Hussain v MIBP
[2017] FCCA 3247
•20 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUSSAIN v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3247 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal not to grant Child (Migrant) (Class AH) visas – whether the Tribunal misconstrued or misapplied cl.101.213(1)(c) and/or cl.101.221(2)(b) in Schedule 2 to the Migration Regulations 1994 (Cth) or failed to ask itself the right question. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.15AA Migration Act 1958 (Cth), ss.31(3), 45, 47, 65, 359AA Migration Regulations 1994 (Cth), regs.1.03, 1.05A, sch.2, pt.101, cls.101.211, 101.213, 101.221 |
| Cases cited: Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1; [2010] HCA 8 |
| Applicant: | MUHAMMAD HUSSAIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2374 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 20 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mostafa |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
A writ in the nature of certiorari issue directed to the Second Respondent quashing the decision made on 1 March 2016.
A writ in the nature of mandamus issue directed to the Second Respondent requiring the Second Respondent to determine according to law the application for review of the decisions of the delegate of the First Respondent made on 9 December 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2374 of 2016
| MUHAMMAD HUSSAIN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 1 March 2016 affirming decisions of a delegate of the First Respondent not to grant Child (Migrant) (Class AH) visas to two of the Applicant’s children. On 11 January 2017 I ordered, by consent, that the Applicant’s wife be appointed his litigation guardian for the purpose of these proceedings.
The Applicant, Mr Hussain, was a citizen of Pakistan who came to Australia in June 2010. He is the father and sponsor of the two visa applicants, Saima Hussain and Zulfiqar Ali Hussain, who are citizens of and resident in Pakistan. They applied for Child (Migrant) (Class AH) visas on 17 April 2013.
At all relevant times it was a requirement for the grant of a Subclass 101 Child visa that a visa applicant who had turned 18 meet the criterion in cl.101.213(1) in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) at the time of the application. That criterion is as follows:
(1)If the applicant has turned 18:
(a)the applicant:
(i)is not engaged to be married; and
(ii)does not have a spouse or de facto partner; and
(iii)has never had a spouse or de facto partner; 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.
Relevantly, a time of decision criterion in cl.101.221(2)(b) in Schedule 2 to the Regulations requires that the visa applicant “continues to satisfy the criterion in clause 101.213”.
The visa applicants attended an interview at the Australian High Commission in Islamabad on 29 October 2014. On 9 December 2014 a delegate of the First Respondent refused to grant child visas to the visa applicants. The delegate was not satisfied that either visa applicant met the criterion in cl.101.213(1)(c) in Schedule 2 to the Regulations.
Mr Hussain, as sponsor of the visa applicants, applied to the Tribunal for review of the delegate’s decisions.
His solicitor/migration agent provided pre-hearing written submissions describing the family’s circumstances and providing supporting documentation. It was submitted that both visa applicants had been studying full-time at the time of the visa applications (for a Bachelor of Commerce and Bachelor of Science). It was explained that later in 2013 they had stopped studying because of the security situation and were not studying in October 2014 when interviewed in Pakistan, but were admitted to study again in late 2014. It was also explained that when they were not studying full-time, the visa applicants had continued with part-time English studies at a centre near their home, doing what study they could, with the intention of returning to study full-time when the security situation in their hometown of Quetta improved sufficiently. The representative explained that both visa applicants had resumed full-time study and that, as at the time of the submission, they both continued to study full-time.
The Applicant’s representative also provided information about the security situation in Quetta and its effect on students, particularly Hazara students (such as the visa applicants) who were targeted by insurgents, and information in relation to the closure of colleges in Quetta in the absence of adequate security arrangements. It was explained that, as described in cited country information, the security situation in Quetta had improved in 2014 so the visa applicants returned to full-time study. The submission referred to attached letters for each of the children as to their admission to study for 2014-2016. These letters are not included in the Courtbook (although no issue arose in this respect in these proceedings).
Mr Hussain was invited to attend a Tribunal hearing at which his Australian resident daughter and the two visa applicants also gave evidence (the latter two by telephone). The only evidence before the Court as to what occurred at the Tribunal hearing is the Tribunal’s account in its reasons for decision.
In a further submission, Mr Hussain’s representative cited post-hearing country information said to confirm the impact of the security situation on Hazara students in Quetta in 2013 and 2014. The representative confirmed that the visa applicants were Hazara Shias, that they had stopped studying in August 2013 and that they had re-enrolled in late 2014.
The Tribunal Decision
In its decision dated 1 March 2016 the Tribunal described the issue in the case as:
…whether the applicants have since turning 18 or within six months of turning 18 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.
This description reflects the criterion in cl.101.213(1)(c) in Schedule 2 to the Regulations. The reference to the “applicants” is clearly intended to be a reference to the visa applicants.
The Tribunal referred to information provided about financial support provided to the visa applicants by Mr Hussain and Mr Hussain’s own medical issues (including a diagnosis of early dementia) and to the country information submitted after the hearing.
The Tribunal found that each of the visa applicants met the criterion in cl.101.211 in Schedule 2 to the Regulations, in particular that they were each dependent children at the time of the application within the definition in regs.1.03 and 1.05A of the Regulations and that they continued to satisfy this requirement at the time of decision as required by cl.101.221.
In addition, the Tribunal found that the visa applicants each met the requirements in cl.101.213(1)(a) and (1)(b) in Schedule 2 to the Regulations at the time of application and that they continued to satisfy these requirements at the time of decision.
The Tribunal then considered whether the visa applicants met the requirements of cl.101.213(1)(c) at the time of application and, if so, whether they continued to satisfy this criterion at the time of decision as required under cl.101.221(2)(b) of the Regulations.
The Tribunal stated:
33. At the time of application, the visa applicant must have, 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: cl.101.213(1)(c). However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl.101.213(2). This requirement must continue to be met at the time of decision: cl.101.221(2)(b).
34. This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]. In determining what is a ‘reasonable time’ for this requirement, it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [28].
The Tribunal referred to the oral evidence of Mr Hussain at the Tribunal hearing in February 2016 (notwithstanding evidence of a diagnosis of early dementia and medical evidence that Mr Hussain had poor memory, poor concentration and insomnia and that “[h]e sometimes gets confused with date (sic), time and place and does not remember his children’s name (sic), home telephone number and address”).
The Tribunal stated that Mr Hussain told it that since the visa applicants left school they had been engaged in full-time study. It recorded that under s.359AA of the Migration Act 1958 (Cth) (the Act) it had put to Mr Hussain that at their interview with the delegate (in Pakistan) the visa applicants had said that there had been a bomb blast and that their father had instructed them to stay at home and avoid dangerous public places. It recorded that Mr Hussain agreed that this was so and said that the Hazara group had been targeted in these bomb attacks. He stated that as he had been worried about the security situation, he had told his children not to go to their studies. He was not able to recall the date of the bomb blast or the security issues.
The Tribunal also recorded that Mr Hussain could not recall what his children in Pakistan were studying or for how long they had stayed home from their studies. He said that because he and his wife were not educated, he did not understand what the children were studying.
The Tribunal recorded that it then asked Mr Hussain why the Form 80 (the form on which personal particulars for assessment, including character assessment, were provided) submitted by each of the visa applicants with their applications showed that they both completed their last year of high school in 2009, when there was a three year age gap between them. Mr Hussain said that his son had needed to repeat two years of primary school and that therefore the two children had finished high school in the same year. The Tribunal recorded that Mr Hussain’s Australian resident daughter and each of the visa applicants gave consistent evidence in this respect.
Mr Hussain’s Australian resident daughter and the visa applicants were also said to have given evidence that the bomb blast (in Quetta) had been in August 2013, that there had been security issues for some time after that and that consequently the visa applicants had ceased studying in August 2013 and had not re-enrolled until November 2014.
The Australian resident daughter said that the security issues were directed at the Hazara community and so the family considered the two visa applicants were at risk. She agreed that there were a few Hazara students who had continued with their studies, but estimated that this was less than 20 per cent of the student population. She also told the Tribunal that when her brother went to re-enrol in his science degree, he was not able to do so as those courses were no longer offered. Therefore he enrolled in a Bachelor of Arts instead.
The Tribunal continued:
39. The Tribunal notes that there has been a gap of about a year in the studies of both of the visa applicants. It considers that at the time of the bomb blasts the applicants were both engaged in full time study. In the submission to the Tribunal lodged before the hearing, the migration agent noted there was a bomb blast in mid June 2013 which was reported on the BBC at that time. The submission notes that the security situation in Quetta affected students, particularly Hazara students who were specifically targeted by the insurgents.
40. The Tribunal considers the wording of cl.101.221(1)(b) (sic) relevantly provides that ‘the applicant continues to satisfy the criterion in clause 101.213.’ This means that the applicants must have been ‘undertaking study’ from the time of the application to the time of decision. In Opoku-Ware v MIBP [2015] FCCA 1638, the Court considered that the phrase ‘has been undertaking’ in cl.101.213(1)(c) describes an action that has already commenced and remains ongoing. Further, the Court held the words ‘has been undertaking’ study implied a continuous requirement and the language of the clauses does not permit an end to the study within the decisional time frame. The Tribunal is not satisfied, on the basis of the evidence presented that the applicants were continuously involved in study from the time they commenced their courses.
The Tribunal found that there was no evidence that the visa applicants were incapacitated for work due to loss of bodily or mental function (which would have enlivened the exception to the need to engage in full-time study provided for in cl.101.213(2)).
It then stated:
42. Accordingly, cl.101.213(1)(c) is not (sic) met at the time of application, and does not continue to be met at the time of decision.
The Tribunal concluded that the criteria for the grant of a Subclass 101 visa were not met. There were said to be no claims advanced in respect of other subclasses. The Tribunal affirmed the decisions not to grant the visa applicants Child visas.
The Tribunal also recorded in its reasons for decision that it had decided to refer the case to the Department for consideration by the Minister pursuant to s.351 of the Act. In this context the Tribunal expressed the view that the visa applicants were at significant risk to their lives had they continued to attend their courses of study. It stated (with apparent acceptance) that the visa applicants had been advised by their father not to attend as he was concerned about them given that the bomb blasts were targeted at the Hazara community, that they had therefore complied with his wishes and that as soon as they were able to they had resumed their studies.
However, on 11 April 2014, the Department advised Mr Hussain that the request for Ministerial intervention had been assessed by the Department as not meeting the Minister’s guidelines for referral and had therefore been finalised by the Department, without referral to the Minister.
These proceedings
Mr Hussain sought review by application filed in this court on 2 September 2016. As indicated, on 11 January 2017 I ordered that Mr Hussain’s wife be appointed as his litigation guardian for the purposes of these proceedings.
The proceedings were commenced outside the time provided for in s.477(1) of the Act. On 20 February 2017, I extended the time under s.477(2) of the Act. The matter proceeded to a final hearing.
The Applicant relies on his application of 2 September 2016. There is one ground in the application. It is as follows:
1. The Tribunal misconstrued or misapplied either or both of clauses 101.213(1)(c) and 101.221(2)(b) of Schedule 2 of the Migration Regulations 1994 (Cth), or failed to ask itself the right question.
Particulars
a. The Tribunal construed clause 101.213(1)(c), when applied as a time of decision criterion, as requiring a visa applicant to have been continuously involved in study from the time that the visa applicant commenced his or her full-time course of study referred to in cl 101.213(1)(c) up until the time of decision on the visa application.
b. The Tribunal should have considered clause 101.213(1)(c), generally or at least when applied as a time of decision criterion, as requiring an enquiry as to whether, from the time that the visa applicant commenced his or her full-time course of study referred to in cl 101.213(1)(c) up until the time that clause 101.213(1)(c) had to be satisfied, the visa applicant’s conduct was appropriately characterised as having been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. Such an enquiry is not answered by a finding that the visa applicant was not continuously involved in study during that period.
The Applicant acknowledged that in paragraph 42 of its reasons, the Tribunal found that cl.101.213(1)(c) was “not” met at the time of application and that it did not continue to be met at the time of decision. It was suggested that the finding that cl.101.213(1)(c) was “not” met at the time of application appeared to be a “slip” on the Tribunal’s part, given that nothing in the Tribunal’s decision explained how such a conclusion was reached and the fact that there was evidence before the Tribunal that at the time of the visa applications on 17 April 2013 the visa applicants were studying and that the pause in the visa applicants’ studies did not occur until August 2013. It was suggested that this “slip” by the Tribunal did not provide a basis on which the Applicant should be refused relief if the Court was satisfied that the Tribunal erred in its construction of the criteria in issue.
The Applicant did not suggest that the Tribunal’s finding that cl.101.213(1)(c) was not met at the time of the application revealed any jurisdictional error, notwithstanding that particular (b) in the ground of review is drafted to include reference to the consideration of cl.101.213(1)(c) “generally”. Rather, the Applicant’s contention was that the Tribunal had erred in taking the view that the relevant criteria (in cl.101.213(1)(c), including when read with cl.101.221(2)(b)) could be satisfied only if study were “continuous” for the period in issue, in particular from the time study commenced up to the time of decision.
In support of this ground the Applicant pointed to the fact that there was evidence before the Tribunal (in the representative’s submissions) that the family were Hazara Shias and that the children resided in Quetta in Pakistan. It was submitted that the oral evidence from Mr Hussain that since leaving school the visa applicants had been engaged in full-time study, should be seen as evidence that each of the children became engaged in full-time study at the completion of their schooling. It was pointed out that while the Tribunal did not make a specific finding as to whether the visa applicants became engaged in full-time study at the completion of their schooling, it did not express any doubt on this point and considered that at the time of the bomb blasts, the Applicants were both engaged in full-time study.
There was also evidence before the Tribunal that there were bomb blasts in Quetta, including in August 2013, and that there were significant ongoing security issues for some time after that, with Hazara students being particularly targeted. It was submitted that the evidence before the Tribunal was that the visa applicants had “paused” their studying as a result of the security issues and that they re-enrolled in November 2014.
The Applicant pointed to the fact that the Tribunal had noted that there had been a gap of “about a year” in the studies of both the visa applicants as a result of the bomb blasts and that in referring the matter for consideration by the Minister, the Tribunal had expressed the view that the visa applicants were at significant risk to their lives had they continued to attend their courses of study, noted their father’s advice and that “they therefore complied with his wishes” and stated that “[a]s soon as they were able to they resumed their studies”.
The Applicant submitted that the Tribunal had proceeded on the basis that the criteria in cls.101.213(1)(c) read with 101.221(2)(b) could only be satisfied if the visa applicants’ study was “continuous” from the time of commencement of study to the time of decision. The Tribunal was said to have taken this approach on the basis that the words “has been undertaking” study in cl.101.213(1)(c) “implied a continuous requirement” and the fact that the language of the criteria had been held not to permit an end to the study within the decisional time frame in Opoku-Ware v Minister for Immigration and Border Protection (2015) 297 FLR 416; [2015] FCCA 1638.
It was submitted that the Tribunal’s construction of these criteria was incorrect and that a requirement that study be “continuous” was not necessitated by the wording of the clauses in question. Rather the Applicant suggested that these criteria obliged the Tribunal to enquire as to the visa applicant’s activities from the time of commencement of studies to the time of decision to determine whether such conduct was appropriately characterised as “has … been undertaking” study as specified in cl.101.213(1)(c) and whether the visa applicant “continues to satisfy” such requirement at the time of decision.
The Applicant contended that the principles regarding the construction of provisions such as cls.101.213 and 101.221 were well-settled, that the Court was to consider the words of the provisions in their context, with reference to the purpose of the provisions (see North Australian Aboriginal Justice Agency Limited v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [11]) and that a construction that would best promote the purpose or object underlying the legislation was to be preferred to a construction that would not promote that purpose or object (also see the Acts Interpretation Act 1901 (Cth), s.15AA).
It was submitted that in choosing between alternative constructions it was relevant to consider the outcomes that each construction may have. Counsel for the Applicant suggested that the High Court had, on a number of occasions, refused to adopt constructions of clauses within Schedule 2 to the Regulations that would lead to results that were “capricious and unjust” (see for example Shahi v Minister for Immigration and Citizenship (2011) 246 CLR 163; [2011] HCA 52 at [38]) or to “unfairness and absurdity” (see Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1; [2010] HCA 8 at [26]).
The Applicant referred to the fact that, as stated Opoku-Ware at [34], and as was said to have been accepted by Judge Lloyd-Jones, the applicant in that case had submitted that the purpose of the Subclass 101 Child visa was to provide a migration option for offshore children who were genuinely still dependent on their parents. The purpose of cl.101.213 was said to be as stated in Opoku-Ware at [35]:
… to recognise that certain categories of children over the age of 18 may be regarded as dependent children for the purposes of a Subclass 101 - Child visa application … it is intended that a child who is not engaged or married, is not working full time, and who pursues further education will be recognised as a dependent child.
The Applicant pointed out that the words “continuous” or “continuously” do not appear in cl.101.213(1)(c) (or in cl.101.221(2)(b)) and also submitted that cl.101.221(2)(b) speaks to the time of decision, not to the whole time period from the time of application until the time of decision.
The Applicant contended that the natural meaning of the phrase “has, since turning 18 … been undertaking” in cl.101.213(1)(c) (read with cl.101.221(2)(b)) was to require the decision-maker to look at the time period from the visa applicant turning 18 until the time of decision, and to ask whether, characterised as a whole, the visa applicant’s conduct in that period warranted the conclusion that the visa applicant had been undertaking relevant study in that period. The Applicant submitted that such an approach would allow for pauses in study and that the question for the Tribunal would be whether a pause was such as to warrant the conclusion that, when the period was viewed as a whole, the visa applicant could not be said to have been undertaking study since he or she turned 18 (or since a reasonable time after completing the equivalent of year 12). It was suggested that so long as a pause did not deny that characterisation of the visa applicant’s conduct in the relevant time period, then the criteria could be met.
It was submitted that this approach required the Tribunal to make a qualitative assessment of any pause in study and that factors such as the duration of the pause and the reason for the pause ought to have been considered, but that the Tribunal had not undertaken any such qualitative assessment in this case.
The Applicant submitted that (contrary to the Tribunal’s view) the words “has … been undertaking study” had a broader meaning than “continuously involved in study” during the relevant period and admitted of pauses in study. It was submitted that the Tribunal’s approach in this respect imported a strictness that the words of the criteria did not require.
The Applicant also submitted that the suggested approach to construction avoided absurd outcomes that may follow if the Tribunal’s approach were to be accepted as correct. Quite apart from the absence of the words “continuous” or “continuously” in cl.101.213(1)(c), this was said to be a good reason to reject the Tribunal’s approach.
The example was given of an applicant for a Child visa who had commenced university study at the end of school and completed several years of study, but during that time missed a semester of study due, for example, to a broken leg. It was submitted that it would be within the ordinary usage of the words “has … been undertaking study” to say that such person “has … been undertaking study” since finishing school, albeit that such person was not “continuously involved” in study from the completion of their schooling.
The Applicant contended that this example showed that the Tribunal’s construction of the criteria in issue could be said to give rise to absurd or capricious results, particularly given the time it could take for such a visa application to be determined and the need for the visa applicant to continue to satisfy the requirement that he or she has been undertaking study. Bearing in mind the purpose of the relevant provisions, as considered in Opoku-Ware, it was submitted that a construction of the criteria that did not allow for a distinction to be drawn between persons who suffered some such misfortune and those who did not should be adopted only if no other construction was available (see Shahi and Berenguel).
It was pointed out that an alternative construction of the criteria was available and submitted that the correct approach was to ask whether the visa applicant’s conduct during the relevant time period up until the time of decision (when taken as a whole) was aptly described by saying that the visa applicant has been undertaking (relevant) study in that period. On such an approach, a pause in the visa applicant’s studies during that time period may, or may not, warrant the conclusion that the visa applicant’s actions could not be so described.
While the Tribunal relied on Opoku-Ware as authority for the proposition that cl.101.213(1)(c) (read with cl.101.221(2)(b)) required “continuous involvement” in study from the time the visa applicants commenced their courses, the Applicant submitted that Opoku-Ware did not call for the importation of a requirement of such “continuous” involvement in study into cls.101.213(1)(c) and 101.221(2)(b).
It was pointed out that in Opoku-Ware the visa applicant had applied for a Child visa at a time he was undertaking study. Six months later, in September 2012, he had completed that course. He had not continued his studies thereafter. In November 2013 the Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the visa. It was in that context that Judge Lloyd-Jones found that (at [78]) “[i]n cl.101.221(2)(b) the verb used is “continues” which is written in the present tense. Accordingly, on this construction, it must be the case that the applicant is still undertaking studies at the time of the decision in respect of the visa” and (at [84]) that “the language of the clauses does not permit an end to the study within the decisional time frame” (emphasis added).
The Applicant submitted that the present case was very different from Opoku-Ware. In the present case, unlike in Opoku-Ware, the visa applicants were studying at the time of the Tribunal decision. Despite this, the Tribunal was said to have found that they did not meet the criteria in issue because it was of the view that Opoku-Ware meant that a visa applicant had to be “continuously involved” in study from the time he or she commenced his or her course of study.
The Applicant also submitted that in this case the studies of the visa applicants were in fact actions that, in the words of the Court in Opoku-Ware, had “already commenced and remain[ed] ongoing” at the time of the decision (see Opoku-Ware at [75]), that both visa applicants were “still undertaking studies at the time of the decision” (cf Opoku-Ware at [78]) and that their studies had not come to “an end … within the decisional timeframe” (see Opoku-Ware at [84]).
It was submitted that Opoku-Ware did not stand for the proposition that visa applicants must be “continuously involved in study from the time they commenced their courses” in order to satisfy the criteria (as the Tribunal found in this case at [40]). Rather, Opoku-Ware was said to show that a visa applicant must be studying at the time of the decision and that the action of studying must have commenced earlier (that is, by the time of the visa application). The Applicant contended that Opoku-Ware did not address the question of whether and to what extent a pause in study between the date of application and the date of the decision meant that a visa applicant did not meet the criteria in issue.
It was made clear by counsel for the Applicant that it was not suggested that it was sufficient for the Tribunal to consider whether the visa applicants were studying at the time of application and at the time of decision. It was acknowledged that what was in issue under cl.101.221(2)(b) was activity on the part of the visa applicant (cf Xiang v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 301; [2004] FCAFC 64 at [9]-[10]) and that the Tribunal must have regard to the period between the time of application and time of decision as a whole (see Liang v Minister for Immigration and Citizenship (2009) 107 ALD 88; [2009] FCA 189 at [51]). However it was submitted that the nature of “undertaking study” necessarily involved there being times when a person was not “studying”, so that the Tribunal had to undertake a qualitative assessment to determine whether a person “continues” to meet the requirement that he or she has been undertaking study during the period in issue.
Insofar as the First Respondent relied on the distinction between the application of these criteria to an “activity” or to a “status”, the Applicant pointed out that in Xiang what was in issue was a question of status. In Liang, Logan J took the view that the effect of the word “continues” depends on the context in which it is used, stating (at [46]-[47]):
Xiang’s Case is in point to the extent that the Full Court has counselled that “continues” is a word the effect of which depends on the context in which it is used. It must not, as the Full Court stated in the passage quoted above, be read in isolation. The Full Court noted usages of the word in respect of both an activity and a status. As it happened, it was in the latter context that it was used in Xiang’s Case to the end that there it did not carry with it any requirement that the status be held in the interval between application date and decision date by the visa applicant. In Rao’s Case, as the Full Court noted, the word “continues” was used in a different context.
In those parts of the regulations considered in Xiang’s Case and in Rao’s Case, as well as in the present case, “continues” is used as a transitive verb. So used, the sense of the word is “to carry on, keep up, maintain, go on with, persist in (an action, usage, etc) (Oxford Dictionary, 2nd Ed, 1989) or “to go forwards or onwards in any course or action; keep on” (Macquarie Dictionary, Online Edition). When used for the purposes of cl 845.221 in conjunction with “a status which has a temporal condition”, it requires nothing more than that that status is possessed at the time when the assessment falls to be made, relevantly, at the time when the administrative decision in respect of the visa application is made. If a visa criterion contains a temporal limitation in relation to possession of a particular status at the time of application, a visa applicant who then has that status and who also has that status at the time when the decision in respect of that application is made, necessarily “continues” to have that status. Furthermore, the visa applicant will “continue” to have that status at the time of decision irrespective of whatever his or her status may be in the period which elapses after the date of application and before the date of decision. On the other hand, in respect of an activity based criterion carrying with it no temporal limitation, satisfaction at the time of decision that the visa applicant “continues to” meet that criterion will necessarily require scrutiny of whether that activity was maintained in the interval.
However what was in issue in Liang was a requirement as to possession of an “ownership interest” in a business and it was in that context that Logan J held that the requirement that the visa applicant “continues” to satisfy that criterion would not be satisfied if there was any “gap” in the holding of such an interest from the start of the time specified to the time of decision.
The Applicant submitted that these cases illustrated that the meaning of the word “continues” had to be considered in the particular context in issue and that the context of a criterion requiring that a person has been undertaking the activity of study was quite different to a requirement that a visa applicant have an ownership interest in a business.
The Applicant acknowledged that the suggested correct approach to construction of these provisions required the Tribunal to make a qualitative assessment of any pause in study. It was also conceded that it would be for the Tribunal to determine whether any particular pause in studies meant that a visa applicant did not satisfy the criteria in cl.101.213(1)(c) read with cl.101.221(1)(b). It was pointed out that in this case, in referring the matter for consideration by the Minister the Tribunal had accepted that the visa applicants were at significant risk to their lives, that they followed their father’s wishes and that they had resumed their studies as soon as they were able. However it was submitted that the Tribunal had not undertaken any assessment of such evidence or the visa applicant’s conduct, but rather had proceeded on the basis that the fact of a gap in studies meant that the criteria could not be met.
The First Respondent conceded that there was no controversy in this case as to the applicable principles concerning the correct approach to construction of the Regulations. However it was contended that the Tribunal in this case took the correct approach to interpreting and applying cls.101.213(1)(c) and 101.221(2)(b), consistent with the text, context and object of the relevant clauses.
It was submitted that these clauses imposed strict criteria in relation to undertaking a particular kind of study, that the Tribunal had read these words by reference to their natural and ordinary meaning and that there was no textual or contextual reason to read them otherwise.
Counsel for the First Respondent submitted that rather than there being an issue of construction of the criteria (as the Applicant submitted), this case in fact involved a controversy over how the Tribunal had applied itself to determining whether on the facts before it a person met the criteria for the grant of a visa.
The First Respondent submitted that it was important not to lose sight of the facts as presented by the visa applicants before the Tribunal. It was submitted that there was no evidence that at the time the visa applicants had ceased their studies at the request of their father for safety reasons, it was expected that either would recommence studies at a particular point of time. Rather, it was said that the evidence was that their studies stopped and later recommenced (with the male visa applicant having to change courses) so that there was a gap in their studies.
The First Respondent contended that in these circumstances it was open to the Tribunal to find that the visa applicants had not been undertaking studies for the interval between the time of visa application and the time of the Tribunal decision.
It was acknowledged that there may have been very good and justifiable reasons for the gap in study, but submitted that “the regulatory language does not invite or require consideration of why a gap in studies occurred”. It was also said that the Applicant could point to no authority supporting a “qualitative” approach to assessing whether a person has been undertaking a course of study.
Insofar as the Applicant contended that it would have been simple for the drafters of cl.101.213(1)(c) to have added the word “continuously”, had that been intended, the First Respondent submitted that this overlooked what was said to be the natural and ordinary meaning of the expression “has been undertaking”. It was contended that, consistent with the Court’s findings in Opoku-Ware, the tense of the expression in the clause implied continuity. There was said to be no patent ambiguity in the verb “undertaking” or the expression “has been undertaking”.
Insofar as the Applicant submitted that the Tribunal had erred in its reliance on Opoku-Ware, the First Respondent pointed to the fact that the Tribunal had referred, correctly, to an express finding in Opoku-Ware that the phrase “has been undertaking” in cl.101.213(1)(c) described an action that “has already commenced” and remained ongoing (Opoku-Ware at [75]). It was suggested that the Court in Opoku-Ware had applied a grammatical approach to the interpretation of this expression as a means of ascertaining its meaning. The First Respondent acknowledged that the facts in Opoku-Ware were different from those in the present case, in that by the time of decision the visa applicant in Opoku-Ware had completed the course she had been undertaking at the time of the visa application but had not commenced any other course. However, the grammatical analysis of Judge Lloyd-Jones at [75] was said to be applicable to a case such as the present.
The First Respondent also contended that insofar as the Applicant suggested that cl.101.221(2)(b) did not speak to the whole time period from the time of application until the time of decision, this was incorrect. This submission was put on the basis that as the requirements of the clause related to the engagement by the visa applicants in an “activity” (the undertaking of study) it was appropriate and necessary for the Tribunal to have regard to whether the activity continued throughout the period between the time of application and the time of the Tribunal’s decision (see Liang at [47] and cf Xiang at [9]).
The First Respondent suggested that while it was “unfortunate” that, in referring (at [40]) to its lack of satisfaction that the visa applicants were “continuously engaged in study”, the Tribunal had not adopted the language of the criterion in issue, it was clear from the context of the sentence in which this expression occurred that the Tribunal “was expressing its finding that it was not satisfied that the visa applicants had been undertaking a relevant course of study in that the undertaking was not continuous”. It was submitted that this manner of expression was not indicative of jurisdictional error.
The First Respondent submitted that the example of a person who broke a leg and missed a semester of study did not assist in the construction of the criteria in issue and that reasonable minds may disagree with the Applicant’s proposition that it would be an ordinary usage of the words “has been studying” to say that such a person has been studying since finishing school.
It was submitted that in the context of a requirement for the grant of a visa that a person be found to have been “undertaking” a course of study, the natural meaning of that term readily connoted continuity, as otherwise there was “no measure” of how a decision-maker applying these criteria might assess whether a person who had stopped studying at various points between the time of visa application and decision met the criteria, compared with a person who had stopped studying less often or for shorter periods. There was also said to be no textual or contextual reason to require the Tribunal to assess why a visa applicant had ceased studying for a period.
The First Respondent submitted that the Tribunal’s approach did not give rise to absurd or capricious results or distinguish between those affected by misfortune who were for some reason unable to study for a period and those not so affected any more than the Applicant’s preferred alternative approach involving a qualitative assessment of a person’s circumstances would do.
It was contended that while the Applicant submitted that an alternative construction of the clauses was available, he had not in fact presented an alternative construction. Rather it was suggested that the Applicant had provided an explanation of a process by which the Tribunal might come to a conclusion on whether a visa applicant had been undertaking relevant study. It was submitted that the Applicant appeared to wish to introduce into the operation of cl.101.213(1)(c) the kind of discernment and analysis discussed in Sok v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 190. However it was pointed out that Sok related to factors that the Tribunal had to consider in determining whether the lapse of time between a visa applicant finishing year 12 (or turning 18) and “commencing” studies was “reasonable”. It was acknowledged that the reference in cl.101.213(1)(c) to the commencement of studies “within … a reasonable time” plainly called for a consideration of the circumstances of the visa applicant in order that the Tribunal could determine whether a lapse of time in excess of six months was reasonable or not. However it was pointed out that no such language attended the expression “has … been undertaking”. It was suggested that the argument that the Tribunal had to consider the factors described in Sok at this second step had been made unsuccessfully in Opoku-Ware (see [49]-[50]) and that the Tribunal was not required to undertake an analysis of the visa applicant’s circumstances akin to what had been required in Sok.
The First Respondent submitted that the Tribunal was simply concerned first with the question of whether the visa applicants were undertaking a relevant course at the time of application. It was suggested (despite paragraph 42 of the Tribunal reasons) that the Tribunal “appeared” to have been satisfied that the visa applicants were undertaking a relevant course at the time of application. Secondly the Tribunal was said to have been concerned with whether the visa applicants continued to meet that requirement at the time of its decision.
The First Respondent submitted that the Applicant was “simply” taking issue with the Tribunal’s factual determination as to whether a course of study had been undertaken and that this was a matter for the Tribunal to determine. Indeed, it was submitted that the Applicant’s approach did not in fact involve a suggestion that the Tribunal had misunderstood the meaning of the phrase “has been undertaking”, because it had been “properly” conceded in written submissions that “a pause” of some significant length of time with an inadequate explanation may permit a finding that the person was not undertaking a course of study.
Insofar as the Applicant contended that the Tribunal had adopted an overly strict approach in its application of the criteria such that any short break or pause in study arising for any reason would necessarily fall outside the clause, it was submitted that this was not what the Tribunal had found. Rather, the Tribunal was said to have had regard to the facts of the case before it (at paragraph 39) and to have reached a conclusion by express reference to the “evidence presented”. This was said to emphasise the nature of the task.
The First Respondent submitted that it would have been open to the Tribunal to assess whether a visa applicant who engaged in ongoing studies through the period between the time of application and the time of a decision, but who was occasionally absent, had been undertaking a course of study. Similarly, it was said to be for the Tribunal to determine whether these visa applicants, each of whom had been absent from their course of study for over a year, had been undertaking the relevant course of study at the relevant points in time. On this basis, it was submitted that there was no error by the Tribunal in assessing the visa applicants on the “requirement” that they had been undertaking a course of study “on a continuous basis during the period”.
Consideration
For the reasons that follow I am satisfied that the Tribunal fell into jurisdictional error in its approach to the construction and application of the criteria in issue in the manner contended for by the Applicant. In essence, the Tribunal proceeded on the incorrect basis that the requirement in cl.101.221(2)(b) that an applicant “continues to satisfy the criterion in clause 101.213” and the approach taken to construction of the expression “has been undertaking” in Opoku-Ware meant that, as a matter of construction, the criteria in issue required that the Tribunal be satisfied that a visa applicant be “continuously involved” in study from the time of commencement of the course of study to the time of decision.
There is no disagreement as to the applicable principles of construction. As stated in North Australian Aboriginal Justice Agency at [11], the construction of legislation is to give effect to the ordinary meaning of the text in the wider statutory context and with reference to the purpose of the provisions. It is necessary to examine the text, context and purpose of the provisions in question. An interpretation that promotes the purpose or object of the provisions is to be preferred to a construction that would not do so, even if the latter is literally or grammatically correct (and see Opoku-Ware at [70] accepting the submissions of the applicant in Opoku-Ware at [23]-[33]).
At the time of the Tribunal decision, the Act and Regulations provided for various classes of visas, the criteria for which may be prescribed by the Regulations (see s.31(3) of the Act). A non-citizen must apply for a visa of a particular class (s.45) and, under s.47, the Minister must consider a valid visa application.
Subject to certain limitations not relevant for present purposes, if satisfied that certain conditions are met (including that the criteria prescribed by the Act or the Regulations have been satisfied) the Minister (or his or her delegate) is to grant the visa. If not so satisfied he or she is to refuse it (s.65).
The class of visa for which the visa applicants applied was the Child (Migrant) Class AH visa. That visa class contained a number of subclasses. The only subclass in issue was Subclass 101 (Child). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Regulations. At the relevant time cl.101.21 set out criteria to be satisfied at the time of application while cl.101.22 set out criteria to be satisfied at the time of decision. In this case the time of each of the visa applications was 17 April 2013. The time of the Tribunal decision was 1 March 2016.
Under cl.101.211 the visa applicant must be a “dependent” child (within the definitions in regs.1.03 and 1.05A) of an Australian citizen, permanent resident or eligible New Zealand citizen and, except in the case of a child who is incapacitated for work due to total or partial loss or bodily or mental functions, a person who has not turned 25 at the time of application.
Clause 101.213(1) recognises that some categories of children who are over the age of 18 may nonetheless be regarded as dependent children for the purposes of a Subclass 101 visa. It contains cumulative requirements as to relationship status, that there be no engagement in full-time work and, relevantly, for a visa applicant who is not incapacitated for work, that he or she “has … been undertaking” full-time study of a specified kind. Clause 101.221 requires that a visa applicant “continues to satisfy” such time of application criteria.
It is clear that such a visa is intended to provide a migration avenue for offshore children who remain dependent on their parents, as suggested in Opoku-Ware. Having regard to the requirement of dependency (however demonstrated) it would be natural to interpret the criteria in light of the conduct of the visa applicant, not only at the date of the visa application and at the date of decision, but also in the intervening period.
The time of application criterion in issue in this case is in cl.101.213. It is set out in full at [3] above. The Tribunal found that the visa applicants satisfied the requirements of cl.101.213(1)(a) and (1)(b). Paragraph 101.213(1)(c) provides:
(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.
As indicated, it is clear from the submissions for the parties that no issue is taken with the Tribunal’s finding that cl.101.213(1)(c) “is not met at the time of application”. The parties seem to be of the view that this is a “slip” as the Tribunal appeared to accept that the visa applicants were in fact studying in April 2013 (the time of the visa application), having accepted in paragraph 39 that at the time of the August 2013 bomb blasts they were both engaged in full-time study.
In issue in the present case is the Tribunal’s construction of cl.101.213(1)(c) in combination with cl.101.221(2)(b) in Schedule 2 to the Regulations. As explained in the particulars to the ground of review, the crux of the issue raised by the Applicant is whether the Tribunal misconstrued or misapplied the criteria as applicable at the time of decision as requiring a visa applicant to be “continuously” involved in study from the time the visa applicant commenced the course of study referred to in cl.101.213(1)(c) up until the time of decision.
In addition to the question of the construction of cl.101.213(1)(c) when read with cl.101.221(2)(b) as a time of decision criterion, in the particulars to the ground of review the Applicant raises the issue of whether the construction of the phrase “has … been undertaking” a full-time course of study as provided for in cl.101.213(1)(c) requires that there be no gaps in study from the time of commencement of study to the time of application when cl.101.213(1)(c) is considered as a time of application criterion.
Contrary to the First Respondent’s contentions, I am not persuaded that the “controversy” in this case is limited to a controversy over how the Tribunal applied itself to determining whether on the facts before it a person met the criteria for the grant of the visa. Rather, what is in issue is a question of construction of the criteria, in particular whether the Tribunal (incorrectly) considered that the language of the criteria in issue required “continuous” involvement in study from the time of commencement of study to the time of decision.
That the Tribunal took such an approach is clear having regard to the decision read as a whole. The Tribunal based its finding in paragraph 40 of its reasons for decision on its understanding of the construction of the words “continues” to satisfy in cl.101.221(2)(b) and “has been … undertaking” in cl.101.213(1)(c) and its understanding as to the effect of the findings in Opoku-Ware in relation to the construction of these words. The Tribunal took these requirements to mean that there could be no gaps in study. The Tribunal was not simply making a finding of fact relevant to its assessment of whether the visa applicants had been undertaking study. Rather, it proceeded on the basis that “continuous” involvement in study was necessary as a matter of construction (and see Shahi at [20]-[21] per French CJ, Gummow, Hayne and Bell JJ). The last sentence of paragraph 40 of the Tribunal reasons (set out at [24] above) must be seen in light of the Tribunal’s earlier exposition in that paragraph of its understanding that Opoku-Ware held that the words “has … been undertaking” study implied “a continuous requirement”.
That the Tribunal proceeded on this basis is reinforced by the fact that while it recited part of the visa applicants’ explanation for the pause in study in paragraph 39, it gave no consideration to such explanation in its findings or to any circumstances other than the fact of the gap in study. That the Tribunal considered itself constrained by a construction of the criteria that required “continuous involvement” in study is also consistent with the fact that in referring the matter for Ministerial intervention it accepted that there were ameliorating factors to which it clearly felt it could not have regard as a matter of construction of the criteria.
It is important to bear in mind that the time of decision criterion in cl.101.221(2)(b) requires that a visa applicant “continues to satisfy” the time of application criterion in cl.101.213(1)(c). As Allsop J (as his Honour then was) pointed out in Rao v Minister for Immigration and Multicultural Affairs [2001] FCA 1755 at [19], albeit in relation to a different time of application criterion and a different class of visa (a student visa), the proper construction of a time of decision criterion that “adopt[s]” a time of application criterion “is not without difficulty” and “the word “continues” may cause difficulty”. As recognised in Rao at [20] and Opoku-Ware at [63] the use of the present tense (and in the context of a Subclass 101 visa the purpose of providing a migration path for genuinely dependent children) means that this requirement must be met at the time of decision. As explained in oral submissions, this was the submission the Applicant was making in contending that cl.101.221(2)(b) did not speak to the whole time period. Moreover, as the Full Court pointed out in Xiang at [9] “the word to be construed is the verb “continues” and not the adjective “continuing”.”
In Rao, Xiang and Liang what was in issue was whether the word “continues” in a time of decision criterion limited the time at which a visa applicant had to meet a time of application criterion to which it applied to the specific times of application and decision or whether the period between these times also had to be considered. In Xiang the Full Court made the point (at [9]) that the meaning of “continues” “cannot be considered in isolation” and “must be gathered from the context”. The Court in Xiang had regard to the fact that, in the context of the particular visa criterion in question in that case, the word “continues” was not concerned with any activity on the part of the visa applicant, but rather with the visa applicant’s status, which had a temporal condition. It was in that context that the Full Court was of the view that a visa applicant “continues” to have the status in question (that of a special need relative) if he or she still has that status at the time of decision. On this basis it was said not to be necessary to consider whether the applicant satisfied that criterion throughout the intervening period (at [8]-[10]). The importance of the context in which a criterion such as is contained in cl.101.221(2)(b) appears is also recognised by the Full Court’s suggestion in Xiang (at [10]) that while its consideration was “probably” inconsistent with the decision in Rao, the judgment in that case “may be supported because the word “continues” was used in a different context”.
It is clear that the use of the expression “continues to satisfy” in a time of decision criterion does not in all cases limit the enquiry to the dates of application and decision. In a context where a visa applicant must have been undertaking an activity of full-time study at the time of application and must show that at the time of decision, he or she continues to satisfy the requirement to have been undertaking such study, as Logan J pointed out in Liang at [51], deciding whether a visa applicant “continues to satisfy” time of application criteria will “necessarily involve examining what that applicant has been doing in whatever interval has elapsed between the time of application and the time of decision. The conclusion one reaches as to the position which obtained at the time of application in respect of these criteria may differ from that reached at the time of decision because of what has occurred in the interval.”
Logan J distinguished the approach taken by the Full Court in Xiang as relating to a question of “status”, rather than “activity” (at [46]-[47]). The Applicant conceded that in this case what was in issue was an activity and that the intervening period had to be considered, consistent with both Xiang and Liang.
However the reference in Liang to a need to scrutinise whether an activity was “maintained in the interval” (at [47]) does not warrant reading into cl.101.213(1)(c) (read with cl.101.221(2)(b)) a requirement that the study be “continuous”. Such an approach, which the Tribunal took in this case, mistakenly equates the ordinary and natural meaning of the different notions of “continues [to satisfy]” and “continuously [satisfies]”. While the notion of “continuously” may in its ordinary sense imply unbroken or uninterrupted activity, the word “continues” does not necessarily imply continuity without suspension or interruption. The Macquarie Dictionary definitions of “continue” (cited in Liang at [47]) include not only “to go forwards or onwards in any course of action; keep on” but also “to go on after suspension or interruption” in relation to its use as an intransitive verb. When used as a transitive verb “continue” means not only “to go on with or persist in” but also “to carry on from the point of suspension or interruption”.
Bearing in mind the purpose of the visa class and the nature of the criteria in issue, the natural meaning of the word “continues” in the context of cl.101.221 and in relation to an activity requires the Tribunal to consider a visa applicant’s conduct in the interval between the time of application and time of decision. Such an approach does not compromise the purpose of the criteria for a Child visa or of the Act or Regulations generally (see Berenguel at [26]). However the requirement that study be “continuous” is not necessitated by the wording of cl.101.221. Clause 101.221(2)(b) speaks to the time of decision, not to the whole time period from the time of application until the time of decision (albeit that where there is an activity in issue regard must be had to the intervening period). It does not warrant the imposition of a requirement of uninterrupted study prior to that time.
Nor is a requirement of “continuity” necessitated by a consideration of cl.101.213(1)(c), either in itself or as adopted by cl.101.221. As the Applicant submitted, a construction of these criteria to mean “continuous involvement” in study without any pause or gap is not necessitated by the wording of the criteria. There is no textual reason to restrict “has … been undertaking” full-time study to continuous involvement, having regard to the nature of “study”. The words “continuous” or “continuously” do not appear in either clause. These criteria, in relation to a visa for an adult dependent child, are susceptible of a construction that allows for gaps or pauses in the “study” required by cl.101.213(1)(c).
It would have been simple to draft cl.101.213(1)(c) (and/or cl.101.221(2)(b)) in a manner that imported a “continuous” or “continuously” requirement if such an interpretation had been intended (see Shahi at [35]-[36]). The failure to take such an approach suggests that the requirements of “has … been undertaking” and “continues to satisfy” do not necessarily import a requirement of “continuous involvement” in study. Further, such an interpretation is capable of operating in a capricious and unjust way, as in the example suggested by the Applicant (and see Shahi at [38]) and fails to have regard to the essentially intermittent nature of study.
Moreover Opoku-Ware is not authority for the proposition that there must be a “continuous” involvement in study from the time of commencement to the time of decision. In Opoku-Ware the visa applicant had stopped studying before the time of decision. What was in issue was whether a person who had stopped studying at the time of decision could nonetheless be said at that time to meet the requirement that he or she “continues to satisfy” the cl.101.213(1)(c) requirement that he or she “has been undertaking” full time study.
Relevantly, in Opoku-Ware the applicant challenged the Tribunal’s decision on two bases. First, it was submitted that, properly construed, cls.101.213 and 101.221 were satisfied if the visa applicant was studying a course at the time of application and studied that course to completion prior to the time of decision (see Opoku-Ware at [45]). Secondly, it was submitted that undertaking multiple courses was capable of satisfying the requirements of the criteria and that where a visa applicant had finished a course of study prior to the time of decision, but proposed to commence another, the Tribunal had to ask itself whether the delay in commencing the next course was reasonable (see Opoku-Ware at [46]).
The Tribunal in Opoku-Ware had proceeded on the basis that the criteria required the visa applicant to demonstrate that he was actually undertaking a full-time course “at the time of the decision” rather than, for example, providing a reasonable explanation as to why further studies had not been commenced at that time.
In that factual matrix, Judge Lloyd-Jones found no jurisdictional error in the Tribunal’s approach. His Honour pointed to the fact that phrase “has been undertaking” in cl.101.213(1)(c) was expressed in the present perfect continuous tense, a tense which was used to describe an action that had already commenced and remained ongoing (at [75]). While it was accepted that in limited circumstances, this tense could be used to describe an action that had stopped (although the action itself may be unfinished), it was also pointed out that where this tense was used in such context, there was a result or effect therefrom that was expressly noted. There was said to be no word or words in cl.101.213(1)(c) to support a conclusion that the present perfect continuous tense was used to describe an action (relevantly the undertaking of further full-time studies) “that has recently stopped” (at [77]). In other words it did not extend to a situation where a visa applicant’s study had ended before the time of decision. Rather, Judge Lloyd-Jones concluded that the clause required that the applicant continue to satisfy the criterion in cl.101.213(1)(c) at the time of decision. His Honour also pointed to the fact that the verb “continues” in cl.101.221(2)(b) was expressed in the present tense and concluded that on this construction, it must be the case that the applicant is still undertaking studies at the time of the decision (at [78]).
Consistent with this approach, in this case, at the time of decision the studies of the visa applicants had “already commenced and remained ongoing”, both visa applicants were still undertaking studies at the time of the decision and, in contradistinction to the situation in Opoku-Ware, their studies had not come to “an end … within the decisional time frame”.
In Opoku-Ware the second aspect of the applicant’s challenge to the Tribunal decision was rejected on the basis that there was no foundation in the language in the Regulations to suggest that a visa applicant who was not studying at the time of the decision, but proposed to undertake a further course, nevertheless met the criteria.
As his Honour stated at [84]:
That is to say that, at the time of the application (sic), the visa applicant must still be undertaking a full-time course of study. Having regard to the Court’s findings in respect of the use of the present perfect continuous tense, the language of the clauses does not permit an end to the study within the decisional time frame (emphasis added).
It appears that the reference to the time of application was intended to refer to the time of decision. Having taken this approach it was not necessary to determine whether in circumstances where a visa applicant was not studying at the time of decision, the delay in re-commencing study was reasonable. Hence Judge Lloyd-Jones did not have to consider whether the principles in Sok would be applicable as the visa applicant had argued.
However Opoku-Ware was not considering whether the construction of these criteria allowed for the possibility of a gap or pause in studies in the interim, provided the visa applicant was undertaking studies at the time of the decision. While Judge Lloyd-Jones accepted that it would be inconsistent to read the requirement in cl.101.213 (when read together with cl.101.221) to apply at any time other than at the time of decision (at [79]) and that the construction of the clauses limited the grant of visas of this type to children over the age of 18 who were currently undertaking studies after the completion of year 12 (or its international equivalents) consistent with the purpose of the subclass (at [82]), this does not support a construction that allows for no gaps or pauses in study prior to that time.
Opoku-Ware does not stand for the proposition that a visa applicant must be “continuously involved” in study from the time he or she commenced his or her study to satisfy the criteria. Rather, it shows that the action of studying must have commenced by the time of application and that the visa applicant must be studying at the time of the decision. The approach taken in Opoku-Ware does not establish or support the proposition that a “continuous involvement” in study in the interim, without a pause, is required as a matter of construction.
In my view, and as the Applicant submitted, the natural meaning of the phrase “has, since turning 18… been undertaking” in cl.101.213(1)(c), both in itself and read with the requirement in cl.101.221(2)(b) that a visa applicant “continues to satisfy” requires a decision-maker considering the criteria at the time of decision to look at the time period from the visa applicant commencing study within cl.101.213(1)(c) until the time of the decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that the visa applicant has been undertaking relevant study in that period. This will, as Logan J recognised in Liang at [51], necessarily involve examining what the applicant has been doing in that interval. Where the “activity” in question is study, such an enquiry must necessarily have regard to the fact that, of its nature, the activity of study (as distinct, for example, from “enrolment”) is intermittent.
The Tribunal in this case did not adopt such a construction. I do not accept the First Respondent’s contention that it was applying the criteria in issue and that the Applicant was in reality merely taking issue with how the Tribunal applied such criteria. On the contrary, it is clear reading the Tribunal decision as a whole that the Tribunal considered itself bound to find that if there was not “continuous” involvement in study in the relevant period then the criterion in cl.101.213(1)(c) read with cl.101.221(2)(b) could not be met. It misunderstood and misapplied these criteria as implying a “continuous” study requirement based on the grammatical approach taken to “has been undertaking” in Opoku-Ware when that case was addressing the need for the study to remain ongoing, in the sense of not having ceased, at the time of the decision (at [75]-[78]).
Insofar as it was submitted that the Applicant could point to no authority supporting a “qualitative” approach to assessing whether a person “has been undertaking” a course of study, in a sense this overlooks the remarks in Liang. In any event, novelty of a ground is no bar to an applicant succeeding. The First Respondent did not point to any authority which compels a conclusion to the contrary. In that respect I note that if, contrary to my view, Opoku-Ware is to be taken as authority for the proposition that there must be “continuous” study (in the sense of no pauses or gaps) in the interval between commencement of study and the time of decision, I would regard it as clearly wrong and would not follow it. Such a construction would, as the Applicant contended, not accord with the natural meaning of the criteria read in context and having regard to the purpose of the visa class in issue.
It is sufficient for the purposes of this decision to find that the Tribunal misconstrued and misapplied cl.101.213(1)(c) when read with cl.101.221(2)(b) as requiring a visa applicant to have been “continuously involved” in study from the time of commencement referred to in cl.101.213(1)(c) up to the time of decision. It is not necessary to determine the extent of the qualitative assessment required in enquiring as to whether, in that time, the visa applicant’s conduct was appropriately characterised as having been undertaking a full-time course of study. Clearly however the Tribunal ought to have regard to all relevant circumstances including, in particular, the nature and duration of a gap in study and any explanation for such a gap.
The Tribunal failed to ask the right question. It made no such enquiry. While it referred to factors that may have been of potential relevance in such an enquiry in paragraph 39 (and in the context of referring the matter for consideration by the Minister), it did not take into account matters other than the fact of the absence of continuous involvement in study in deciding that the criterion in cl.101.213(1)(c) as adapted by cl.101.221(2)(b) was not met. The last sentence of paragraph 40 of the Tribunal reasons is not simply an example of looseness of language to be viewed in the manner described in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6. The Tribunal’s approach is clear from the language of the sentence, from paragraph 40 and from the decision read as a whole. It is consistent with the fact that when the Tribunal referred the matter for Ministerial consideration under s.351 of the Act it was clearly of the view that it was precluded from taking into account any explanation for the absence of continuous involvement in study.
The Applicant has established jurisdictional error. The matter should be remitted for reconsideration according to law.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 20 December 2017
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