Ban v Minister for Immigration
[2006] FMCA 1693
•17 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BAN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1693 |
| MIGRATION – Judicial Review – child migrant visa – whether jurisdictional error – meaning of “reasonable time” and “completing”. |
| Migration Act 1958, ss.477, 359A Family Law Act 1975 |
| Sok v Minister for Immigration [2005] FMCA 190 Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473 |
| Applicant: | CIPRIAN BAN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 525 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 31 October 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 17 November 2006 |
REPRESENTATION
| Applicant: | No appearance (Mr Ronald Cain, husband of the Applicant’s sponsor appeared) |
| Counsel for the First Respondent: | Ms K. Walker |
| Solicitors for the First Respondent: | Phillips Fox |
ORDERS
The time for filing the application be extended to 20 April 2006.
The application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 525 of 2006
| CIPRIAN BAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application, judicial review is sought of a decision of the Migration Review Tribunal (the Tribunal) which had affirmed the decision of a delegate of the First Respondent to refuse to grant a child (migrant) (class AH) visa to the Applicant (the child visa).
The Tribunal decision was handed down on 15 March 2006 and the visa Applicant has indicated in his application to the court that he was notified of the Tribunal decision on the same day. The application was filed in this court on 20 April 2006. Accordingly, it is argued by the First Respondent that the Applicant requires an extension of time pursuant to s.477 of the Migration Act 1958 (the Migration Act).
Any application for an extension of time is opposed. Given the short duration of time whereby the extension is required and noting that there is at least an arguable case, I am satisfied that it is appropriate in the exercise of the court’s discretion to extend the time for the filing of the application to 20 April 2006.
The Applicant is a citizen of Romania born on 8 March 1979. On 9 January 2004, he applied for the child visa which was lodged at the Australian Embassy in Belgrade. The Applicant was sponsored by his mother, Mrs Elena Cain, who is an Australian permanent resident (the sponsor).
At the hearing before this court it was noted that Mr Ronald Cain, the husband of the sponsor, described himself in various documents as "Authorised Representative of Elena Cain (nee Ban)" and I note in Tribunal documents that he even provided a letterhead with that description.
The court was not made aware of any documents whereby the sponsor had authorised her husband to act for and on her behalf, however I note that in the Court Book the Applicant appears to have signed a document entitled, "Authorisation of a person to act and receive communication," and the details of "Authorised person" on that form refer to Mr Ronald Cain as the authorised person (Court Book p.21).
It is also noted that Mr Cain appeared before the Tribunal and gave evidence and that no objection has been taken by the First Respondent at any stage of the proceedings before the Tribunal. Further, no objection is taken by the First Respondent to Mr Cain appearing before this court, albeit purporting to be the authorised representative of the sponsor rather than the authorised person for the Applicant.
Given that there was no objection taken, and having regard to the history of the proceedings and the fact that Mr Cain is the authorised person to act for and on behalf of the Applicant, I was prepared to rule, albeit somewhat reluctantly, that Mr Cain should be permitted to address the court. I permitted Mr Cain to address the court noting that he remains the authorised person for the Applicant and having received his assurance that his wife, the sponsor, was not well enough to attend court. I was prepared to receive both written and oral submissions from Mr Cain which I take to be made for and on behalf of the visa Applicant and supported by the sponsor. I regard the circumstances as exceptional given the claimed illness of the sponsor and having regard to the nature of the application, combined with the fact that Mr Cain, at the very least as indicated, appears to be the authorised person as stated earlier in this judgment. I do not accept his own description of himself as being “authorised representative of Elena Cain (nee Ban)”.
No authority has been produced to the court which would satisfy me that that description is in any way accurate or appropriate. It should also be noted that at the commencement of proceedings the court suggested that Mr Cain may wish to consider obtaining pro bono assistance and he declined.
It is noted that the visa Applicant remains offshore.
The Child Visa
The child (migrant) (class AH) visa has three subclasses. The Tribunal noted in its findings that the visa Applicant is the review Applicant's (or sponsor's) natural child and correctly notes that the only subclass in respect of which any claims were advanced is subclass 101.
The Tribunal then accurately sets out the requirements pursuant to the Migration Regulations 1994 (the Regulations) for the grant of a subclass 101 visa in the following extract from the Tribunal's decision:
“30To be entitled to the grant of a subclass 101 visa the visa applicant must satisfy all of the necessary requirements at the time of application and at the time of decision, including:
101.211 (1) The applicant:
(a) is a dependent child of:
(i) an Australian citizen; or
(ii) the holder of a permanent visa; or
(iii) an eligible New Zealand citizen; and
(b) subject to subclause (2), has not turned 25; and
(c) either:
(i) is:-
(A) the natural child; or
(B)the step-child within the meaning of paragraph (b) of the definition of step-child;
of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph (a); or
(ii)was adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen.
(2)Paragraph (1) (b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b) (ii) of the definition of “dependent child”.
101.213 (1) If the applicant has turned 18:
(a) the applicant:
(i) is not engaged to be married; and
(ii) does not have a spouse; and
(iii) has never had a spouse; and
(b) the applicant is not engaged in full-time work and
(c) subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been, undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
(2)Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b) (ii) of the definition of “dependent child”.
1.01.22 Criteria to be satisfied at time of decision
101.221(1) In the case of an applicant who had not turned 18 at the time of application, the applicant:
(a) continues to satis& the criterion in clause 101.211; or
(b) does not continue to satisfy that criterion only because the applicant has turned 18.
(2)In the case of an applicant who had turned 18 at the time of application:
(a) the applicant:
(i)continues to satis the criterion in clause 101.211; or
(ii)does not continue to satisfy that criterion only because the applicant has turned 25; and
(b) the applicant continues to satisfy the criterion in clause 101.213.
31.Dependant child is defined in regulation 1.03:
dependent child
means the natural or adopted child, or step-child, of a person (other than a child who has a spouse or is engaged to be married), being a child who:
(a) has not turned 18; or
(b) has turned l8 and:
(i) is dependent on that person; or
(ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.
32. Dependency is defined in regulation 1.05A:
1.05A (1) Subject to subregulation (2), a person (the “first person”) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.”
It is relevant to note in the present case that the two issues which arise from the necessary requirements set out above are those found in cl.101.211(1)(a) namely, whether the Applicant is a dependent child of an Australian citizen and the issue arising under cl.101.213(1)(c); namely, if the Applicant has turned 18, that the Applicant has, since turning 18 or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
The Regulations do not define what is meant by "a reasonable time" and nor do the Regulations define what is meant by "completing" the equivalent of year 12 in the Australian school system.
The Applicant's claim
The visa Applicant set out his claims in the application and supporting documents which were lodged with the First Respondent's Department on 23 December 2003 and affirmed in an interview with the delegate of the First Respondent on 25 February 2004.
At the time of the application, the visa Applicant claimed to be a dependent child of the sponsor. The visa Applicant was 24 years of age at the time of the application and claimed he had never been married and was not working full-time. The sponsor, in a letter dated 15 December 2003 (where I note she refers to herself as "Helen Cain") (Court Book pp.23-35), sets out in significant detail relevant background and information in support of the child visa application.
I note and accept that a relevant summary of the Applicant's claims appears in the First Respondent's outline of submission as follows:
“9. In relation to study, the applicant claimed:
9.1He left school after Year 12 in 1998, but was not awarded his high school leaving certificate until July 2000, when he passed the baccalaureate examinations of June/July that year.
Consequently, the applicant argued that he completed his year 12 studies until July 2000.
9.2He did not attend any formal classes between 1998 and the examinations in June/July 2000, but was engaged in private home studies to prepare for the exams.
9.3The sponsor told the Tribunal that during the transition to a market economy, the Romanian education system was infected with corruption and he was given a failing grade in geography in 1998 due to his inability to bribe the teachers. He was disheartened and did not re-sit the exams until 2000.
9.4The applicant told the delegate in interview that he failed a subject in his high school diploma in 1998. He went on unemployment benefits and had limited work then decided to prepare himself for university after failing to find work to support himself. He told the delegate that he also had to sit for an additional subject to be admitted to university because Romanian education law changed between 1998 and 2000.
9.5After he passed his exams, he commenced a five year agricultural environmental engineering course at Banats University in Romania on 1 October 2000.”
It is also relevant to note the handwritten record of interview between a delegate of the First Respondent and the visa Applicant (Court Book pp.169-179) where, relevantly, the following appears:
“ * When did you finish high school?
1988.
* When did you start this course?
2000. I made a small break b/w high school and university b/c I wanted to prepare myself I wanted to learn better.
* When did you graduate from high school?
1988.
* What did you do in the period b/w 1998 and 2000?
I worked at a firm called Osmo-Trade from Aug 1999 to Dec 1999. I worked 3 hours a day and I was paid 9AUD a month.”
It is common ground that an error appears in that record and that the reference to "1988" should be "1998". The record of interview continues with the further relevant extracts:
“* You said you graduated high school in 1998 but your Diploma states 2000. Is there any explanation for this?
I finished school in 1998 but I had to do my high school diploma exam and I did that in 2000.
* Why didn't you do that in 1998?
I failed. I tried but failed. Then they changed the law so I had to learn new things as well.
*So how were you able to pass it 2 years later without any help from anyone else?
I had books and I was willing.”
The Tribunal decision
The Tribunal in its decision recites under the heading "Evidence" details concerning the claim. It refers to the interview with the delegate of the First Respondent and notes that the delegate received additional information on 26 February 2004 from the overseas post, and correctly notes that that information advised that:
“… students in Romania can sit final high school examinations twice in June/July and August/September free of charge, and can re-sit the exams again as many times as required for a fee.”
The Tribunal noted that on 23 July 2004, a delegate of the First Respondent refused to grant the child visa to the visa Applicant on the basis that he was:
“… not the review Applicant's dependent child at the time of application and did not commence university studies within a reasonable period of completing secondary school.”
The Tribunal conducted a hearing on 22 November 2005 and it notes that the review Applicant and her husband, Mr Ronald Cain, gave evidence. The Tribunal further notes:
“The review applicant did not request that evidence be taken from the visa applicant by telephone from Romania.”
In its decision, the Tribunal then recites in some detail the statements of the sponsor, who it refers to as "the review applicant". The following relevantly appears:
“17.The review applicant stated that the visa applicant finished high school in 1998, but passed only one of the two major examinations at that time. She stated that Romania was turbulent at that time because it was undergoing a transition from communism to a market economy and corruption was rife, especially in education. She stated that the visa applicant was very upset at not passing geography because he was one of the best students in that subject. She sated that the visa applicant was disappointed at not being granted his baccalaureate diploma, which would have allowed him to enrol at university. She stated many other students also failed because the exam was very difficult and they were unable to afford bribes for the teachers. The review applicant stated that a new education system was introduced in which students passed according to merit and by 1999/2000 teachers were disciplined for taking bribes.
18.The review applicant stated that the visa applicant did not re-enrol in year 12 after failing in 1998 because he passed all but one subject. She stated that the visa applicant studied at home for his baccalaureate diploma, for which he was required to pass nine subjects. The review applicant stated that the visa applicant waited two years before attempting the examinations again because he was discouraged. The review applicant stated that the visa applicant also attended a computer course between 1998 and 2000. She stated that he originally planned to study medicine but changed his mind in 2000.”
The sponsor otherwise referred to financial circumstances and then relevantly refers to further information provided by Mr Cain as follows:
“24.The review applicant’s husband stated that the visa applicant studied at home and at the library between 1998 and 2000. He stated that the visa applicant also studied a computer course in 1999 and 2000, as can be seen from the certificate dated 14 November 2001. The review applicant’s husband stated that the visa applicant was unable to enrol in any other course after completing year 12 without a diploma, which he passed in 2000. The review applicant’s husband stated that the review applicant sent the visa applicant a large amount of money in a lump sum because there had been a breakdown in family relationships and it was difficult to send money through family. He stated that they have not sent more money since because most of the funds are still in the visa applicant’s account.”
It is relevant to note that on 25 November 2005, the Tribunal records that it wrote to the sponsor pursuant to s.359A of the Migration Act, inviting her to comment on:
“… particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that it is under review.”
In its decision, the Tribunal refers to the request in the following terms:
“On 25 November 2005 the Tribunal wrote to the review applicant pursuant to section 359A of the Act, inviting her to comment on information including inconsistencies between information provided by the visa applicant at his interview with the Department on 25 February 2004 and in his visitor visa application in December 1999, inconsistencies between information provided by the visa applicant in relation to his financial dependence on you and information obtained by the overseas post and inconsistencies between the review applicant’s evidence at the Tribunal hearing and information obtained from the overseas post. The review applicant was also invited under section 359 of the Act to provide documentary evidence including:
· Reasons why the visa applicant was unable to repeat his year 12 studies after 1998, although he had not passed sufficient subjects to qualify him for the high school baccalaureate examinations;
· Reasons why the visa applicant was unable to re-sit the high school baccalaureate examinations earlier than June 2000;
· Evidence of the visa applicant’s current enrolment and attendance in a full time course of study;
· The visa applicant’s bank statements for 2005;
· Evidence not already provided to the Department or the Tribunal that the visa applicant has remained financially dependent on the review applicant from December 2002 until the present.”
The Tribunal notes that it granted an extension of time to respond to its invitation and that on 6 January 2006 it received a submission from the Applicant. Relevantly, the Tribunal then refers to the process in the following terms:
“27.On 6 January 2006 the Tribunal received a submission from the review applicant’s husband, together with a certificate dated 17 June 2005 indicating that the visa applicant graduated with a diploma from Banat’s University, a certificate dated 2 December 2005 from Banat’s University indicating that the visa applicant was enrolled in the first year of a Master of Biologic Agriculture course and the visa applicant’s bank statements. A statement for an account in Romanian currency indicated that there were a series of deposits and withdrawals between February 2004 and June 2004. A statement of account in Euros indicated that the visa applicant received €11,000 on 16 June in an unidentified year and held a balance of €4,700 as at
29 November 2005.
28.The review applicant’s husband submitted that the visa applicant did not complete his secondary education until he passed the diploma exam in July 2000, after heaving studied at home between July 1998 and June 2000, and commenced university studies in October 2000, which is less than six months after completing the equivalent of year 12 in Australia. The review applicant’s husband stated that the visa applicant failed one subject, geography, in year 12 in 1998 although he had been a top student throughout the year. The review applicant’s husband stated that the visa applicant was discouraged after failing his first attempt at the high school diploma exams in 1998, as did 80% of other Romanian students. He submitted that corruption was rife in the country at that time, and the visa applicant came from a working family with no extra money. The review applicant’s husband stated that the Romanian authorities must have approved the visa applicant’s home study between 1998 and 2000 because they permitted him to sit the diploma examinations in 2000. The review applicant’s husband refuted the Department’s assessment of the visa applicant’s living expenses.”
After reciting the relevant Regulations, the Tribunal then states that its task was to:
“… first determine whether or not the visa Applicant satisfies clause 101.213. If the visa applicant satisfies clause 101.213, an assessment of his dependence at the time of application and the time of decision will also be necessary.”
The Tribunal then refers to relevant policy and in particular deals significantly with the concept of "Reasonable period". It notes that that term is not defined in the Regulations and notes further that:
“Officers should consider the policy background; that the purpose of the visa is to provide for children who are genuinely still dependent on their parent/s.”
The Tribunal then notes examples of breaks of more than six months from studies which might be considered reasonable.
The Tribunal notes that the visa Applicant should satisfy cl.101.213(1)(c) of the Regulations; namely, that the visa Applicant has:
“… since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.”
The Tribunal then relevantly states the following:
“37.There is no dispute that the visa applicant completed his year 12 studies in 1998, but was not awarded his high school leaving certificate until July 2000 after passing baccalaureate examinations held in June/July of that year. There is not dispute that the visa applicant did not attend any formal classes relating to his high school leaving/baccalaureate diploma between 1998 and the examinations in June/July 2000. The review applicant stated that the visa applicant was not allowed to re-enrol in year 12 after failing to qualify for the diploma in 1998 because he had passed all but one of his year 12 projects.
38.The review applicant’s husband submitted that because the visa applicant was allowed to sit the exams in June/July 2000, the Romanian education authorities must have approved of his private studies at home between 1998 and 2000. No documentary evidence was provided to confirm that the visa applicant studied at home or that any studies between 1998 and 2000 were approved in any way by Romanian authorities, and the Tribunal rejects this submission.
39.The review applicant’s husband submitted that the visa applicant did not complete his year 12 studies as required by clause 101.213 until he was granted the diploma in 2000. The Tribunal rejects the review applicant’s submission as the regulations do not refer to the visa applicant having passed or having successfully completed the equivalent of year 12, but require than the visa applicant has completed studies at that level, which was certainly the situation which applied to the visa applicant.”
The Tribunal makes a significant finding that the visa Applicant "completed the equivalent of year 12 in the Australian school system in 1998". It states that it remains:
“… to determine whether the visa applicant commenced his university course within six months or a reasonable period after having completed year 12 in 1998.”
The following relevantly appears in the Tribunal's decision:
“41.Information obtained by the overseas post indicates that Romanian students are entitled to re-sit their year 12 examinations twice without cost, in June/July and again in August/September and that they can re-sit the exams as many additional times as required for a fee. It is not apparent from the Department file that the local rules in Romania at the time of the advice in 2004 were the same as those which applied to the visa applicant between 1998 and 2000. However, neither the review applicant nor the visa applicant disputed the advice that the visa applicant would have been permitted to make further attempts to obtain his high school diploma before 2000, or otherwise provided evidence of any official rules or policies which might have prevented the visa applicant from doing so before 2000.
42.The review applicant stated that the visa applicant did not re-sit his exams until 2000 because he was disheartened over failing geography in 1998, although he was a top student in that subject throughout the year. She stated that the Romanian education system was rife with corruption at that time as the country was changing from communism to a market economy. The review applicant did not otherwise explain why the visa applicant waited two years before making his second attempt to secure the high school diploma.
43.The visa applicant advised the delegate at his interview that he waited until 2000 to re-sit the high school diploma because he was studying to prepare for the exams. The visa applicant suggested that because the education system in Romania changed between 1998 and 2000, he was required to pass additional subjects including biology and chemistry to secure university entrance.”
When considering the reasonableness of the period between completing year 12 and commencing post-secondary study, the Tribunal then referred to the guidance provided by the Federal Magistrates Court in the decision of Sok v Minister for Immigration [2005] FMCA 190 (Sok) and notes that that decision requires it to take into account the following matters:
· the actual time period involved;
· what activities if any were undertaken during that period of time;
· the purpose for which those activities were undertaken;
· if no activities connected with the ultimate course of study were undertaken, the reason for not undertaking activities related to the course of study.
In its decision the Tribunal, applying the authority to which reference has been made, then relevantly makes the following significant findings:
“45.The Tribunal is not satisfied that the visa applicant undertook any formal studies, including computer studies, between 1998 and 2000. The Tribunal is not satisfied that the visa applicant undertook home study between 1998 and 2000 so that he could sit again for the high school diploma that had eluded him by only one subject in 1998. The Tribunal does not accept that the visa applicant genuinely believe that he needed to study at home for two years before making another attempt at the diploma because he has been consistently described as a good student. Rather, the Tribunal finds that the visa applicant was, as stated by the review applicant, disheartened by events in 1998 and did not renew his commitment to continue his education until 2000.
46.The Tribunal does not accept that the visa applicant was engaged in activities related to his university studies between the completion of year 12 studies in 1998 and his enrolment at Banat’s University in 2000. The Tribunal notes that the visa applicant enrolled for, and received, unemployment benefit between November 1998 and July 1999 and that he worked part-time between September 1999 and December 1999. The Tribunal finds that there is no reasonable excuse for the visa applicant having not engaged in activities related to his education during a two year period between completing year 12 studies in 1998 and commencing at Banat’s university in 2000. The Tribunal takes into account all of the evidence before it, as well as relevant policy and case law, and finds that the period of two years between completing year 12 and enrolling at Banat’s University was not reasonable.”
The Tribunal then finds that the visa Applicant did not satisfy cl.101.213(1)(c).
The application for review
Apart from seeking an extension of time, the application for review refers to the following grounds:
“1.M.R.T MADE AN ERROR OF LAW.
2.FINDING BASED ON IRRELEVANT MATERIAL –
6 YEARS LATER.
3.MISTAKEN CONCLUSION (…)”
Mr Cain sought to rely upon two sets of written submissions. One is entitled "SUBMISSION," comprising seven-pages. The second is a document entitled "SUBMISSION No. 2", filed on 25 October 2006. In oral submissions, Mr Cain appeared to repeat a number of matters raised in the written submissions. The first submissions, filed in Court on 7 June 2005, claim that the Tribunal made:
“… an error of law which caused itself to ask the wrong question, to rely on irrelevant material, to make erroneous finding and/or to reach a mistaken conclusion, and the Tribunal's purported exercise of power was therefore affected.”
The First Respondent fairly conceded that at least part of that claim may include jurisdictional error to the extent that the Tribunal may have asked itself the wrong question and/or taken into account irrelevant considerations and/or failed to take into account relevant considerations. I agree with that assessment and shall only deal with those matters as I accept that they are appropriate matters to consider when undertaking judicial review and determining whether there has been jurisdictional error. Accordingly, the issues remaining are properly dealt with under the respective headings of "Irrelevant Considerations," "Relevant Considerations" and "Asking Itself the Wrong Question."
Irrelevant considerations
Whilst it is clear that the Applicant has raised the question of the Tribunal relying on irrelevant material, it is difficult to determine in the absence of further particulars that there is any merit in this claim. The reference to using material "six years late" is not of itself sufficient to persuade the court that there has been reliance by the Tribunal on irrelevant material.
The First Respondent made reference to the Tribunal's decision where it referred to information obtained "from the overseas post" in 2004 concerning the ability of students in Romania to re-sit their year 12 equivalent examinations. The inference, it was submitted, drawn from that material was that the position was the same in 1998, the year in which the Tribunal concluded the Applicant completed his year 12 equivalent. The First Respondent noted, as set out in an extract earlier in this judgment, that the Tribunal recorded or observed that the parties did not dispute that the Applicant could have repeated his year 12 examinations prior to 2000.
The First Respondent then submitted that the Tribunal did not take into account any irrelevant consideration but rather drew, from known facts in 2004, an inference about the facts in the period from 1998 to 2000 and observed that that inference was not contested by the visa Applicant or the review Applicant. It was argued that the material relied upon by the Tribunal could not then be regarded as irrelevant to its inquiry.
In my view, the First Respondent's submission in relation to this issue are correct. It was open to the Tribunal to draw the appropriate inference from the facts known to it in 2004 and to make the observation that the inference was not contested. Having done so, I cannot see how its reliance upon that information could be regarded as taking into account an irrelevant consideration. This claim should therefore fail.
Relevant considerations
Apart from detailed reference to factual matters which were before the Tribunal, it is clear that the application itself does not identify relevant matters which the Tribunal failed to take into account of a kind which might justify a finding of jurisdictional error.
The First Respondent submitted that essentially the submissions filed in this matter in support of the application seek to attack the weight given by the Tribunal and accordingly that is not sufficient to constitute jurisdictional error.
In my view, it is clear that the submissions seek to challenge the findings of fact and the weight given to information before the Tribunal. A great deal of attention has been given to what I would describe as the understandable “commonsense” approach of Mr Cain on behalf of the visa Applicant and the sponsor in seeking to explain the circumstances where the sponsor wishes to support the child visa application. Reference was made for example to parental obligations arising under the Family Law Act 1975 and otherwise a detailed chronology and history have been restated.
However, I cannot identify in the submissions any relevant consideration which has been identified which the Tribunal has failed to take into account. I do not accept that there is any jurisdictional error evidence in the Tribunal's detailed recital of the facts and findings which would lead this court to conclude that the Tribunal has failed to take into account a relevant consideration material to the application, and hence this ground should also fail.
Asking Itself the Wrong Question
In my view, a significant issue which arose in this application is whether the Tribunal incorrectly interpreted the word "completing" in cl.101.213(1)(c) of the Regulations. Further, as I understand the submissions for the Applicant, it is argued that the Tribunal incorrectly dealt with the question of what constitutes a "reasonable time" within the meaning of cl.101.213(1)(c) of the Regulations.
When considering the question of "reasonable time", the First Respondent submits that the Tribunal made no error and correctly applied the appropriate principles arising from the decision of the Federal Magistrates Court in Sok.
In my view, the First Respondent's submissions in relation to this issue are correct. The Tribunal, in the extract of its decision set out earlier in this judgment, has clearly turned its mind to the guidance provided by this court in Sok and has otherwise made a finding reasonably open to it when considering the reasonableness of the period of time between completing year 12 and commencing post-secondary study. It made findings of fact open to it and was not satisfied the Applicant undertook any formal studies including computer studies between 1998 and 2000. It was not satisfied that the visa Applicant undertook home study between 1998 and 2000 so that he could sit again for the high school diploma that had eluded him by only one subject in 1998.
It rejected the claim that the Applicant genuinely believed he needed to study at home for two years before making another attempt at the diploma and found, as was reasonably open to it to find, that the visa Applicant was disheartened by events in 1999 and did not review his commitment to continue his education until 2000. It otherwise made significant adverse findings in paragraph [46] of its decision, set out earlier in this judgment.
It is clear to me that the Tribunal, in the absence of a definition of what may constitute a "reasonable time", has exercised the discretion open to it in its fact-finding process in a manner free of any jurisdictional error.
There remains then the question of whether the Tribunal has made an error in its understanding and interpretation of the word "completing" which appears in cl.01.213(1)(c) of the Regulations.
The Applicant submits that it is appropriate to consider the dictionary definition of the word "complete". Reference was made to the definition which Mr Cain claimed appears in the Shorter Oxford Dictionary as:
“Having all its parts or elements”, “Entire”, “Full”, “Total”
It is perhaps useful to note that The New Shorter Oxford English Dictionary includes in the definition, “complete”, “finish, fulfil, Having all its parts or elements; entire, full, total …”, “Finished, concluded, having run its full course”.
It was argued that in this instance, failing to satisfactorily complete the year 12 equivalent means that it has not been completed. As I understood the Applicant’s submissions, it was argued that it is artificial to find that by simply participating to the end of year 12 in the academic year and sitting examinations constitutes a sufficient basis upon which it can be concluded that the year 12 equivalent examinations have been "completed" in circumstances where, as here, the student has failed.
The First Respondent submitted that there is no error in the Tribunal's interpretation of what it meant by "completing" in the relevant regulation. The Regulations, it was submitted, do not refer to a person "passing" the year 12 equivalent, nor to a person "successfully completing" the year 12 equivalent. It was submitted that to adopt the interpretation contended for the Applicant would:
“… undermine the clear purpose of the Regulation, which is to allow an application for a dependent child visa for certain adult children provided that the child in question is and remains in full time study continuously after reaching the age of 18 (subject to a reasonable interval between completion of year 12 study and commencement of university study).”
It was submitted that on the Applicant's approach, if a person failed the year 12 equivalent, entered the full-time paid workforce for five years and then decided to re-sit their year 12 equivalent examinations and enter full-time university study, then that person would satisfy the Regulations. It was submitted that this is not the correct approach to the Regulations. Instead, it was submitted, a person who has completed his or her year 12 equivalent upon the initial unsuccessful attempt is relevant. If the person then re-sits the examination within a reasonable time, that may provide a basis for concluding that any gap of more than six months between completion of the year 12 equivalent and commencement of the university study is reasonable.
The First Respondent submitted that there was no error made by the Tribunal in its interpretation of the relevant regulation.
In my view, the First Respondent's submissions are correct for the reasons advanced in submissions. The legislature could have inserted the word "successfully" or the word "passing" when referring to completion of "year 12 equivalent". The fact that the Regulations do not insert those further requirements in my view leaves it open to the Tribunal to interpret the Regulation in the manner that it has interpreted it and to make a finding of fact as to when the Applicant completed his year 12 equivalent, albeit in this instance upon what may be described as the initial unsuccessful attempt.
Whilst the court may have some reservations about the somewhat equivocal responses set out in the Applicant’s interview with the delegate, it is not prepared to conclude that the finding of fact on this issue is a finding not reasonably open to the Tribunal or that in making its finding of fact, the Tribunal has misinterpreted the requirement of the Regulation for the Tribunal to consider when the Applicant completed the year 12 equivalent. I accept that the Regulations do not require a finding that the Applicant “successfully” completed the year 12 equivalent. Accordingly, I can see no error of law in the manner in which the Tribunal approached its task when dealing with this issue.
In my view this is not a case where it could be argued that the Tribunal has made an error in determining a meaning of the relevant expression. I note however that even if an error had been made it would not follow that the Tribunal had committed a jurisdictional error. I note and apply a decision of McHugh J referred to by the First Respondent in Minister for Immigration and Multicultural Affairs, Re; Ex parte Cohen (2001) 177 ALR 473 where the court states:
“[34] …assuming that the tribunal erred in determining the meaning of these expressions because it applied an erroneous precedent in determining the meaning of “disability” and “other serious circumstance”, it does not follow that it committed a jurisdictional error. Adopting an incorrect interpretation is not always synonymous with jurisdictional error. …
[35] The tribunal understood the question that it had to answer. Even if it applied an erroneous precedent, it did not commit a jurisdictional error. The expressions “disability” and “other serious circumstances” were used in reg 1.03 in their ordinary, non-technical sense. The ordinary meaning or common understanding of a non-technical word is generally a question of fact.17 Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law.18 A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.”
It follows for the reason given that whilst I accept an extension of time should be granted, the application should otherwise be dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 17 November 2006
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