Ashraf v Minister for Immigration
[2017] FCCA 1861
•9 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASHRAF & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1861 |
| Catchwords: MIGRATION – Application to review decision of Migration Review Tribunal – whether Tribunal misconstrued and misapplied the law – application dismissed. |
| Legislation: Migration Regulations1994 (Cth), Schedule 2, cl.572.223, Schedule 5A, cl.5A407 |
| Cases cited: Commissioner of Superannuation v Fay Olive Scott (1987) 13 FCR 404; [1987] FCA 79 Kelly v Australian Postal Corporation (2015) 67 ALR 359; [2015] FCA 1064 Palser v Grinling [1948] AC 291 Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 |
| First Applicant: | MUHAMMAD KAMRAN ASHRAF |
| Second Applicant: | UROOSA KAMRAN |
| Third Applicant: | HOOR KAMRAN |
| Fourth Applicant: | MUHAMMAD WALI KAMRAN |
| Fifth Applicant: | MUHAMMAD ARMAN KAMRAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1731 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 9 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2017 |
REPRESENTATION
| Counsel for the Applicants: | Mr Nair (direct brief) |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1731 of 2015
| MUHAMMAD KAMRAN ASHRAF |
First Applicant
| UROOSA KAMRAN |
Second Applicant
| HOOR KAMRAN |
Third Applicant
| MUHAMMAD WALI KAMRAN |
Fourth Applicant
| MUHAMMAD ARMAN KAMRAN |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) dated 28 May 2015 affirming a decision of a delegate of the First Respondent not to grant the Applicants Student (Temporary) (Class TU) visas.
The Applicants, husband and wife and their three children, applied for the Student visas on 29 September 2014. The Second to Fifth Applicants applied as members of the First Applicant’s family unit.
The First Applicant is referred to for convenience as the Applicant. At the time of the visa application he was the holder of a Subclass 573 Student visa, which was to cease on 30 September 2014. He indicated that he had studied an English course from November 2012 to March 2013 and a Diploma of Business course from October 2013 to April 2014 in Australia (although, as later noted by the Tribunal, he did not in fact pursue this course).
In his visa application the Applicant stated that he intended to undertake a Certificate IV in Marketing course from July 2014 to January 2015 and a Diploma of Marketing course from February 2015 to November 2015. He provided confirmations of his enrolment in these courses at Australis Institute of Technology and Education (Australis).
On 1 October 2014 the Department wrote to the Applicant seeking further information including, relevantly, evidence of his English language ability.
On 28 October 2014 the Applicant responded through his migration agent that he had completed 51% of the Certificate IV in Marketing course. In support of this claim the agent provided what was described as a “course progress letter” as evidence of the Applicant’s English. This letter, from Australis, was dated 27 October 2014. It confirmed that the Applicant was enrolled as a full time international student in a Certificate IV in Marketing course which started on 7 July 2014 with a completion date of 4 January 2015 and stated that “He has completed 51% of this course and his attendance had been recorded as satisfactory.” Financial information was also provided to the Department.
On 4 December 2014 the delegate refused to grant the visa on the basis that the Applicant had not provided evidence that demonstrated that he had sufficient funds to cover his total course, living and travel costs. In these circumstances the delegate did not consider whether the Applicant met the applicable English language proficiency requirement.
The Applicants sought review by the Tribunal.
On 24 February 2015 the Tribunal invited the Applicants (through their migration agent) to a hearing on 1 April 2015. In the hearing invitation letter the Tribunal also asked the Applicant to provide all documents on which he intended to rely to establish he met the criteria for the visa, as well as other information, including a copy of his current Certificate of Enrolment (CoE); documents showing he was currently enrolled or had an offer of enrolment in a registered course; documents that showed his past studies, including attendance certificates, academic transcripts and certificates of completion; an explanation for any gaps in his enrolment; documents demonstrating he had sufficient funds as specified; and evidence he met the English language proficiency requirements which, it was pointed out, depended on his particular assessment level and visa subclass.
By email of 24 March 2015 the Applicant’s migration agent provided a copy of the CoE for the Australis Certificate IV in Marketing course from 7 July 2014 to 4 January 2015 and also the CoEs for a Diploma of Marketing course commencing on 9 February 2015 and an Advanced Diploma of Marketing course commencing December 2015, as well as other evidence. Relevantly, as “evidence of English” the agent stated that the Applicant had completed the Certificate IV in Marketing and attached documents “in support of English ability”. An attached certificate from Australis issued on 16 March 2015 stated that the Applicant had fulfilled all the requirements for a Certificate IV in Marketing and a “Statement of Results” for the course recorded the start date of 7 July 2014 and end date of 4 January 2015 and stated that the Applicant was “competent” in 10 listed subjects.
On 30 March 2015 a Tribunal officer wrote to the Applicant’s migration agent asking for “evidence of how Mr Ashraf meets the English language requirements of Schedule 5A”. The officer observed: “The Certificate IV does not seem to meet the requirement as it was not substantially completed whilst he was the holder of a student visa.” The letter also asked for other information, including “better detail” of what and when Mr Ashraf actually studied in Australia “as it seems he had a gap in study from March 2013 to July 2014”.
In a response of 31 March 2015 the Applicant’s migration agent again provided copies of the documents he had provided on 24 March 2015 that he described as “Completion of IV marketing, transcript are attached. As evidence of English ability (sic)”. No further evidence in relation to the Certificate IV course (or any other course) was provided as evidence of the Applicant’s English language proficiency. The agent addressed the gap in study, referring to the Applicant’s earlier enrolment in courses he had not completed (including a Master of Professional Accounting and a Diploma of Business from which he had withdrawn before undertaking the Certificate IV course he had completed). The agent did not otherwise address the issue of whether the Applicant had successfully completed a substantial part of a course while he was the holder of a Student visa.
The Applicants attended a Tribunal hearing on 1 April 2015. A transcript of the hearing is in evidence as an attachment to the Applicant’s affidavit sworn on 12 October 2016.
After the Tribunal hearing the Applicant’s migration agent provided the Tribunal with a copy of an IELTS test conducted on 9 May 2015 in which the Applicant achieved an overall band score of 5.0.
Tribunal Decision
On 28 May 2015 the Tribunal affirmed the decision not to grant the Applicants Student visas.
In its reasons for decision the Tribunal found that as the Applicant was “currently” enrolled in an Advanced Diploma of Marketing, the subclass of Student visa that may be granted was Subclass 572. It stated that the “issue” was whether the Applicant was a “genuine applicant for entry and stay as a student” having regard to all the prescribed matters as required by the criterion in cl.572.223 in Schedule 2 to the Migration Regulations1994 (Cth) (the Regulations).
The Tribunal explained that to meet this criterion, the Applicant must give evidence in accordance with the applicable requirements in Schedule 5A to the Regulations “for the highest assessment level for the Applicant” (having regard to matters such as his nationality and the course of study) including in relation to English language ability. It set out the issue before it as “Does the applicant meet the applicable evidentiary requirements in Schedule 5A?”. It observed that the requirements differed depending on the subclass of visa sought and the Applicant’s assessment level. The Tribunal found that the applicable assessment level was assessment level 3 for which the evidentiary requirements in Part 4 of Schedule 5A to the Regulations (which were extracted in an attachment to the decision) applied.
The Tribunal recorded that the Applicant arrived in Australia in November 2012 as the holder of a Subclass 573 Student visa which was to cease on 30 September 2014; that he had a Bachelor of Commerce and Master of Business Administration from a university in Pakistan; that he had enrolled in a Master of Professional Accounting and an MBA in Australia, but that he did not pursue those studies and instead enrolled in a Diploma in Business, which he also did not pursue.
The Tribunal recorded that the Applicant enrolled in a Certificate IV in Marketing from 7 July 2014 to 4 January 2015 and completed that course. It referred to the Certificate from Australis dated 16 March 2015 and the “transcript” of the Applicant’s studies (the Statement of Results described above).
The Tribunal referred to the fact that the Applicant had failed to satisfy the delegate in relation to financial capacity and stated that this remained an issue, as did all the other requirements of Schedule 5A, including English language proficiency. It also recorded that at the hearing and in correspondence with the Applicant’s adviser, the Applicant had been asked to provide evidence of meeting the applicable evidentiary requirements in Schedule 5A.
The Tribunal found, for reasons it gave, that the Applicant had provided evidence of financial capacity. It went on to consider whether he had provided evidence of meeting the “English language proficiency” requirement. While it did not refer to a specific provision in Part 4 of Schedule 5A, the attached copy of Part 4 of Schedule 5A included, in cl.5A407 in Schedule 5A to the Regulations, the requirement that the Applicant “must give evidence” that one of the specified ways in which English language proficiency could be evidenced “applies”. In particular, cl.5A407(d)(iii) relevantly provided:
(d) the applicant had, less than 2 years before the date of the application:
…
(iii) as the holder of a student visa – successfully completed a substantial part of a course (other than a foundation course) that:
(A) was conducted in English; and
(B) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher …
It is not in dispute that this was the provision considered by the Tribunal when it “noted” that the English language proficiency requirement could not be met by the Certificate IV of Marketing course “as it was not substantially completed whilst the applicant held a student visa. The applicant’s 573 student visa ceased on 30 September 2014 and the course ran from 7 July 2014 to 4 January 2015.”
The Tribunal acknowledged that the Applicant had previously completed a general English ELICOS course, but observed that this was from 26 November 2012 to 22 March 2013 (which, it can be inferred, meant that it would not have met an alternative method of establishing English language proficiency in cl.5A407(b) or (c)). The Tribunal also recorded that the Applicant had said that the last IELTS test he did was in about 2003, that he had initially studied an MPA for two semesters, but failed and then changed courses so he could have a better understanding of the subject matter at a time when his wife was pregnant with their youngest child. The Tribunal noted that the Applicant claimed that he was doing what it regarded as “minor level” courses (despite having an MBA and a Bachelor of Commerce from Pakistan) because there was a lot of difference between studies in Pakistan and Australia, he had difficulty studying and was confused, he had changed his mind about courses and that he hoped eventually to do an MPA when his English improved.
The Tribunal also recorded that the Applicant had requested additional time after the hearing to sit an IELTS exam and provide evidence of the result. The Tribunal granted additional time, but pointed out to the Applicant that he needed, as a minimum, to obtain an overall band score of 5.5 (see cl.5A407(e) in Schedule 5A to the Regulations as it then was).
The Tribunal considered the IELTS result dated 21 May 2015 for a test on 9 May 2015 but found that as the Applicant had received an overall band score of 5.0 this did not meet the minimum English requirement.
The Tribunal concluded on the basis of these matters that the Applicant had “not given evidence in accordance with the applicable Schedule 5A requirements” and therefore that he did not satisfy the criterion to that effect in cl.572.223(2)(a) in Schedule 2 to the Regulations. The Tribunal affirmed the delegate’s decision.
This Application
The Applicants sought review by application filed on 24 June 2015. There is one ground in the application. It is as follows:
The Tribunal misconstrued and misapplied the law in regard to the English language requirement when it said “that it was noted by the Tribunal that this could not be met by the Certificate IV of Marketing studies as it was not substantially completed while the applicant held a student visa”.
It was accepted that the Applicant was required to meet cl.572.223(2)(a) in Schedule 2 to the Regulations which required him to give evidence in accordance with the requirements mentioned in Schedule 5A for the highest applicable assessment level; that the highest assessment level for the Applicant was assessment level 3; and that the evidentiary requirements set out in Part 4 of Schedule 5A were applicable.
This ground was said to relate to the Tribunal findings relevant to whether the Applicant met the requirement that he “must give evidence” that one of the paragraphs in cl.5A407 (which is headed “English language proficiency”) applies (in particular paragraph (d)(iii) set out at [21] above).
Counsel for the Applicant referred to the fact that the Applicant relied on his Certificate IV in Marketing studies course which ran from 7 July 2014 to 4 January 2015 to meet this English language proficiency requirement. It was pointed out that there was evidence before the Tribunal that the Applicant had achieved competency in all subjects in this course and that he had completed the course.
The Applicant contended that in paragraph 18 of its reasons the Tribunal had misconstrued and misapplied the term “substantial” in the phrase “successfully completed a substantial part of a course” in cl.5A407(d)(iii) in Schedule 5A. Paragraph 18 is as follows:
18. In relation to the English language proficiency requirement it was noted by the Tribunal that this could not be met by the Certificate IV of Marketing studies as it was not substantially completed whilst the applicant held a student visa. The applicant’s 573 student visa ceased on 30 September 2014 and the course ran from 7 July 2014 to 4 January 2015. The applicant has completed a General English ELICOS course; however this was from 26 November 2012 to 22 March 2013. The last IELTS he did he said was in about 2003. The applicant said he had initially studied an MPA for 2 semesters but failed, and he then changed course so he could have a “better understanding” of the subject matter. His wife was pregnant at the time with their youngest child who was born in Australia.
The Applicant submitted that the reason for the Tribunal’s conclusion that the English language proficiency requirement could not be met by the Certificate IV of Marketing studies was the fact that the Applicant’s Subclass 573 Student visa ceased on 30 September 2014 and the course ran from 7 July 2014 to 4 January 2015. It was submitted that in proceeding in this manner the Tribunal had interpreted the requirement in cl.5A407(d)(iii) of a “substantial” part of the course on the purely mathematical basis that the Applicant must have completed at least 50% of the relevant course in the period from 7 July 2014 to 30 September 2014 and that there was no other way to read the Tribunal reasons.
It was contended that the fact that such an approach was taken by the Tribunal in its reasons was confirmed by the email it had sent to the Applicant on 30 March 2015 in which the Tribunal had indicated that the Certificate IV “does not seem to meet the requirement as it was not substantially completed whilst [the Applicant] was the holder of a student visa”.
Reliance was also placed on the fact that at the Tribunal hearing the Tribunal had explained to the Applicant that in response to an email about his English language capacity his adviser “has just repeated to me that you’ve got a Certificate IV” (transcript p.5). The Tribunal stated “That’s not enough”. After a discussion of an IELTS test completed in 2003 in Pakistan (which the Tribunal explained was “too old”) the Tribunal also put to the Applicant “… your adviser is not assisting you as he should be. You need to show – and I’ve sent emails to him telling him that the certificate 4 is not adequate. And that’s because you didn’t - you didn’t substantially complete it whilst you held a student visa. You only – you had only done a couple of months of it whilst you held a student visa, and that’s not enough” (transcript p.6).
I note that the Tribunal went on to put to the Applicant that he had not undertaken studies in Australia that met the requirement for English and that the only way he could, given his current studies, was to do an IELTS test (transcript p.6). The Tribunal also explained to the Applicant that because he was studying at a different level to his original study in Australia he had to meet different (harder) rules (transcript p.7).
The Applicant submitted that it was clear from the Tribunal’s email to the adviser dated 30 March 2015, the transcript of the hearing and the Tribunal’s reasons that the Tribunal construed the phrase “substantial part” in the words “successfully completed a substantial part of a course” in cl.5A407(d)(iii) in Schedule 5A to the Regulations as requiring that the period of time the Applicant spent doing the course before his Student visa ceased must be greater than (or at least equal to) the period of time after that date that he took to complete the course. This was said to indicate that the Tribunal had construed this requirement purely on the mathematical basis that the Applicant must have completed at least 50% of the relevant course (as measured by the time spent) while he held a Student visa (that is in the period from 7 July 2014 to 30 September 2014) in order to satisfy the criterion in cl.5A407(d)(iii).
It was pointed out that the period from 7 July 2014 to 30 September 2014 comprised approximately 47% and the period of 30 September 2014 to 4 January 2015 comprised approximately 53% of the total number of days from 7 July 2014 to 4 January 2015. It was said to be clear that it was because the latter period was longer that the Tribunal found that the Applicant did not satisfy the requirement in cl.5A407(d)(iii).
It was also said to be clear that apart from the period the Applicant had spent studying the Certificate IV course prior to 30 September 2014 relative to the total period of the course, the Tribunal had not taken any other consideration into account in purporting to determine whether or not the Applicant had “successfully completed a substantial part” of the course.
Counsel for the Applicant observed that the Regulations and Schedule 5A thereto did not specify that “substantial” in the phrase “substantial part of a course” could only be met if the completed part comprised 50% or more of the relevant course. It was submitted that neither the plain text nor the legislative context in which the requirement appeared required such an interpretation and that to proceed on the basis that “substantial part” meant 50% or more was to import an extraneous requirement into the legislation. Reliance was placed on the discussion of authority in Maestro & Anor v Minister for Immigration and Border Protection & Anor (2016) 308 FLR 48; [2016] FCCA 1095 at [9]-[12].
It was pointed out that in Palser v Grinling [1948] AC 291 Viscount Simon had considered the meaning of “substantial” in the phrase “substantial proportion of the whole rent” and had stated at 316-317:
It is plain that the phrase requires a comparison with the whole rent, and the whole rent means the entire contractual rent payable by the tenant in return for the occupation of the premises together with all the other covenants of the landlord. “Substantial” in this connexion is not the same as “not unsubstantial,” i.e., just enough to avoid the “de minimis” principle. One of the primary meanings of the word is equivalent to considerable, solid, or big. It is in this sense that we speak of a substantial fortune, a substantial meal, a substantial man, a substantial argument or ground of defence. Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances in each case, the onus being on the landlord. If the judgment of the Court of Appeal in Palser's case were to be understood as fixing percentages as a legal measure, that would be going beyond the powers of the judiciary. To say that everything over 20 per cent of the whole rent should be regarded as a substantial portion of that rent would be to play the part of a legislator: if Parliament thinks fit to amend the statute by fixing percentages, Parliament will do so. Aristotle long ago pointed out that the degree of precision that is attainable depends on the subject matter. There is no reason for the House to differ from the conclusion reached in these two cases that the portion was not substantial, but this conclusion is justified by the view taken on the facts, not by laying down percentages of general application.
Similarly, it was submitted that if Parliament in this case had intended the word “substantial” in cl.5A407(d)(iii) in Schedule 5A to mean more than 50% it would have been a simple matter for Parliament to so provide.
Reference was also made to the remarks of Deane J in Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union & Ors [1979] FCA 85; (1979) 27 ALR 367 at 382 in which his Honour had observed:
The word “substantial” is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase “substantial loss or damage”, it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size. The difficulties and uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v Grinling ([1948] 1 All ER 1 at 11; [1948] AC 291 at 317) where, after holding that, in the context there under consideration, the meaning of the word was equivalent to “considerable, solid or big”, he said: “Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case.…”… In the context of s 45 D(1) of the Act, the word “substantial” is used in a relative sense in that, regardless of whether it means large or weighty on the one hand or real or of substance as distinct from ephemeral or nominal on the other, it would be necessary to know something of the nature and scope of the relevant business before one could say that particular actual or potential loss or damage was substantial. As at present advised, I incline to the view that the phrase, substantial loss or damage, in s 45 D(1) includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal. (emphasis added)
The Applicant submitted that Tillmans was authority for the proposition that a qualitative consideration was necessary in determining whether something was “substantial”, unless the legislation in question clearly provided otherwise.
In addition, it was pointed out that in Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd [1982] FCA 206; (1982) 44 ALR 557 Lockhart J stated, at 563:
The word “substantial” is imprecise and ambiguous. Its meaning must be taken from its context. It can mean considerable or big: Palser v Grinling [1948] AC 291, per Viscount Simon (at p. 317). It can also mean not merely nominal, ephemeral or minimal. Sometimes it is used in a relative sense, and at other times to indicate an absolute size or quantity.
It was acknowledged that in Maestro Judge Smith had observed (at [9]) that “substantial” had a range of meanings and had referred to the fact that in Radio 2UE Lockhart J had found, in considering a statutory provision concerning competition (s.45A Trade Practices Act 1974 (Cth)), that the word “substantial” was used in a “relative sense”.
Further, in Commissioner of Superannuation v Fay Olive Scott (1987) 13 FCR 404; [1987] FCA 79 the Full Court of the Federal Court considered the concept “wholly or substantially dependent” in the definition of “spouse” in the Superannuation Act 1976 (Cth) and found that “substantially” in that context meant “in the main” or “essentially” and accepted that substantial dependence must be more than trivial, minimal or nominal. The Court had referred to the need to interpret the notion of “substantially” in context, rather than in isolation (see Palser v Grinling) and referred with approval to the approach taken by Deane J in Tillmanns Butcheries. Counsel for the Applicant pointed out that such an approach did not involve a mathematical calculation, but rather took account of “all the facts”.
Reliance was also placed on the decision of Judge Smith in Maestro. His Honour considered whether the Tribunal in that case had misunderstood the meaning of “substantial part” in the expression “successfully completed a substantial part of a course” in Schedule 5A to the Regulations. Counsel for the Applicant submitted that insofar as there were references to cl.5A507 in Schedule 5A to the Regulations in the judgment in Maestro, this was clearly an inadvertent or typographical error, as cl.5A407 (not cl.5A507) was applicable because the class of visa in issue was (as in this case) Subclass 572 and not Subclass 573. In any event, it was pointed out that cl.5A507(d)(iii) (extracted in the decision in Maestro) was relevantly in identical terms to cl.5A407(d)(iii). On this basis the decision in Maestro was said to be directly in point.
In Maestro the Tribunal had considered English language proficiency in circumstances where there was evidence of a transcript of the applicant’s academic record in a Certificate IV course. As pointed out in Maestro at [6], the Tribunal had found that:
Cl.5A507(d)(iii) requires the applicant, as the holder of a student visa, to have successfully completed a substantial part of a course (other than a foundation course) that was conducted in English; and was leading to a qualification from the Australian Qualifications Framework (AQF) at the Certificate IV level or higher. The applicant has provided a transcript of his academic record in a TAFE NSW AQF Certificate IV course in Building and Construction. The transcript indicates that the number of course units in which he is assessed “Not yet Competent” exceeds the number of units in which he is assessed “Competent” or higher. The Tribunal considers that since the applicant has not successfully completed at least half the units in his Certificate IV course, he cannot be deemed to have successfully completed a substantial part of the course. The Tribunal is therefore not satisfied that the applicant meets cl.5A507(d)(iii).
The applicant in Maestro submitted that the Tribunal had misunderstood the meaning of “substantial part” of a course in proceeding on the basis that it meant “at least half of the units” in a particular course. As indicated, Judge Smith referred (at [9]-[13]) to the approach taken to the meaning of “substantial” in Palser v Grinling, Tillmanns Butcheries, Radio 2UE and Scott as well as to decisions of the Federal Magistrates Court and continued at [14]-[15]:
In the present context, it is evident that the word substantial requires that a considerable level of completion is required. Although the applicant initially argued that in this case it required a qualitative analysis he correctly moved away from that position. In my view, the evidence and submissions made by a visa applicant may require some qualitative analysis (where, for example, one unit out of 20 carries the bulk of the assessment for a particular course), but there was no such evidence or submission in this case.
Here, the Tribunal stated that, because the applicant had not successfully completed “at least half of the units” in the Certificate IV course, “he cannot be deemed to have successfully completed a substantial part of the course”. At first glance, this reasoning indicates that the Tribunal applied some fixed percentage to the meaning of substantial. If that is what it did, there is no question that it was wrong. As explained in the authorities referred to above, the use of the word substantial does not reflect such rigidity in any context. The only real question is whether that is what the Tribunal meant.
Judge Smith had regard to the need to give a “beneficial construction” to Tribunal decisions while not “rewriting” the reasons, and suggested that “a common sense and realistic approach should be taken to understanding the reasons as a whole to see what the Tribunal was saying and it does not follow that a beneficial construction should or could result in a situation where words are construed as meaning something other than what they, in a plain and common sense way, must be intended to mean” (Maestro at [16]). His Honour was of the view (at [17]) that such an approach did not require that any ambiguity in the Tribunal reasons be resolved in the Tribunal’s favour. Judge Smith concluded (at [18]) that the Tribunal in Maestro “did apply a mathematical approach to the issue” and so fell into error. His Honour was of the view that the “strong sense” of the passage in the Tribunal decision cited at [48] above, taken as a whole, was that the Tribunal had proceeded on the basis that the applicant had to have successfully completed at least 50% of the relevant course in order to satisfy the criterion. Judge Smith found that the Tribunal had failed to address the question posed by cl.572.223(2)(a) in Schedule 2 to the Regulations and the applicable Schedule 5A requirement and so constructively failed to exercise its jurisdiction (Maestro at [18]).
The Applicant submitted that, similarly, in this case the only conclusion that could be drawn from the Tribunal’s reasons (and the transcript and email) was that the Tribunal had construed the phrase “substantial part” in cl.5A407(d)(iii) as requiring that the period of time that the Applicant spent doing the course in question before his Student visa expired must be greater than, or at least equal to, the period of time after that date that the Applicant took to complete the course. As in Maestro, the Tribunal was said to have applied a mathematical approach to the meaning of “substantial” and to have proceeded on the basis that to meet this requirement the Applicant must have completed at least 50% of the relevant course, as measured by the time spent in the period from the start of the course to the date his Subclass 573 Student visa expired.
On this basis the Applicant contended that the Tribunal had misconstrued and misapplied a criterion for the visa in issue in a manner that amounted to jurisdictional error in the sense considered in Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 at [59] per French CJ (and also see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]). The Tribunal was said to have misconstrued and misapplied the applicable criterion and to have adopted an impermissible and limited mathematical approach of requiring 50% or more so that its purported determination was vitiated by jurisdictional error.
In oral submissions it was explained that the Applicant’s primary contention was that the Tribunal had erred in taking the approach that the Applicant had to have completed at least 50% of the course. However, it was also contended that the Tribunal had erred because it had adopted a purely mathematical assessment.
The Applicant acknowledged that there was some suggestion in the authorities that if a Tribunal proceeded on the basis that an applicant had completed a substantial part of the course if he or she had completed 50% or more that may not in itself be an error, but suggested that where an applicant had completed less than 50% of a course it would be an error for the Tribunal to limit itself in that context to a purely mathematical approach (see Maestro at [14]). It was the Applicant’s contention that a “qualitative assessment” would be necessary in such circumstances.
The First Respondent submitted that the Applicant’s ground was unsustainable.
The Tribunal’s finding at paragraph 18 (set out at [31] above) was contrasted with the finding by the Tribunal in Maestro which specifically referred to the fact that the applicant had not successfully completed “at least half the units” in his Certificate IV course. It was pointed out that it was that approach which Judge Smith found indicated that the Tribunal in Maestro had applied “some fixed percentage” to the meaning of substantial which amounted to an error on the basis that the word “substantial” did not reflect such rigidity in any context.
It was pointed out that as discussed in Scott and Seneviratne v Minister for Immigration and Citizenship & Anor [2009] FMCA 907 (at [48]) the notion “substantial” had to be read in context. Reliance was placed on the fact that, in light of the cited authorities, Judge Smith had indicated in Maestro that the word “substantial”, in the context of a provision such as cl.5A407(d)(iii) in Schedule 5A to the Regulations required “a considerable level of completion” (at [14]) and had suggested that this did not entail a qualitative analysis unless such analysis was required by the evidence and submissions made by an applicant. The First Respondent also observed that in Maestro Judge Smith had pointed out that the Court should not scrutinise the Tribunal’s reasons in search of error.
The First Respondent also referred to the fact that in Mia v Minister for Immigration and Citizenship [2010] FCA 1312, Reeves J was of the view that at first instance (see Md Mahasin Mia v Minister for Immigration and Citizenship & Anor [2010] FMCA 630) Federal Magistrate Lloyd-Jones had correctly identified that the determination of what might or might not constitute “a substantial part of the course” in a provision in Schedule 5A to the Regulations in the same terms as cl.5A407(d)(iii) was a matter of fact that the Court could not lawfully interfere with and that it must be left to the Tribunal as the judge of fact applying the meaning of the word “substantial” to decide as best it could according to the circumstances of the case.
Insofar as any issue arose as to whether the Tribunal may have applied any departmental policy to the effect that the Applicant must have completed at least 51% of a course (having regard to a reference to evidence of successful completion of 51% of a course in a departmental request for information dated 1 October 2014), the First Respondent acknowledged that if the Tribunal had applied departmental policy as law this would be an error if the policy was not consistent with the Regulations. However it was observed that in Seneviratne Federal Magistrate Scarlett had pointed out that in circumstances where (as here) there was no reference to PAM3 or departmental guidelines in the Tribunal decision, a claim that the Tribunal had followed a test in PAM3 that was contrary to the Regulations invited the Court to speculate as to the Tribunal’s thought processes. It was also noted that there was no reference to guidelines or to such an approach in the exchange of written communications between the Tribunal and the Applicant’s migration agent or in the hearing and submitted that the Tribunal had not taken such an approach.
Resolution
I have borne in mind that, as pointed out in Mia, the Court should be very slow to interfere in a Tribunal finding of this nature, as such matters should be left to the satisfaction of the Tribunal as the judge of fact, particularly given the meaning of the word “substantial” as considered in the cases cited and the nature of the assessment that it entails. Nonetheless, if the Tribunal had misconstrued and misapplied the law as contended for by the Applicants it would have fallen into error.
I agree with the approach to the interpretation of “substantial” in cl.5A407(d)(iii) taken in Maestro. However, as the First Respondent submitted, the Tribunal in Maestro was found to have applied a “fixed percentage” approach on the basis of a rigid rule that the applicant had to have successfully completed at least half the units in the course while the holder of a Student visa to satisfy the “substantial” requirement in cl.5A407(d)(iii) (see Maestro at [15]).
Maestro does not stand for the proposition that the Tribunal cannot take into account the duration of an Applicant’s relevant attendance at a course having regard to the full duration of a course. Further, as Judge Smith observed at [14], in a context such as cl.5A407 the notion of “substantial” requires a “considerable level of completion”.
Considered in context, Judge Smith’s reference in Maestro to a “mathematical” approach related to a rigid mathematical approach based on pre-set, specified amounts or “fixed percentage[s]” as had been expressly adopted by the Tribunal in Maestro. While such a rigid approach is impermissible, this does not mean that it was impermissible for the Tribunal in this case to form the view that the limited evidence of enrolment for less than 3 months in a course of 6 months’ duration was not evidence that satisfied it that in that time the Applicant had successfully completed a substantial part of the course.
As pointed out in Radio 2UE, the word “substantial” is by nature an imprecise and ambiguous term. What is in issue is the meaning of the word in the present context, not in some other statutory context. The view of Judge Smith that “substantial” in this context requires a “considerable level of completion” reflects the fact that the provision in question allows a person to show, otherwise than through a successfully completed language test, that he or she has the necessary English language proficiency to undertake the level of study for which a Subclass 572 Student visa is appropriate. In such a context, any view that “substantial” meant merely “more than trivial” would defeat the purpose of the provision. It is also relevant to bear in mind that the criterion in question refers to a person having “successfully completed” a substantial part of a course as the holder of a Student visa. This suggests that something more than mere attendance is in issue.
The Tribunal had to determine whether the evidence given by the Applicant satisfied it that he had English language proficiency as provided for in cl.5A407. It considered the evidence in relation to various ways in which he might have met cl.5A407. Insofar as he relied on cl.5A407(d)(iii) the Applicant had given very little evidence to the Tribunal. This was not a case in which the Applicant had provided evidence of units completed, marks obtained or actual attendance while he held a Student visa. As in Maestro, the present case was not one in which the Applicant advanced any claims or evidence that required a qualitative analysis. The Certificate IV “transcript” was merely a statement of final results. It did not suggest that by 30 September 2014 the Applicant had completed any more significant part of the course than his enrolment in the course as at that point suggested. The evidence of attendance provided was as at 27 October 2014.
In the circumstances of this case, on the limited evidence before it and in the absence of any claims or evidence rendering such conclusion illogical, it was plainly open to the Tribunal to determine the issue of whether the Applicant had successfully completed a “substantial” part of the course as the holder of a Student visa by reference to the period of time for which the Applicant attended the course. The fact that it proceeded in this manner does not establish that it misconstrued or misapplied the law in the manner contended for by the Applicant.
The Tribunal referred to the fact that the Applicant must give evidence in accordance with the applicable requirements in Schedule 5A to the Regulations, including in relation to his English language ability. It framed the issue before it (correctly) in terms of whether the Applicant met the applicable evidentiary requirements in Schedule 5A. It stated that the Applicant and his adviser had been asked to provide evidence of meeting the applicable Schedule 5A requirements and referred to the fact that a certificate dated 16 March 2015 and transcript of studies were provided.
It was in this context that the Tribunal noted the period of time during which the Certificate IV studies were undertaken and the date on which the Applicant’s Student visa had ceased. It was not satisfied that the Applicant had given evidence that he successfully completed a substantial part of his Certificate IV studies while holding a Student visa. While the Tribunal referred to “substantially completed” in paragraph 18 of its reasons it did so in circumstances where there was no evidence before it as to units completed or even actual attendance in the course in the period up to 30 September 2014.
The Tribunal findings do not reveal the application of any rigid mathematical rule such as that applied in Maestro. The Tribunal did not expressly refer to any such rule or percentage (or to any departmental policy) or give any indication that “substantial” completion required that the Applicant had completed 50% or some other specified portion of the course. I bear in mind that, as Judge Smith stated in Maestro at [16]:
It is well established that a Court in judicial review proceedings should not comb through the reasons of an administrative decision maker in a detailed search for error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272. That is what is often called giving a ‘beneficial construction’ to those reasons. However, the approach does not go so far as to require or even enable the rewriting of the reasons for a particular decision. Rather, a common sense and realistic approach should be taken to understanding the reasons as a whole to see what the Tribunal was saying and it does not follow that a beneficial construction should or could result in a situation where words are construed as meaning something other than what they, in a plain and common sense way, must be intended to mean: AHX15 v Minister for Immigration & Border Protection [2015] FCA 1183 at [24] (McKerracher J) referring to Fang Wang v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 1044 at [14] – [15] (Allsop J as his Honour then was).
The interpretation of the Tribunal’s findings contended for by the Applicant rests on a reading of the Tribunal’s decision that is unsupported by the plain words of the decision record.
Further, I do not accept that the transcript of the hearing supports the Applicant’s suggested construction of the Tribunal’s reasons. It is well-established that the Court must exercise considerable caution before having regard to a transcript of a Tribunal hearing in order to interpret or construe the reasons for decision of a Tribunal (see WZAQU v Minister for Immigration and Citizenship (2013) 233 FCR 534; [2013] FCA 327 at [30]; Kelly v Australian Postal Corporation (2015) 67 ALR 359; [2015] FCA 1064 at [52]-[53]; and Minister for Immigration and Border Protection v MZAIV [2016] FCA 251 at [33]-[34]). The same may be said in relation to the email.
The email followed the written request in the hearing invitation letter for evidence that the Applicant met the English language proficiency requirement and was sent in response to provision of the Certificate dated 16 March 2015 and statement of final results for the course ending on 4 January 2015. In that context the email was doing no more than alerting the Applicant, through his adviser, to the fact that the Certificate IV “does not seem to meet the requirement as it was not substantially completed whilst he was the holder of a student visa” (emphasis added). Such a preliminary view should not be taken to be indicative of the basis for the Tribunal’s reasoning in its subsequent reasons for decision.
Similarly, the manner in which the Tribunal expressed itself at the hearing in putting to the Applicant for comment the view that the Applicant’s Certificate IV studies would not meet cl.5A407 does not support the Applicant’s contentions. The Tribunal was explaining to the Applicant the need to show that he had substantially completed a course whilst he had a Student visa. It indicated a view that this had not occurred. The manner in which the Tribunal member expressed himself, including the reference to the fact that the Applicant had only done a couple of months in that time and that that was “not enough” may be seen as “loose and colloquial remarks” (see MZAIV at [35]) during a hearing when the Tribunal was making “preliminary comments and observations” (see Kelly at [51]) and raising concerns with the Applicant. Even if such remarks were indicative of preliminary thoughts, they are not an appropriate basis on which to determine whether in its reasons for decision the Tribunal misconstrued and misapplied the law in relation to the concept of having successfully completed “a substantial part” of a course in cl.5A407(d)(iii) (and see WZAQU at [30]).
Neither the email nor the passage from the transcript pointed to by the Applicant demonstrates or supports the conclusion that in its reasons the Tribunal applied a fixed percentage or rigid mathematical assessment in determining whether the Applicant had given evidence of having successfully completed a “substantial” part of the relevant course as the holder of a Student visa (that is by 30 September 2014).
It was open to the Tribunal to have regard to the fact that the course the Applicant relied on to establish English language proficiency ran from 7 July 2014 until 4 January 2015 whereas he only held a Student visa until 30 September 2014. In the particular circumstances of this case, it was open to the Tribunal not to be satisfied on the limited evidence before it (which the Tribunal brought to the Applicant’s attention at the hearing) that the duration of the Applicant’s enrolment and study in the Certificate IV course while the holder of a Student visa constituted evidence of successful completion of a substantial part of the course. This approach has not been shown to have involved the application of a requirement that the Applicant had to have completed at least 50% of the course or a purely mathematical assessment.
As indicated, the Tribunal’s reasons reflected circumstances in which there was no direct evidence of any “successful” completion of any part of a course while the Applicant held a Student visa. There was no evidence (or suggestion in the Tribunal hearing) that any of the subjects in the Certificate IV course were completed in the period before the Applicant’s Student visa expired. The only evidence before the Tribunal was the Applicant’s enrolment and (inferentially) adequate attendance up to 30 September 2014 (as the Applicant’s attendance was “satisfactory” as at 27 October 2014, the date on which Australis certified he had “completed 51% of this course”) and the fact that he ultimately, by 4 January 2015, achieved competency in 10 units and fulfilled all the requirements for the certificate. The certificate from Australis produced for the benefit of the delegate, which referred to completion of 51% of the course and satisfactory attendance, was dated 27 October 2014. This was not a case in which there was evidence before the Tribunal requiring a qualitative assessment.
It was for the Applicant to put forward evidence that he met the English language proficiency requirement. The Applicant was represented by an agent who had been put on notice by a Tribunal officer that the evidence of the Certificate IV course did not “seem” to meet the English language proficiency requirement. The Applicant was specifically asked to provide evidence that he met the English language proficiency requirement, in particular, evidence that he had successfully completed a substantial part of the Certificate IV course whilst the holder of a Student visa.
As the First Respondent submitted, it is apparent that the Tribunal was of the view that the evidence from the Applicant in this respect was so deficient that it did not establish successful completion of a substantial part of the Certificate IV course by 30 September 2014. In these circumstances it was not necessary for the Tribunal to provide more detailed reasons for why it was not satisfied that the Applicant had given evidence that he had, less than 2 years before the date of the visa application, as the holder of a Student visa, successfully completed a substantial part of a course that met the cl.5A407(d)(iii) requirements. I also note that the Tribunal went on to consider whether the Applicant had given evidence that met any of the other provisions in cl.5A407.
I am not persuaded that the Tribunal misconstrued and misapplied the law in regard to the English language proficiency requirement in cl.5A407(d)(iii) in Schedule 5A to the Regulations either by proceeding on the basis that the Applicant had to have completed 50% of the course to meet this requirement or by applying a fixed percentage or rigid mathematical test in relation to the meaning of “substantial” in considering whether the Applicant had given evidence that as the holder of a Student visa he had “successfully completed a substantial part of a course” conducted in English. This ground is not made out.
As the ground relied on by the Applicant has not been established the application should be dismissed.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 9 August 2017
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