Bhattarai v Minister for Immigration
[2008] FMCA 1709
•10 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BHATTARAI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1709 |
| MIGRATION – MRT decision – refusal of on-shore student visa application – English proficiency tests required under assessment level criterion – no jurisdictional error established – application dismissed. |
| Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), Sch.2 cl.572.223, Sch.5A cl.5A404 |
| Kim v Minister for Immigration [2008] FMCA 1577 Li v Minister for Immigration [2008] FMCA 941 Liu v Minister for Immigration [2008] FMCA 750 |
| Applicant: | TOYANATH BHATTARAI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2347 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 10 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Ms T Quinn |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2347 of 2008
| TOYANATH BHATTARAI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Mr Bhattarai came to Australia in 2006 on a visa given to him in Nepal, which allowed him to enrol in a six month course in general English. Both the education provider and the course were registered under the Education Services for Overseas Students Act 2000 (Cth), and the course was a full-time ‘ELICOS’ course, defined in the Migration Regulations 1994 (Cth) as an “English Language Intensive Course for Overseas Students that is a registered course”. To qualify for his visa he sat for an international English language test (IELTS) test in Nepal, in which he achieved an overall score of 3.5 under the four components of that test.
Mr Battarai completed his course, and received a certificate of satisfactory attendance from 11 September 2006 to 30 March 2007, and achieved a proficiency level of “Advanced”. At the end of the course, he applied to stay in Australia on a further student visa, to allow him to undertake a vocational or training course in which he enrolled. This was a Diploma of Travel and Tourism course which would last two years. His application was made on 10 April 2007, and was for a subclass 572 temporary student visa. He tells the Court that he was advised by his Australian college that he would qualify for the visa, once he had completed his English course. If that advice was given, and I am unable to make any clear findings about that, it was wrong advice.
On 29 August 2008, a delegate decided that his English language qualifications were not the required qualifications for a person from Nepal applying for this visa. This consequence arose under one of the assessment level criteria on on-shore student visas. These criteria either preclude eligibility, or impose variable English language tests, on applicants for student visas depending upon the country which has issued their passport. As I suggested in a recent case, the policies which explain these criteria appear impenetrable in many circumstances (see Kim v Minister for Immigration [2008] FMCA 1577).
Under Migration Regulations Sch.2 cl.572.223(2)(a)(i)(A), the Minister, or the Tribunal on review, was obliged to be satisfied at the time of decision that:
(i) the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 572 and the assessment level to which the applicant is subject, in relation to:
(A)the applicant's English language proficiency for the purposes of each course of study that the applicant proposes to undertake; and ...
According to the Tribunal, and this is not challenged, Mr Bhattarai was the holder of a passport from Nepal and therefore was subject to assessment level 4 in relation to English language proficiency. Closely defined requirements for this were set out in Sch.5A cl.5A404:
Clause 5A404. English Language Proficiency
The applicant must give evidence that one of the following applies:
(a) the applicant:
(i) will not undertake an ELICOS before commencing his or her principal course; and
(ii) achieved, in the IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5;
(b) the applicant:
(i) will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course; and
(ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.0;
(c) the applicant:
(i) is fully funded; and
(ii) has a level of English language proficiency that satisfies his or her proposed education provider; and
(iii) if the applicant is to undertake an ELICOS before commencing his or her principal course – will undertake an ELICOS of no more than 20 weeks duration;
(d) the applicant had, less than 2 years before the date of the application:
(i) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:
(A) in Australia; and
(B) in English; or
(ii) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that:
(A) is specified by the Minister in a Gazette Notice for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English; or
(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; or
(iv) successfully completed a substantial part of a course that:
(A) is specified by the Minister in a Gazette Notice for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English; and
(D) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
(v) successfully completed a foundation course that was conducted:
(A) in Australia; and
(B) in English; or
(vi) successfully completed a course in foundation studies that:
(A) is specified by the Minister in a Gazette Notice for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English;
(e) the applicant achieved, less than 2 years before the date of the application, the required score in a test that is specified in a Gazette Notice under clause 5A102;
(f) the applicant has:
(i) a level of English language proficiency that satisfies the applicant’s proposed education provider; and
(ii) at least 5 years of study in English undertaken in 1 or more of the following countries:
(A) Australia;
(B) Canada;
(C) New Zealand;
(D) South Africa;
(E) the Republic of Ireland;
(F) the United Kingdom;
(G) the United States of America.
In its statement of reasons, the Tribunal examined in one paragraph Mr Bhattarai's circumstances in relation to these alternative provisions:
27. The applicant does not satisfy 5A404(a) and (b) because [he did] not achieve the requisite IELTS test score and he undertook an ELICOS of greater than 20 weeks’ duration before commencing his principal course. There is no evidence before the Tribunal that the applicant is fully funded as required by 5A404(c)(i) or that he completed the requirements for a Senior Secondary Certificate of Education as required 5A404 (d). There is also no evidence before the Tribunal that the applicant satisfies 5A404(e) or that he has at least 5 years of study in English as required by 5A404(f). Therefore the Tribunal finds that the applicant has not provided evidence of having the English Language Proficiency to meet clause 5A404. The Tribunal declined to allow the applicant further time to submit evidence that he meets the requirements because the Tribunal has previously agreed to delay its decision to enable the applicant to do so and the applicant remains unable to show that he meets the English language requirements set out in 5A404.
Mr Bhattarai now applies to the Court to set aside the Tribunal's decision, and to remit the matter to the Tribunal. He has been unrepresented, and has not formulated any argument which identifies error in the Tribunal's conclusions that his English language qualifications were insufficient for the purposes of the criterion in cl.572.223(2)(a)(i)(A).
However, because it was not clear to me that the Tribunal had addressed all the possible ways in which that Mr Bhattarai might satisfy one of the tests, and because some of the definitional provisions applicable to these provisions were not clear, I set the matter down for hearing today. I invited the Minister's representative to provide a written submission explaining in a clearer fashion than the Tribunal’s reasons, why it was submitted that the Tribunal's decision was correct in law on the material before it, and also that it was impossible for Mr Bhattarai to meet any of the tests on that material. I accept those submissions, which are on the file, and I shall not repeat them in their full elaboration.
In short, Mr Bhattarai could not satisfy either of the tests in (a) or (b) of cl.5A404 because he had not achieved “in an IELTS test that was taken less than 2 years before the date of the application” an overall band score of at least 5.5 or 5. In arriving at that conclusion, the Tribunal took into account not only his lower IELTS test result in Nepal, but also that Mr Bhattarai had attempted the test in Australia and achieved 4.5. This test was taken on 28 June 2008, after the visa application and while the matter was pending before the Tribunal. Although it is not clear from the language of these criteria, I accept the submission of the Minister that it is possible for that test to be undertaken during the pendency of the proceeding. There was no obligation on the Tribunal to allow Mr Bhattarai more than one chance to obtain a sufficient IELTS score.
Mr Bhattarai’s ELICOS course could not assist him for the purposes of paragraphs (a) or (b), because (a) requires that there have been no prior ELICOS course, and (b) requires that a short ELICOS course should be part of the study under the visa allowing the proposed vocational course. It remains obscure to me why his 6 month full-time ELICOS English course did not provide him with a sufficient proficiency level under these paragraphs, nor under any of the other paragraphs.
The Tribunal's conclusion that paragraph (c) did not apply was reached upon the basis that there was “no evidence before the Tribunal that the applicant is fully funded”. This is a term defined in cl.5A103, and concerns students whose costs are met by a multilateral agency, a foreign government, or the Commonwealth or a State government. Mr Bhattarai has not submitted that this conclusion of fact was not open to the Tribunal, and on the evidence before the Tribunal its conclusion appears to be correct.
The Tribunal expressly addressed only the first of the alternatives under paragraph (d), in its statement that “there is no evidence before the Tribunal …that he completed the requirements of a senior secondary certificate of education”. I have in another case addressed the meaning of ‘a senior secondary certificate of education’, and my opinion was followed by Barnes FM (see Liu v Minister for Immigration [2008] FMCA 750 and Li v Minister for Immigration [2008] FMCA 941). On that interpretation, there is no doubt that the Tribunal's conclusion was correct.
Although the Tribunal did not address the other sub-paragraphs in paragraph (d), I have been taken to the relevant definitional regulations and aids to construction, to understand the references to a "foundation course" and the "Australian Qualifications Framework at the Certificate IV level". I accept the Minister’s submission that there was no evidence before the Tribunal raising claims that Mr Bhattarai could satisfy any of those sub-paragraphs. Those of them which also required the relevant course to have been conducted outside Australia were not within Mr Bhattarai's circumstances.
A ‘Framework’ qualification at the certificate IV level is a tertiary course at a high level, and there is no doubt that Mr Bhattarai had not previously studied such a course.
A "foundation course" is defined in cl.5A101 as “a registered course that is registered as foundation studies”. There was no evidence before the Tribunal that the applicant's ELICOS course was such a course. If I am permitted to look at extrinsic material as to the courses which are so registered, I could conclude that it would have not been possible for Mr Bhattarai to have presented such evidence.
Paragraph (e) refers to a species of English language test which the Minister is empowered to specify in a Gazette Notice, as an alternative to an IELTS course. This provision appears designed for language testing offshore and, as the Tribunal correctly found, there was no evidence before the Tribunal bringing Mr Bhattarai's circumstances within that paragraph.
Finally, as the Tribunal correctly identified in relation to paragraph (f), Mr Bhattarai did not have at least five years of study undertaken in one or more of the relevant countries.
I am, therefore, satisfied that not only was the Tribunal's decision open to it on the evidence, but that it appears to be the only conclusion which it could have arrived at.
Mr Bhattarai made written and oral submissions to me which did not challenge that conclusion. He eloquently explained to me why the result was unfair in his circumstances, particularly because he came to study in Australia thinking that he could follow further education after completing his six month English course, because he received advice from his Australian college that he would be able to do that, and because he enrolled in the vocational course thinking he would be able to complete it. He also said that he would have great difficulty going back to Nepal and seeking to return to Australia on another student's visa in the future, due to his own personal situation and the circumstances in that country.
He asked the Court to give him permission to complete his two year course. However, as I have explained to him, it is not within the powers of the Court to give permission to people to stay in Australia. The Court's function is limited, as was the Tribunal's, to considering the effect of the Migration Regulations as they had been made, regardless of whether they do or not produce fair results in particular circumstances.
As I have pointed out to Mr Bhattarai, it is open to him to seek to persuade the Minister to exercise exceptional discretionary powers, if he wishes to present such a submission to the Minister.
The Minister seeks costs against Mr Bhattarai to follow the event, and seeks an assessment in the sum of $4,300.00. These costs have been increased due to the need for the Minister's representatives to assist the Court by preparing a written submission explaining the effect of the regulations, thereby giving rise to the need for a second hearing.
I accept that a costs order should follow the outcome of the case. However, in all the circumstances, I consider it is appropriate to reduce the amount which Mr Bhattarai should be ordered to pay. The need for a written submission and the further hearing arose from the terseness of the reasons of the Tribunal, and the impenetrability of these regulations. Mr Bhattarai is not responsible for either of these difficulties, and is understandably bemused by them. I consider that it was reasonable for him to have brought his application in an effort to discover why his English course was insufficient to allow him to continue his Australian studies.
In all the circumstances, I consider an appropriate party-party costs order would be the sum of $2000.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 23 December 2008
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