DHUNGANA v Minister for Immigration

[2016] FCCA 731

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHUNGANA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 731

Catchwords:

MIGRATION – Migration Review Tribunal – student visa – whether the Tribunal correctly understood cl.572.234 – whether Diba v Minister for Immigration and Citizenship (2010) 240 FLR 90, [2010] FMCA 354 is distinguishable – whether Diba is plainly wrong – whether the explanatory memorandum assists the applicant.

Legislation:
Acts Interpretation Act1901, s.15AB
Migration Act 1958, ss.500(6H)
Migration Regulations 1994, Schedule 2 cl.572.234

Cases cited:
Diba v Minister for Immigration and Citizenship (2010) 240 FLR 90, [2010] FMCA 354
Uelese v The Minister for Immigration and Border Protection & Anor (2015) 89 ALJR 498, (2015) 319 ALR 181, (2015) 66 AAR 136, [2015] HCA 2015

Applicant: RISHI DHUNGANA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 2351 of 2014

Judgment of: Judge Riley

Hearing date: 21 March 2016

Date of last submission: 21 March 2016

Delivered at: Melbourne

Delivered on: 21 March 2016

REPRESENTATION

Counsel for the applicant: Georgina Costello

Solicitors for the applicant: De Gama Pereira & Associates

Counsel for the first respondent: Angel Aleksov

Solicitors for the first respondent: DLA Piper

Counsel for the second respondent: No appearance

Solicitors for the second respondent: DLA Piper

ORDERS

1. The application filed on 21 November 2014 and amended on 15 April 2015 be dismissed.

2. The title of the proceeding be amended so that the second respondent is the Administrative Appeals Tribunal.

3. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,307.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 2351 of 2014

RISHI DHUNGANA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

MIGRATION REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(settled from the transcript)

1. This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”). The applicant applied for a student visa subclass 572. One of the provisions that applied to his application was cl.572.234 of Schedule 2 to the Migration Regulations 1994 (“the regulations”). 

2. Sub-clause 572.234(1) provided that:

   If the applicant is subject to assessment level 3, 4 or 5, the aggregate of the period, or periods, of ELICOS[1] that the applicant is seeking to undertake, together with the period, or periods, of any previous ELICOS undertaken as the holder of a Subclass 570, 572, 573, 574, 575 or 576 visa, or any subsequent bridging visa, does not exceed:

   (a)for an applicant who is subject to assessment level 3–60 weeks;  or

   (b)for an applicant who is subject to assessment level 4 or 5–40 weeks. 

   [1] English Language Intensive Courses for Overseas Students

3. It was common ground that the applicant had completed 57 weeks of ELICOS study and that he was subject to assessment level 4.  The Tribunal, in its reasons for decision, considered that it was bound by the authority of Diba v Minister for Immigration and Citizenship (2010) 240 FLR 90, (2010) FMCA 354. The Tribunal set out in its reasons for decision paragraphs 17 to 20 of Diba, which are as follows:

   [17] The effect of cl 572.234 is to deny subclass 572 visas to applicants who, in the aggregate, have or will undertake what is deemed to be too much ELICOS training. It can be inferred from this that the clause’s underlying purpose is to discourage excessive ELICOS study and, presumably, applicants whose poor English language skills mean that they have to undertake several or many such courses before they have an adequate facility with English. The burden of the applicants’ submissions is that the interpretation which is plain from the wording of the clause does not reflect its true purpose, which is to be found in the explanatory statement. That purpose is said to be one which is focussed not on preventing them from undertaking excessive periods of ELICOS, but on pushing applicants towards their principal studies. Such an interpretation is quite at variance with cl 572.234’s obvious intention and gives the words in the explanatory statement “without commencing studies in a principal course” a significance and meaning which cl 572.234 does not justify. While it is appropriate to have regard to the explanatory statement to understand the purpose of cl 572.234 and necessary to interpret the clause with a view to promoting its purpose, the explanatory statement is not the last word on the purpose underlying cl 572.234. The purpose of the clause is apparent from its text and the explanatory statement should not be construed in such a way as to suggest that it propounds a different one.

   [18] In any event, and contrary to the applicants’ submissions, a proper reading of the passage in the explanatory statement discloses that it is concerned to prevent an applicant who has not commenced studies in a principal course from undertaking periods of ELICOS deemed to be excessive. The drafter was not concerned with encouraging further study of principal courses but with preventing excessive study in an area other than the principal course, namely ELICOS. Specifically, the drafter was concerned to discourage excessive ELICOS study prior to the principal course having commenced. Consequently, it is incorrect to submit, as the applicants do, that the clause intends an applicant’s excessive periods of ELICOS study to be forgiven as long as he or she then commences studies in a principal course. If an applicant has undertaken more than the prescribed period of ELICOS tuition and has not commenced his or her principal course, whether or not he or she proposes further ELICOS study, then that applicant has undertaken “excessive periods of ELICOS without commencing studies in a principal course” and cannot satisfy cl 572.234.

   [19] Given the purpose of the clause, the reference in cl 572.234 to applicants who are “seeking to undertake” periods of ELICOS, might appear redundant. However, cl 572.234 has to be able to act prospectively because an applicant may be required, in order to satisfy the criteria in cl 572.223 and cl 5A404 of Sch 5A, to give evidence that he or she “will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course”: cl 5A404(b)(i). If an applicant to whom cl 5A404 applies achieves, in an IELTS test, an overall band score of at least 5.0 but less than 5.5 then he or she will have to undertake “no more than 20 weeks” of ELICOS training before commencing his or her principal course. That may have the result that the total period of the applicant’s ELICOS tuition will exceed the limit imposed by cl 572.234 without the applicant having yet commenced those principal studies. In such circumstances, the reference in cl 572.234 to applicants who are “seeking to undertake” periods of ELICOS is not in fact redundant.

   [20] Consequently, I conclude that the purpose underlying cl 572.234 is to make subclass 572 visas unavailable to applicants who, in the aggregate, have undertaken or seek to undertake what is deemed to be excessive ELICOS training. While on occasion it may be harsh and arbitrary for subclass 572 visas to be unavailable to Assessment Level 4 applicants who have, or will have, undertaken only slightly more than 40 weeks’ ELICOS training, it is not an absurd outcome in the context of what I conclude to be the purpose of the clause. For that reason I find that the Tribunal did not err in its understanding or application of the criteria set out in cl 572.234 of the Regulations.

4. The Tribunal concluded that, as the applicant had undertaken in excess of 40 hours of ELICOS, cl.572.234 operated to prevent the grant of a subclass 572 visa to the applicant. The Tribunal accordingly affirmed the delegate’s decision. The applicant then sought review in this court. He was legally represented and with the assistance of counsel filed an amended application. The essence of the application was a challenge to the Tribunal’s interpretation of cl.572.234 of Schedule 2 to the regulations.

5. The applicant argued that the decision in Diba was plainly wrong and said that this court should not follow it.  The applicant sought to distinguish this case from Diba, not on the basis of the facts, but on the ground that the court in Diba had not had the benefit of an argument under s.15AB of the Acts Interpretation Act1901.  That section permits a court to have regard to extrinsic materials in certain circumstances. 

6. The reality, however, is that the court in Diba did consider extrinsic materials in the form of the explanatory memorandum to the regulation that introduced cl.572.234. As such, in effect, the court in Diba accepted the applicant’s argument regarding s.15AB of the Acts Interpretation Act 1901. Therefore, there is no difference in substance between this case and Diba. 

7. Nevertheless, the applicant maintained that Diba was plainly wrong. The applicant noted that the explanatory memorandum regarding clause 572.234 stated that:

   This item inserts clause 572.234 into Schedule 2 to the Migration Regulations.

   New clause 572.234 provides that where an applicant is subject to assessment level 3, 4 or 5, the total period or periods of ELICOS (English Language Intensive Course for Overseas Students) that the applicant is seeking to undertake together with any previous periods of ELICOS undertaken while the holder of a Subclass 570, 571, 572, 573, 574 or 576 visa (or any subsequent bridging visa) must not exceed:

   ·60 weeks if the applicant is subject to assessment level 3; or

   ·40 weeks if the applicant is subject to assessment level 4 or 5.

   The purpose of new clause 572.234 is to prevent students undertaking excessive periods of ELICOS without commencing studies in a principal course.

8. The applicant argued that cl.572.234 only applies if the applicant is seeking to undertake further ELICOS training. However, it seems to me that such an interpretation is contrary to the plain words of cl.572.234. The clause clearly contemplates a situation where the relevant periods consist of the combination of both ELICOS studies that the applicant has already undertaken and any further ELICOS studies that the applicant is seeking to undertake.

9. Notwithstanding what appear to be the plain words of cl.572.234, the applicant drew to the court’s attention the High Court’s decision in the matter of Uelese v The Minister for Immigration and Border Protection & Anor (2015) 89 ALJR 498, (2015) 319 ALR 181, (2015) 66 AAR 136, [2015] HCA 15.

10. Uelese concerned the character test under s.500(6H) of the Migration Act 1958 (“the Act”) which provided that:

    … the Tribunal must not have regard to any information presented orally in support of the person’s case, unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. 

11. In paragraph 59 of its reasons for decision, the High Court held that:

    the preclusory effect of s 500(6H) is confined to information presented by or on behalf of the applicant for review in support of his or her case. Where information is adduced in cross-examination by the Minister or in response to inquiry by the Tribunal itself, it is inherently unlikely that the information is provided as part of an attempt to manipulate or delay the review process. 

12. The High Court noted that the purpose of s.500(6H) of the Act was set out in the explanatory memorandum for the Bill that led to the enactment of that provision. The explanatory memorandum said:

    These amendments are necessary in order to expedite review of decisions made by a delegate of the Minister under the new character provisions.  The amendments balance the Government’s concern to expedite review of character decisions against the need to ensure that the AAT has relevant information and sufficient time to properly review a particular decision to refuse to grant or to cancel a visa on the basis of a person’s character. 

13. The applicant in the present case relied upon Uelese to say that the court could take an expansive view of the purpose of cl.572.234, as it was explained in the explanatory memorandum.

14. I have some doubt about whether s.15AB of the Acts Interpretation Act 1901 permits a consultation or a consideration of the explanatory memorandum in the circumstances of the present case. 

15. Paragraph (1)(a) of the Acts Interpretation Act 1901 s.15AB permits consideration of an explanatory memorandum:

    to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act.

16. It seems to me that the ordinary meaning of cl.572.234 is clear and is contrary to the applicant’s submissions. Therefore, under s.15AB(1)(a) the court could only look at the explanatory memorandum to confirm a meaning that was contrary to the applicant’s position.

17. Under s.15AB(1)(b)(i) of the Acts Interpretation Act 1901, the court is permitted to look at an explanatory memorandum when the provision in legislation is ambiguous or obscure. I do not detect any ambiguity or obscurity in cl.572.234.

18. Under s.15AB(1)(b)(ii) of the Acts Interpretation Act 1901, the court is permitted to consider an explanatory memorandum to determine the meaning of a provision when:

    the ordinary meaning conveyed by the text of the provision, taking into account its context in the Act and the purpose or object underlying the Act, leads to a result that is manifestly absurd or is unreasonable.

19. The applicant noted that the explanatory memorandum for cl.572.234 said the following:

    The purpose of new clause 572.234 is to prevent students undertaking excessive periods of ELICOS without commencing studies in a principal course. 

20. The applicant argued that the purpose would not be achieved in the present case because the applicant had already undertaken the amount of ELICOS that he was intending to undertake and was not proposing to undertake any more. The applicant submitted that he simply wished to commence a principal course and it would be punitive to read cl.572.234 in a way that would prevent him from now embarking on a principal course. The applicant submitted that the reading contended for by the Minister did not meet the purpose of cl.572.234, but undermined it. The applicant argued that the purpose of the course was clearly to encourage people to commence a principal course rather than continue doing ELICOS courses.

21. The Minister argued that the interpretation of cl.572.234 contended for by him and accepted by this court in Diba was consistent with the purpose of the legislation as expressed in the explanatory memorandum.  The Minister argued that the purpose of the clause was to push people into commencing principal studies rather than studying further intensive English courses by establishing a disqualifying rule. 

22. It seems to me that the Minister’s submission is correct.  Although in some cases the clause would operate after the event rather than before a student had undertaken excessive periods of ELICOS, it nevertheless provides a bar which has the effect which the legislation apparently intended.  It seems to me that, even if one does take into account the explanatory memorandum, the applicant cannot succeed in this case. 

23. The explanatory memorandum does not have the effect that the applicant contends for.  The explanatory memorandum does not operate so as to defeat the clear words of the legislation in this case.  Consequently, the application must be dismissed. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 13 April 2016