultural and Indigenous Affairs[16] provided some support for the Applicant’s construction, although it concerns the interpretation of the words “before turning 18”. He submitted that the decision is authority for the proposition that where there is a reference to a matter occurring before a specific point in time there is no basis upon which a period can be inferred up to an including that point in time. Thus, he asserted, by analogy, the phrase “less than 2 years before the date of application” cannot be taken to mean “less than 2 years before, and up to, the date of application”.
[16] (2003) 128 FCR 538; [2003] FCA 433
Mr Reynolds also referred the Court to the decision of the High Court in Shi v Migration Agents Registration Authority[17] where the High Court emphasised that the default position where merits review was available is that evidence can be submitted up to the date of a Tribunal’s decision in the absence of clear statutory language to the contrary.
[17] (2008) 248 ALR 390
Again, counsel for the Applicant referred the Court to Sok v Minister for Immigration[18], which is a case where the High Court found that the claims to be considered by a Tribunal included those made up to the date of the Tribunal’s decision.
[18] (2008) 249 ALR 651
The First Respondent’s Submissions
Mr Reilly of counsel, who appeared for the First Respondent, the Minister for Immigration and Citizenship, submitted that there was no basis for suggesting that the Tribunal had overlooked the communications submitted by the Applicant, as the Tribunal had explicitly noted the communication of 8th October 2008[19], and the particular IELTS test report form appeared several times on the Tribunal file.[20]
[19] Court Book at 81
[20] Court Book at 36, 49 and 54
He submitted that the real issue is whether cl.572.223(2)(a)(i)(A), when read with item 5A407(a)(ii) of Schedule 5A to the Regulations can be satisfied by the provision of an IELTS test taken after the date of application for the visa. The Minister relies on the reasons given by this Court in Shah v Minister for Immigration and Fan Fan v Minister for Immigration and Citizenship and submitted that, as these decisions are not clearly wrong they should be followed (Minister for Immigration v Prathapan[21]at 104).
[21] (1998) 86 FCR 95
It is the First Respondent’s view that there is no ambiguity in item 5A407(a)(ii), but in any case, if extrinsic materials (i.e. the Explanatory Statement to the Migration Amendment Regulations 2001 (No.5) (SR 2001 No. 162) are considered under the provisions of s.15AB of the Acts Interpretation Act 1901, no different result would follow.
Again, if legislative purpose were to be considered in accordance with s.15AA of the Act, there is no identifiable purpose that would favour allowing applicants to provide evidence of language qualification after applying for the visa.
Mr Reilly submitted, correctly in my view, that Shi v Migration Agents Registration Authority has no relevance to the interpretation of item 5A407(a), which contains a temporal element, as the decision in Shi concerned the interpretation of s.303 of the Migration Act, which did not contain a temporal element.
Conclusions
The first ground in the amended application claims that the Tribunal failed to take into account the IELTS test given by the Applicant to the Tribunal, being a relevant consideration.
The Applicant’s migration agent submitted a certified copy of the IELTS Test Report Form dated 16th April 2008 under cover of his letter of that same date. The agent submitted another copy of the Test Report Form with a submission on 7th October 2008. The Applicant even brought another copy with him to the hearing on 9th October.
The Tribunal specifically referred to the IELTS Test Report Form in the Decision Record:
On 8 October 2008, the applicant submitted to the Tribunal an IELTS test result for a test taken on 16 April 2008. This showed an overall band score of 5.5.[22]
[22] Court Book 81
The certificate was dated 16/4/2008 and it showed that the Applicant had taken the test on 13th March 2008, but nothing turns on that point. It is a factual error of no consequence, as the certificate still referred to a test taken after the date of application for the visa.
In its Findings and Reasons the Tribunal found:
On the basis of evidence submitted to the Tribunal following his application for review, the Tribunal finds that the applicant did not meet the requirements of Clause 5A407, specifically that he did not submit evidence of an IELTS test that was taken less than 2 years before the date of application, an Overall Band Score of at least 5.5.[23]
[23] Court Book 82
I am satisfied that the Tribunal took into account the IELTS Test Report Form that was submitted on behalf of the Applicant but found that it did not meet the requirements of Item 5A407, because it was not evidence that the Applicant had obtained the requisite score in an IELTS test taken less than 2 years before the date of application.
The Applicant’s Ground 1 has not been made out.
The Applicant’s second ground asserts that the Tribunal adopted an erroneous construction of cl. 572.223(2)(a)(i)(A) and items 5A407(a) and 5A407(b), because an IELTS test taken between the date of the visa application and the date of decision is capable of satisfying those provisions, correctly construed.
I am not satisfied that the Applicant’s second ground has been made out. There is, with respect, a flaw in the logic of the Applicant’s argument about the time when the Applicant may sit for the test. Counsel for the Applicant has argued:
There is no ambiguity. A test can only be sat ‘more than’, ‘equal to’ or ‘less than’ “2 years before the date of application”. There are no other alternatives.[24]
[24] Applicant’s Outline of Submissions at [21]
The flaw in that argument is that there is another alternative. A test can be sat after the date of application, although it will not allow the Applicant to comply with the requirement in item 5A407. That is what happened in this case. The Applicant did not sit for the test at any time before the date of application; he sat for the test after the date of application and therefore failed to meet the requirement.
There is no conflict between cl.572.223 of Schedule 2 and item 5A407 of Schedule 5A. There is no ambiguity in the meaning of item 5A407.
Clause 572.223 sets out criteria that must be satisfied at the time of the decision whether or not to grant the visa. Sub-clause 572.223(2)(a)(i)(A) requires the Applicant to give the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 572 and the assessment level to which the Applicant is subject, in relation to the applicant’s English language proficiency for the purposes of each course of study that the Applicant proposes to undertake.
The ordinary English meaning of this subclause is clear. At the time of decision, the Applicant must have provided evidence of his or her English language proficiency. It is the evidence that must be provided at the time of decision. The Applicant is not required to provide that evidence at the time of application.
The reason for this is clear. Where an applicant undergoes an IELTS test, the Test Report Form is not usually available on the date of the test. It is provided later. In this case, for example, the Applicant sat for the test on 13th March 2008 but the Test Report Form is dated 16th April 2008, over a month later. Thus, an applicant who has completed an IELTS test but has not obtained the Test Report Form can still submit an application for a student visa. As long as he or she produces the Test Report Form, i.e. the evidence, before the date of decision, the requirement of Subclause 572.223(2)(a)(i)(A) is met.
The ordinary English meaning of item 5A407(a) is clear. The Applicant must give evidence that he or she will not undertake an ELICOS[25] before commencing his or her principal course and has achieved in an IELTS test that was taken less than 2 years before the date of the application an Overall Band Score of at least 5.5.
[25] English Language Intensive Course for Overseas Students
There is no ambiguity. As Mansfield J said in Ruykys v Minister for Immigration and Multicultural and Indigenous Affairs at [16]:
The word “before” has the ordinary and natural meaning of “in time preceding; previously” or “previously to”.
Contrary to the Applicant’s submissions, an IELTS test sat after the date of application cannot be a test sat “less than 2 years before the date of application”.[26] It is a test for which the Applicant sat after the date of application.
[26] Applicant’s Outline of Submissions at [22]
In order to make it quite clear, if an applicant sits for an IELTS test after the date of application, the applicant has not sat for the test “less than 2 years before the date of application” or any time before the date of application.
The time limit imposed by item 5A407(a) and item 5A407(b) has both a start point and an end point. The start point is a point of time 2 years before the date of application. The end point is the date of application.
Provided that the Applicant sits for the test and obtains the requisite Overall Band Score:
a)at any time after 2 years before the date of application; and
b)at any time before the date of application,
then the Applicant has met the requirement of item 5A407(a) or (b).
In order to meet the requirement of Sub-clause 572.223(2)(a)(i)(A), the Applicant must provide to the Minister evidence of having successfully completed the test by the date of decision.
Once it is understood that item 5A407 requires the IELTS test to be successfully completed less than 2 years before the date of application for the visa and Subclause 572.223(2)(a)(i)(A) requires the evidence of successfully completing the test to be provided before the date of decision, there is no ambiguity or confusion at all.
The logic of the provisions is easily ascertained. Sub-clause 572.223(1) requires that the Minister be satisfied that the Applicant is a genuine applicant for entry and stay as a student because the Applicant meets the requirements of subclause (2).
One of the requirements is that the applicant must have the requisite degree of proficiency in the English language. If the Applicant’s proposition were to be accepted, an applicant could not only apply for a visa without providing evidence of having successfully completed an IELTS test, but could so without having actually sat for such a test. Clearly, the application would be doomed to fail before the delegate.
However, on the Applicant’s construction of item 5A407, an applicant could then apply to the Migration Review Tribunal for a review of that decision and subsequently apply to sit for an IELTS test. This would have the result of making an application for review by the Migration Review Tribunal a necessary part of the application process. An applicant who sits for the IELTS test before applying for the visa and produces evidence of having obtained a satisfactory Overall Band Score will be able to obtain a student visa from the delegate and would not need to apply for review by the Migration Review Tribunal at all.
It is not in the public interest for every application for a student visa to be reviewed by the Migration Review Tribunal. It would only lead to expense and delay.
In this case, the Applicant applied for a student visa on 16th July 2007. This was before he sat for the IELTS test. It would appear that he sat for an IELTS test on 1st October 2007, as this appears on the IELTS Test Report Form he submitted to the Tribunal.[27] Presumably, he did not obtain the necessary Overall Band Score from this test, as the Test Report Form was not submitted to the Tribunal. In any event, that test was not taken until after he had applied for the visa.
[27] Court Book 36
The application for the visa was refused. The Court Book shows two different decisions to the same effect, on 31st August 2007 and 9th October 2008, although it is clear that he applied to the Tribunal on 28th November 2007, and thereby sought review of the earlier decision.
The Applicant had applied for a further IELTS test and sat for that test on 13th March 2008. He was successful and a Test Report Form was issued on 16th April 2008, showing that he had obtained an Overall Band Score of 5.5, which was satisfactory.
The Migration Review Tribunal did not accept that Test Report Form as evidence that the Applicant had achieved an Overall Band Score of at least 5.5 in a test that was taken less than two years before the date of application.
The Tribunal did not fall into error in making this finding. As there is no jurisdictional error, the Tribunal decision is a privative clause decision (s.474(2)) and relief in the nature of certiorari, mandamus and prohibition are not available (s.474(1)).
It follows that the application will be dismissed with costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 19 March 2009
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