DIBA v Minister for Immigration
[2010] FMCA 354
•27 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DIBA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 354 |
| MIGRATION – Student visa – refusal – review of Migration Review Tribunal decision – construction of cl.572.234 of sch.2 to the Migration Regulations 1994. |
| Migration Act 1958, s.474 Migration Regulations 1994, regs.1.41, 1.42, cl.570.229 of sch.2, cl.572.234 of sch.2, cl.572.223 of sch.2, cl.5A404 of sch.5A Migration Amendment Regulations 2003 (No.9) |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| First Applicant: | FARHANA DIBA |
| Second Applicant: | SYED NURUL AZHAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 185 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 17 May 2010 |
| Date of Last Submission: | 17 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 27 May 2010 |
REPRESENTATION
| Counsel for the Applicants: | Mr P. Reynolds |
| Solicitors for the Applicants: | Parish Patience |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 185 of 2010
| FARHANA DIBA |
First Applicant
| SYED NURUL AZHAR |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of Bangladesh. On 12 March 2008 the first applicant applied for a Student (Temporary) (Class TU) subclass 570 Independent ELICOS Sector visa. Her husband, the second applicant, was included in that application as a member of the family unit. On
9 April 2008 a delegate of the Minister refused their application for visas and on 28 April 2008 they applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. On
17 September 2009 the Tribunal remitted the applicants’ application with the direction that the first applicant met certain criteria for the grant of a subclass 570 visa.
On 6 October 2009 a different delegate of the Minister refused to grant the applicants subclass 570 visas on the basis that the first applicant failed to satisfy cl.570.229 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicants sought review of that decision with the Tribunal but were unsuccessful and have now applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant law
The subclass 570 visa is for international students who want to study an English Language Intensive Course for Overseas Students (“ELICOS”). The criteria for the grant of a subclass 570 visa are set out in pt.570 of sch.2 to the Regulations. Relevantly in this case, a criterion to be satisfied at the time of decision was cl.570.229, which provided as follows:
If the applicant is subject to assessment level 3, 4 or 5, the aggregate of the period, or periods, of ELICOS 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, 571, 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.
On 17 December 2009 the applicants’ agent advised the Tribunal that the first applicant had enrolled in a Certificate IV in Marketing course and suggested that the Tribunal should consider her application as an application for a subclass 572 Vocational Education and Training Sector visa. The criteria for the grant of a subclass 572 visa are set out in pt.572 of sch.2 to the Regulations. Relevantly in this case, an essential criterion to be satisfied at the time of decision was cl.572.234, which was in terms identical to cl.570.229. The applicants’ agent submitted that the first applicant did not seek to undertake any further ELICOS courses and that, as a result, cl.572.234 was “not applicable”.
The assessment level which is applicable to a given visa applicant is determined by reference to his or her passport (see regs.1.41, 1.42). At the relevant time, the assessment level for a visa applicant who applied for a subclass 570 or subclass 572 visa and held an eligible passport from Bangladesh was Assessment Level 4.
Background facts
Subclass 570 visa
The first applicant came to Australia in 2003 on a subclass 574 visa. That visa expired on 15 March 2008 and the first applicant has held a bridging visa since that date.
As noted above, the first applicant’s application for a subclass 570 visa was lodged on 12 March 2008. Evidence before the second delegate indicated that the first applicant had already completed three ELICOS courses and was undertaking a further one which, together, amounted to 89 weeks of study. As this exceeded the maximum number of 40 weeks allowed for Assessment Level 4 applicants, the second delegate found that the first applicant had failed to satisfy cl.570.229 and refused to grant her the visa.
The Tribunal also found that the first applicant’s total period of study of ELICOS exceeded the prescribed amount and, on this basis, concluded that she did not satisfy cl.570.229, an essential requirement for the grant of a subclass 570 visa.
Subclass 572 visa
Based on the submissions provided by the applicants’ agent on
17 December 2009, the Tribunal also considered the applicants’ application against the criteria for a subclass 572 visa but found that the first applicant failed to satisfy cl.572.234.
In reaching this conclusion, the Tribunal did not accept the submission of the applicants’ agent that cl.572.234 was not applicable in the circumstances because the first applicant was not seeking to undertake any further ELICOS studies. The Tribunal found that the wording of cl.572.234 was both prospective and retrospective in nature and required the Tribunal to take into account, when assessing the relevant “aggregate” period, any past period of ELICOS studies together with any future ELICOS studies contemplated by the visa applicant. As the first applicant’s aggregate period of ELICOS studies had exceeded the prescribed 40 weeks, the Tribunal found that she could not be granted a subclass 572 visa.
Proceedings in this Court
The application commencing these proceedings pleaded the following ground:
1.The Second Respondent committed jurisdictional error by misconstruing or otherwise misapplying clause 572.234 of Schedule 2 of the Migration Regulations 1994 (Cth).
Applicants’ submissions
The applicants submitted that cl.572.234 is open to two possible interpretations, namely:
a)the clause is premised upon the assumption that an applicant “is seeking to undertake” an ELICOS and has no application where the applicant is not “seeking to undertake” an ELICOS; or
b)regardless of whether an applicant proposes to study an ELICOS, if the aggregate of the period or periods of past ELICOS study exceeds 40 weeks, then the applicant cannot satisfy the criterion.
The applicants submitted that the first of these was the correct interpretation and that the Tribunal erred by adopting the second.
The applicant submitted that the policy purpose underlying cl.572.234 was the prevention of applicants from undertaking excessive periods of ELICOS study and to require students who had undertaken excessive ELICOS studies to commence a principal course. In this regard, they referred to the Explanatory Statement to the Migration Amendment Regulations 2003 (No.9) where item [43] states:
… The purpose of new clause 572.234 is to prevent students undertaking excessive periods of ELICOS without commencing studies in a principal course.
It was submitted that if an applicant had already undertaken 40 weeks of ELICOS study then the policy objective would be to prevent him or her from taking another one of those courses and for him or her to commence a principal course. The consequence of this submission was, it was said, that an applicant who proposed to study something other than an ELICOS should not be prevented by cl.572.234 from doing so but, rather, should be encouraged to. It was further submitted that the construction adopted by the Tribunal was contrary to the clause’s policy objective and was both unfair and absurd because any applicant who had undertaken as little as one day more than 40 weeks of ELICOS study would be incapable of obtaining a student visa to study anything at all in Australia forever. It was submitted that this was absurd and draconian and lacked any apparent policy rationale.
Consideration
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.
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.
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.
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.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 27 May 2010
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