Dhaliwal v Minister for Immigration

[2015] FCCA 1218

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHALIWAL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1218

Catchwords:
MIGRATION – Student visa – review of Migration Review Tribunal (“Tribunal”) decision – English language proficiency – applicant failed to achieve required result in IELTS test – refused grant of visa.

ADMINISTRATIVE LAW – Allegation that Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider all of the facts and law relating to the applicant’s application.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), regs.1.03, 1.41, 1.44(1), item 1222(4) of sch.1, cl.572.223 of sch.2, cls.5A101 & 5407 of sch.5
Migration Legislation Amendment (2014 Measures No.2) Regulation 2014 (Cth), sch.8
Instrument number IMMI 14/003, “Specification of Student Visa Assessment Levels”, legislative instrument F2014L00315

Applicant: MANPREET SINGH DHALIWAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 264 of 2015

Judgment of: Judge Smith

Hearing date: 30 April 2015

Date of Last Submission: 30 April 2015

Delivered at: Sydney

Delivered on: 14 May 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents: Mr L. Dennis of Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 264 of 2015

MANPREET SINGH DHALIWAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application under s.476 of the Migration Act 1958 (“Act”) for judicial review of a decision of the second respondent (“Tribunal”) dated 13 January 2015. The Tribunal affirmed a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicant a Student (Temporary) (Class TU) visa.

2. In order to succeed in his application, the applicant must establish that the Tribunal’s decision was affected by jurisdictional error. For the reasons that follow, he has failed to do so and the application must be dismissed.

Relevant Legislation

1. The applicant is a citizen of India who applied for a Student (Temporary) (Class TU) visa on 23 April 2014 with the intention of undertaking a diploma of business starting on 5 May 2014 and subsequently an advanced diploma of business commencing on 1 December 2014.

2. At the time of the visa application there were eight subclasses for the Class TU visa: item 1222(4) of sch.1 to the Migration Regulations 1994 (“Regulations”). The particular subclass for which the applicant applied was subclass 572, Vocational Education and Training Sector. The criteria for the grant of that particular subclass of visa were contained in cl.572 of sch.2 to the Regulations. Of particular relevance to these proceedings is the following “time of decision” criterion:

   572.223

   …

   (2)An applicant meets the requirements of this subclause if:

   a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and …

3. This criterion appears to be the same as that contained in reg.1.44(1).

4. The criteria contained in cl.572.223 were amended by the Migration Legislation Amendment (2014 Measures No.2) Regulation 2014. However, those amendments only applied to applications for subclass TU visas made on or after 23 November 2014: sch.8 to the Amendment.

5. An “assessment level” is that specified by the Minister: reg.1.41. At the time of the application, the relevant specification by the Minister was contained in IMMI 14/003. Under that instrument, the relevant level for an Indian passport holder applying for a subclass 572 visa was level 3.

6. The phrase “highest assessment level” is defined in reg.1.03 as follows:

   highest assessment level, for an applicant for a student visa, means:

   a)if the applicant proposes to undertake a single course of study that is a registered course—the assessment level for that course of study; and

   b)if the applicant proposes to undertake 2 or more courses of study that are registered courses and that do not include an ELICOS—the assessment level for those courses which is the highest number from 1 to 3; and

   c)if the applicant proposes to undertake 2 or more courses of study that are registered courses and that include an ELICOS—the assessment level for those courses which is the highest number from 1 to 3, not including the ELICOS course.

7. “ELICOS” means an English Language Intensive Course for Overseas Students that is a registered course: reg.1.03. The applicant did not propose to study an ELICOS course and so the highest assessment level for him was level 3.

8. There were three relevant categories of requirements in sch.5A in respect of assessment level 3: English language proficiency, financial capacity and other requirements. The first of these is relevant to the issues in the present case and were contained in cl.5A407. That clause contained a number of alternative means by which it could be met. They were:

   5A407English 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 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;

   (b)the applicant:

   (i)will undertake an ELICOS of no more than 30 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 4.5;

   (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 30 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 an instrument in writing 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 an instrument in writing 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 an instrument in writing 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 legislative instrument made by the Minister 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.

9. It will be necessary to return to one of these requirements in due course. In the meantime it is necessary to return to the chronology.

Background

1. The applicant’s visa application contained very little information and appears to be accompanied by no documents. In the application it was noted that the applicant’s highest education qualification was a General English Course which he had completed in 2014. It was also noted that the applicant had not undertaken an English test in the last 24 months.

2. By letter dated 28 April 2014 a delegate of the Minister requested further information on the material in connection with the application. In particular, he requested evidence of the applicant’s English language ability in a manner which reflected the separate requirements in cl.5A407 of sch.5A of the Regulations. Amongst the matters requested was evidence of test results following English language tests such as the International English Language Testing System (IELTS).

3. It appears from the material before the Court that the applicant submitted a number of documents to the Department in response to this letter. They were: a “Detail of Marks” card from the Punjab State Board of Technical Education and Industrial Training dated 23 October 2006; a “Provisional National Trade Certificate” from the same board dated 24 January 2007; a diploma certificate from a Technical Institute dated July 2006; two certificates from the Punjab School Education Board dated March 2003 and 2005 respectively; a “Character Certificate” from a senior secondary school dated 1 July 2005; a statement of attainment certifying that the applicant had been enrolled in a 47-week General English Course at a college in Sydney from 15 April 2013 to 6 April 2014; a “Character Certificate” from a government high school in India; a certificate from a Polytechnic College in India concerning a welding qualification and a document entitled “Punjab Residential Certificate” dated 23 August 2005.

4. On 13 June 2014 a delegate of the Minister decided to refuse to grant the applicant a visa on the basis that he had been unable to provide evidence of his English-language proficiency and so did not meet the requirement of reg.572.223(2). The applicant applied to the Tribunal for review of this decision.

5. By letter dated 28 November 2014 the Tribunal invited the applicant to attend a hearing before it to take place on 13 January 2015. In the same letter it asked that further information be provided including evidence that he met the English language proficiency requirements.

6. The Tribunal had before it (although it is not clear whether the applicant supplied this document or not) a list of the applicant’s certificates of enrolment from a system called PRISMS (“Provider Registration and International Student Management System). That record showed that the applicant had completed a course entitled “General English (Beginner to Advanced) (4 to 48 weeks)” on 6 April 2014. That record was consistent with one of the documents provided by the applicant to the Department of Immigration in response to its letter requesting information.

7. By email dated 12 January 2015 the Tribunal requested the applicant to provide the information requested in its letter dated 28 November 2014 to be submitted prior to the applicant’s hearing.

8. The applicant attended the hearing before the Tribunal and 13 January 2015 and provided a number of documents including, once again the statement relating to the 47-week general English course undertaken from 15 April 2013 to 6 April 2014 in Sydney. The Tribunal asked the applicant if he knew why the delegate had refused him the visa. The applicant replied that he had needed the IELTS but said that he had not undertaken such a test because he thought he could do it some time in the future. The Tribunal then discussed the requirements of sch.5A with the applicant and specifically cl.5A407. The applicant indicated that he did not satisfy any of those alternative requirements.

9. The Tribunal made its decision on the same day affirming the decision of the delegate. The reasons for that decision were:

   [11]The Tribunal finds after considering the evidence provided at the hearing, that the applicant does not satisfy the English language proficiency requirements. The applicant stated at the hearing that he had not undertaken an IELTS test and he did not satisfy any of the alternative options in cl.5A407. The applicant stated that he intended to take steps in the future to meet those requirements. However, the Tribunal has formed the view that the applicant has had sufficient time to make those arrangements but for reasons not provided he decided not to.

   [12] Under these circumstances, the Tribunal finds that the applicant has not given evidence in accordance with the applicable Schedule 5A requirements and therefore he does not satisfy cl.572.223(2)(a). The Tribunal finds that the criteria for the grant of a Subclass 572 visa are not met and there is no evidence that the applicant is eligible to be granted a student visa of another subclass. It finds of the decision under review must be affirmed.

Consideration

1. The ground in the application is that the Tribunal “made a jurisdictional error in denying the applicant’s application for a Student (Temporary) (Class TU) visa in failing to consider all the facts and the law related to the applicant’s application”. There follows a number of particulars each of which is no more than a recitation of the Tribunal’s reasons. No proper basis for the application has been shown in the application itself and none was explained by the applicant at the hearing before me.

2. The applicant sought to rely on an affidavit sworn by him on 22 April 2015. The affidavit annexed a number of documents including an IELTS report form dated 28 March 2015 and an enrolment agreement for a 50 week General English Course commencing on 18 May 2015. I reject the affidavit as none of the material had been before the Tribunal and could not, on any view, support any argument that its decision was affected by jurisdictional error.

3. As the applicant was unrepresented before the Court I have looked at the matter to determine whether there might be an argument that the Tribunal failed to properly exercise its jurisdiction. The only real possibility was that there was evidence before the Tribunal that the applicant had completed a General English Course from 14 April 2013 until 6 April 2014. It will be recalled that one of the alternative means by which an applicant can satisfy the requirement of cl.5A407 was by providing evidence that he had:

   …

   (v) successfully completed a foundation course that was conducted:

   (A)in Australia; and

   (B)in English; or

   …

4. A foundation course means a registered course that is registered as foundation studies: cl.5A101 of sch.5A to the Regulations. A registered course means a course of education or training provided by an institution, body or person that is registered, under div.3 of pt.2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students: reg.1.03.

5. It is possible that the 47 week course completed by the applicant, evidence of which was before the Tribunal, was a course of education or training that fell within the meaning of a foundation course in reg.1.03 and that it was conducted in English. It was certainly conducted in Australia. If that were right, then the applicant might have in fact satisfied part of the criterion in cl.572.223(2), namely, sub-cl.5A407(d)(v). However, that is not the question before me. Rather, it is whether the Tribunal erred in finding that the applicant had not satisfied the relevant criteria for the grant of the visa.

6. As noted above, the Tribunal discussed each of the alternative requirements of sch.5A and specifically cl.5A407 with the applicant at the hearing. The applicant told the Tribunal that he did not satisfy any those alternative requirements. That was sufficient in my view to provide a logical basis for the Tribunal’s conclusion that the applicant had not provided evidence in accordance with cl.5A407. Importantly, the Tribunal specifically referred to the certificate that indicated that the applicant had completed a 47 week General English Course and stated that it had taken all of the evidence before it into account. I find on that basis that the Tribunal did take into account the certificate. Further, although I have noted the possibility that that certificate was evidence that could have satisfied sub-cl.5A407(d)(v) there appears to have been no evidence before the Tribunal of two critical elements required in order to conclude that it did meet those requirements: first, that the course was a “foundation course”; and secondly, that it was conducted in English.

7. For those reasons, it was open to the Tribunal to find that the applicant did not satisfy the criteria in cl.572.223(2) and once it did it was required to affirm the decision of the delegate.

Conclusion

1. Accordingly, there is no jurisdictional error in the Tribunal’s decision and the application must be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 14 May 2015