Kabir v Minister for Immigration
[2010] FMCA 132
•5 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KABIR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 132 |
| MIGRATION – Migration Review Tribunal – student visa – whether completed substantial part of course – whether undertaken at least five years study in English – whether jurisdictional error – discretion to refuse prerogative relief. WORDS AND PHRASES – “substantial” – “substantial part” – “successful completion” – “year” – “of study”. |
| Acts Interpretation Act 1901 (Cth) Calendar (New Style) Act, 1750 (UK), s.1 Interpretation Act 1984 (WA), ss.5, 62(1) Migration Act 1958 (Cth), s.476 Migration Regulations1994 (Cth), regs.1.03, 1.15F, 2.26A(7A), Schedule 2, cls.105.230, 126.228, 132.212; 134.222, 137.111, 138.111; 139.111, 160.213, 160.217, 161.111, 162.212(2), 162.212(3), 163.212(a), 163.215, 485.228, 496.111, 496.215(2)(a)(i) and (b)(i) and (iii), 570.111, 571.111, 573.111, 574.111, 575.111, 573.223(2)(a)(i)(A), 576.111, 862.216(2)(a)(i) and (b)(i) and (iii), 863.217(2)(a)(i) and (b)(i) and (iii), 880.229, Schedule 5A, cls.5A309, 5A504(1)(a)(ii), 5A504(1)(d)(iii), 5A504(1)(e)(ii) |
| Alagaretnam v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 91 ALD 796; [2006] FCA 367 Alam 071956194 [2008] MRTA 1110 Commissioner for Superannuation v Scott (1987) 71 ALR 408 Dai v Minister for Immigration & Citizenship (2007) 165 FCR 458; [2007] FCAFC 199 Jiang v Minister for Immigration & Anor [2007] FMCA 215 Jiang v Minister for Immigration & Anor [2007] FCA 907 Lun Zhao 071238370 [2007] MRTA 373 Merkbawi 071703401 [2007] MRTA 711 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Nguyen v Minister for Immigration [2006] FMCA 1611 Palser v Grinling [1948] AC 291 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Bonny [1986] 2 Qd R 80 Seneviratne v Minister for Immigration & Anor [2009] FMCA 907 Singh 0805558 [2007] MRTA 1644 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union (1979) 27 ALR 367 Youssef 071703787 [2008] MRTA 796 Yu Wu 0803867 [2009] MRTA 2274 |
| A Waugh, Time. From Micro-Seconds to Millennia: A Search for the Right Time (London: Headline Book Publishing, 1999) Osborn’s Concise Law Dictionary (10th Edn) (London: Sweet and Maxwell, 2005) The Shorter Oxford Dictionary on Historical Principles, (Oxford: Clarendon Press, 1973) |
| Applicant: | AHSANUL KABIR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 220 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 25 February 2010 |
| Date of Last Submission: | 25 February 2010 |
| Delivered at: | Perth |
| Delivered on: | 5 March 2010 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 220 of 2009
| AHSANUL KABIR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Mr Kabir, applies to the Court under s.476 of the Migration Act 1958 (Cth)[1] for a review of the Migration Review Tribunal[2] decision dated 22 October 2009[3] which affirmed a delegate’s[4] decision[5] not to grant Mr Kabir a Student (Temporary) Class TU Visa.[6]
[1] “Migration Act”.
[2] “Tribunal”.
[3] “Tribunal Decision”.
[4] “Delegate”
[5] “Delegate’s Decision”.
[6] “Student Visa”.
Issue
The issue is whether the Tribunal Decision may be subject to prerogative relief on the basis of jurisdictional error on grounds alleged by Mr Kabir in his amended application, namely:
a)whether he has completed a substantial part of a course; or
b)whether he has undertaken at least five years of study in English in Australia.
Background facts
Mr Kabir, is a citizen of Bangladesh. He first entered Australia on 17 June 2001 on a Subclass 560 Student Visa, and was granted a further Subclass 560 Student Visa on 27 June 2001 valid until 30 July 2003.[7]
[7] Court Book (“CB”) 129.
Mr Kabir was enrolled at the Perth Institute of Business and Technology[8] in a one year Diploma of Business course which he told the Tribunal commenced on 24 June 2001.[9] Mr Kabir told the Tribunal that he did not complete the Diploma of Business until December 2003 as a consequence of personal difficulties,[10] and during which time Mr Kabir returned to Bangladesh on two occasions for a total period of approximately two months.[11]
[8] “PIBT”.
[9] CB 153.
[10] CB 153-154.
[11] CB 130. Mr Kabir travelled outside of Australia from: 14 February 2002 to 7 March 2002; and 1 May 2002 to 6 June 2002.
The evidence before the Tribunal concerning the Diploma of Business course, apart from what was said to the Tribunal by Mr Kabir during the hearing, was as follows:
a)that the period of study was from September 2001 to February 2004;[12] and
b)that he was enrolled in units in the Diploma of Business:
i)in the second and third semesters of 2001;
ii)in the second and third semesters of 2002;
iii)in the first, second and third semesters of 2003; and
iv)in the first semester of 2004.[13]
[12] CB 5.
[13] CB 75.
In relation to the one unit studied in the first semester of 2004, namely, Management I, it is noted that no grade was awarded and the applicant’s result was zero percent.
At hearing before this Court the applicant asserted that he was also enrolled in the Diploma of Business in the third semester of 2006 at PIBT. That evidence is supported by a Statement of Academic Record from PIBT indicating that he enrolled in Management I in the third semester of 2006, but again no grade was awarded and the result was listed as zero percent.[14] However, that evidence was not before the Tribunal.
[14] Applicant’s Affidavit of 13 January 2010, Annexure D (“Mr Kabir’s Affidavit”).
On 28 July 2003 Mr Kabir was granted a Bridging Visa until 2 October 2003 when he was granted a Subclass 572 Student Visa valid until 11 May 2005. On 11 May 2005 Mr Kabir was granted a Subclass 573 Student Visa valid until 15 March 2008.[15]
[15] CB 130.
Mr Kabir enrolled in a Certificate III in Hospitality (Commercial Cookery) at the Australian School of Tourism and Hotel Management[16] commencing on 9 February 2004. Mr Kabir did not complete the Certificate III course, and left ASTHM in December 2004. Mr Kabir says that he studied for two semesters in 2004 at ASTHM.[17] Mr Kabir specifies the period of study for the certificate III course as being from 9 February 2004 to 17 December 2004.[18] Mr Kabir told the Tribunal that he “left in the middle of the course in December 2004.”[19]
[16] “ASTHM”.
[17] CB 153 and 72.
[18] CB 5 and 72.
[19] CB 153.
Mr Kabir then enrolled in a Bachelor of Business at the University of Notre Dame, which course was scheduled to run from 21 February 2005 to 20 December 2007. Mr Kabir did not perform well academically and he told the Tribunal that he left the University of Notre Dame “towards the end of 2005.”[20] His enrolment at the University of Notre Dame was terminated. Mr Kabir says that his lack of academic performance was due to the death of his uncle and grandmother, and an assault leaving his father partially paralysed, all of which occurred in Bangladesh.[21] Mr Kabir says that he completed one academic year at the University of Notre Dame.
[20] However, in a letter to the Department Mr Kabir says he left the University of Notre Dame in “2006”, without being more specific as to a date: CB 72.
[21] CB 154 and 72.
Mr Kabir then re-enrolled at ASTHM, but in an Advanced Diploma of Hospitality Management which was scheduled to run from 24 April 2006 until 4 July 2008. Mr Kabir says he was subjected to bullying, and his enrolment was cancelled by ASTHM’s managing director after the managing director returned from overseas and objected to him being a student at ASTHM, so he left ASTHM “after only a couple of months”.[22]
[22] CB 154 and 72-73.
In February 2007 Mr Kabir enrolled in a Bachelor of Business Degree course at Edith Cowan University[23] which was scheduled to run from 16 February 2007 until 31 December 2009.[24] On 1 March 2007 Mr Kabir’s Student Visa was cancelled due to his poor academic record. On 20 March 2007 Mr Kabir was granted a Bridging Visa following an application for a review of the decision to cancel his Student Visa. As a result of the Student Visa being cancelled Mr Kabir claimed he was “mentally unstable” and did not enrol in the second semester at ECU in 2007.[25] No evidence was before the Tribunal as to Mr Kabir’s attendance at ECU in the first semester of 2007, or the results of his attendance.
[23] “ECU”.
[24] CB 154 and 73.
[25] CB 130, 154 and 73.
Mr Kabir’s application for review of the cancellation of his Student Visa was refused by the Tribunal and he then applied to this Court for judicial review. Whilst judicial review was pending Dai v Minister for Immigration & Citizenship[26] was decided, and on the basis of that judgment, an administrative decision was made that Mr Kabir’s Student Visa granted on 11 May 2005 was reinstated with effect from 29 February 2008.[27] On 23 March 2007 Mr Kabir had been awarded the Diploma of Business by PIBT.[28]
[26] (2007) 165 FCR 458; [2007] FCAFC 199.
[27] Mr Kabir’s Affidavit, Annexure K.
[28] Mr Kabir’s Affidavit, Annexure A.
Mr Kabir re-enrolled at ECU in February 2008 for a Bachelor of Business Degree scheduled to run from 25 February 2008 until 31 December 2010. There is no evidence of Mr Kabir’s attendance at ECU or his results following his re-enrolment in February 2008.
Mr Kabir’s Student Visa was due to expire on 15 March 2008, and on 14 March 2008 Mr Kabir applied for a further Subclass 573 Student Visa, and on that same date was granted a Bridging Visa.[29]
[29] CB 1-16 and 131.
In July 2008 the Delegate refused the grant of the Student Visa.[30]
[30] Delegate’s Decision, CB 80-85.
On 1 August 2008 Mr Kabir applied to the Tribunal for a review of the Delegate’s Decision.[31] On 22 October 2009 the Tribunal affirmed the Delegate’s Decision. The Tribunal Decision found that Mr Kabir did not meet the requirements of the provisions of cls.5A504(1)(a)(ii), 5A504(1)(d)(iii) or 5A504(1)(e) of Schedule 5A of the Migration Regulations1994 (Cth).[32] Therefore, Mr Kabir did not satisfy cl.573.223(2)(a)(i)(A) of the Migration Regulations.[33]
[31] CB 86-93.
[32] “Migration Regulations”.
[33] CB 148 and 155-156.
Tribunal Decision
The findings in the Tribunal Decision are as follows:
The Schedule 5A requirements
36.In the present case, the delegate found that the applicant did not meet cl.573.223(2)(a)(i)(A). The delegate found that the applicant did not have the requisite English language proficiency as specified in cl.5A504.
37.To satisfy the English language proficiency requirements for assessment level 4 to which he is subject, the applicant is required to satisfy one of the stipulated conditions in 5A504.
38.The relevant, available sections and conditions are:
5A504(1)(a)(ii) which states:
The applicant must give evidence that:
(a) the applicant:
(ii)achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 6.0 or the required score in an English language proficiency test that is specified in a Gazette Notice for clause 5A102;
While there was no IELTS test provided to the primary decision maker, the applicant has submitted to the Tribunal the results of an IELTS test taken 30 August 2008, however in that test, the applicant achieved an Overall Band Score of 5.5 therefore this does not satisfy 5A504(1)(a)(ii) which required an Overall Band Score result of at least 6.
5A504(1)(d)(iii) which states:
(iii)as the holder of a student visa – successfully completed a substantial part of a course (other than a foundation course) that:
(A)was conducted in English; and
(B)was leading to a qualification from the Australian qualifications Framework at the Certificate IV level or higher.
The applicant made no claims to have satisfied this section.
5A504(1)(e), which states:
(e) the applicant has:
(i)a level of English language proficiency that satisfies the applicant’s proposed education provider; and
(ii)at least 5 years of study in English undertaken in 1 or more of the following countries:
(A)Australia;
(B)Canada;
(C)New Zealand;
(D)South Africa;
(E)the Republic of Ireland;
(F)the United Kingdom;
(G)the United States of America.
The applicant stated that he had previously been studying at Edith Cowan University and believed they were satisfied with his level of English language proficiency, however his evidence at the Tribunal hearing was that he had completed a Diploma of Business at Perth Institute of Business and Technology which had been a one-year course (1 year). He had completed approximately 10 months of a Certificate III in Hospitality at the Australian School of Tourism and Hotel Management (10 months) before studying a Bachelor of Business at Notre Dame for approximately 10 months in 2005 (10 months). He enrolled and studied for a couple of months in a hospitality course at ASTHM (say 3 months) and then studies at Edith Cowan University in a Bachelor of Business course from 25 February 2008 until notified his visa was cancelled in March 2008 (say 1 month). From this evidence, it is apparent that the applicant has not undertaken five years of study in aggregate since arriving in Australia and therefore does not satisfy 5A504(1)(e).
39.On the basis of the above, the Tribunal finds that the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 573 and Assessment Level 4 to which he is subject, in relation to the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake (cl.5A504). Accordingly, the applicant does not satisfy the requirements of cl.573.222(2)(a)(i)(A).
CONCLUSIONS
40.As the Tribunal has found the applicant does not meet an essential requirement of cl.573.223, and as no evidence has been provided on which the Tribunal could be satisfied that the applicant meets the criteria for any of the other Student (Temporary) (Class TU) visa subclasses, the decision under review must be affirmed.
DECISION
41.The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.[34]
[34] CB 155-157.
Application to this Court
On 26 November 2009 Mr Kabir lodged an application with this Court seeking judicial review of the Tribunal Decision. An amended application was filed on 22 January 2010 in the following terms:
1.The Migration Review Tribunal made a jurisdictional error in denying the Applicant's application for a Student (Temporary) (Class TU) visa in failing to consider all the facts and law related to the Applicant's application particularly:
(a)that the Applicant had successfully completed a substantial part of a course leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher pursuant to cl 5A504(1)(d)(iii); and
(b)that the Applicant had at least 5 years of study in English undertaken in Australia pursuant to cl 5A504(1)(e)(ii)
in that the reasons revealed an error in the interpretation of the applicable law or in the application of that law to the facts.
Mr Kabir seeks final orders in the nature of prerogative relief, and costs.
Statutory scheme
The Student Visa for which Mr Kabir applied was a Subclass 573 Higher Education Sector Visa. The relevant criteria for this Student Visa are set out in Part 573 of Schedule 2 to the Migration Regulations, relevantly cl.573.223. Clause 573.223 provides as follows:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a) for an applicant who is not a person designated under regulation 2.07AO:
(i) the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 573 and the assessment level to which the applicant is subject, in relation to:
(A) the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake; and …
By reason of cl.573.223(2)(a) an applicant must provide evidence in accordance with the requirements in Schedule 5A to the Migration Regulations. The provisions of cls.5A504(1)(d)(iii) and 5A504(1)(e) of Schedule 5A of the Migration Regulations, which are relevant to this application, are set out in the findings of the Tribunal Decision above.
Jurisdictional error
A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[35]
[35] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
An error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal's exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[36]
Ground 1(a)
[36] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
The ground
Mr Kabir alleges that the Tribunal made a jurisdictional error in denying his application for a Student Visa (more correctly affirming the Delegate’s Decision) in failing to consider all the facts and law related to the application, and particularly, that he had successfully completed a substantial part of a course leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher pursuant to cl.5A504(1)(d)(iii) of the Migration Regulations, in that the reasons revealed an error in the interpretation of the applicable law or in the application of that law to the facts.
Mr Kabir’s submissions
Mr Kabir argues that:
a)the Tribunal had before it evidence that:
i)he had enrolled and commenced studies in a Bachelor of Business Degree at ECU, and that ECU was satisfied with his level of English language proficiency; and
ii)he had completed a Diploma of Business at the PIBT;
b)the Tribunal ignored relevant material, namely that the PIBT granted the Diploma of Business to Mr Kabir in March 2007, which was less than two years before the date of the Student Visa application, which was lodged on 14 March 2008, at which time Mr Kabir was the holder of a Student Visa and had successfully completed a substantial part of a course that was conducted in English, and which led to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher, in accordance with cl.5A504(1)(d)(iii) of the Migration Regulations;
c)the phrase “successfully completed a substantial part of a course” in cl.5A504(1)(d)(iii) of the Migration Regulations includes full completion of a course, including a diploma. Mr Kabir cites:
i)Youssef 071703787[37] where he says the applicant, as holder of a student visa, completed the Graduate Certificate in Business Administration at CSU less than two years before the date of the visa application, which was conducted in English, and the Tribunal applied cl.5A504(1)(d)(iii) of the Migration Regulations and found that the applicant met the criteria for a subclass 573 Higher Education Sector visa, and says that the Tribunal should have made the same finding in his case; and
ii)Merkbawi 071703401[38] in which the Tribunal, he says, found an applicant who had fulfilled the requirements for an Advanced Diploma of Accounting at the Academy of Social Sciences while having a student visa, and less than two years prior to the student visa application, as having met the requirements of cl.5A504(1)(d)(iii);
d)the Tribunal ignored relevant material, namely that when Mr Kabir enrolled at ECU for his Bachelor of Business Degree he was in his second year of university, and had completed one semester at ECU when his Student Visa was cancelled, and the reason why ECU accepted Mr Kabir as having “Other Form of Testing which Satisfies the Institution” for his English Type and that his English Test Score was “Satisfactory” was because ECU recognised that a diploma from PIBT is a direct pathway to second year university at ECU;
e)when Mr Kabir made his application for a Student Visa in March 2008 while enrolled at ECU, he was deemed to have completed the first year of his degree at ECU by reason of this arrangement between ECU and PIBT;
f)alternatively, Mr Kabir had, less than two years before the date of the Student Visa application, as the holder of a Student Visa, successfully completed a substantial part of a course (other than a foundation course) that was conducted in English and was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher when he enrolled as a second year student at ECU for a Bachelor of Business degree which would normally take three years to complete, and in this regard cites Alam 071956194[39] which he argues was a case where the Tribunal accepted that successfully completing three out of ten units towards the Certificate IV in Business (Management), or 30% of a Certificate IV course, amounted to a “substantial part” of a course, and that that standard should have been applied to him in this case by the Tribunal.
[37] [2008] MRTA 796 (“Youssef”).
[38] [2007] MRTA 711 (“Merkbawi”).
[39] [2008] MRTA 1110 (“Alam”).
Minister’s submissions
The Minister argues that:
a)Youssef does not support Mr Kabir’s claim of jurisdictional error because in Youssef the applicant had applied for a further visa on 14 March 2007, and had completed a Graduate Certificate in October 2006, being awarded the Graduate Certificate in May 2007 on the basis of successful study during the period May 2004 until October 2006. Therefore, in the two years prior to the applicant applying for a further student visa, he had successfully completed a substantial part of his course between March 2005 and October 2006, namely, approximately 65% of his course;
b)Merkbawi does not support Mr Kabir’s claim of jurisdictional error because in Merkbawi the applicant had applied for a student visa on 1 May 2007. The relevant two year period was therefore May 2005 to April 2007. The documents submitted by the applicant to the Tribunal in Merkbawi demonstrated that he had fulfilled the requirements for a Advanced Diploma of Accounting during the period 18 April 2005 to 23 March 2007. The applicant in Merkbawi therefore met the requirement to have successfully completed a substantial part of his course within the two years prior to the visa application because he had completed almost the whole of the course within the two year period prior to his Student Visa application;
c)the PIBT Statement of Academic Record shows that Mr Kabir successfully completed the Diploma of Business by the end of semester three in 2003 (or possibly early 2004), and the fact that he was not awarded his Diploma until 2007 does not affect when he successfully completed the course, which was in late 2003 (or perhaps early 2004), and consequently he did not therefore successfully complete a substantial part, or indeed any part, of the course less than two years before the date of his Student Visa application;
d)the decision in Alam does not assist Mr Kabir because the Tribunal in Alam did not in fact base its decision upon the applicant successfully completing 30% of his Certificate IV course, rather, the applicant had also successfully completed 12 units of the 30 units required for the Certificate III course leading to the Certificate IV course and the Tribunal considered the completion of 12 out of 30 units (40%) meant that the applicant had successfully completed a substantial part of a course within the two years prior to his Student Visa application;
e)even if successfully completing the first year of a Bachelor of Business degree course can be regarded as successfully completing a substantial part of a course (being 33.33%) that does not avail Mr Kabir in the present case. That is because he did not successfully complete the first year within the two years prior to his visa application. Rather, ECU gave him an exemption from completing the first year of the course on the basis of his having been awarded the Diploma of Business which he had successfully completed at PIBT in late 2003 or early 2004;
f)therefore, the Tribunal made no jurisdictional error in terms of ground 1(a) by failing to consider that Mr Kabir had successfully completed a substantial part of a course pursuant to cl.5A504(1)(d)(iii) of Schedule 5A of the Migration Regulations.
The Minister also notes that Mr Kabir did not make any claims to the Tribunal to have satisfied cl.5A504(1)(d)(iii).[40] Because of the manner in which the Court has dealt with the application it is unnecessary to deal with the effects of Mr Kabir’s failure to make such a claim, or his failure to disagree with suggestions made by the Tribunal that he did not meet relevant visa criteria.[41]
[40] Tribunal Decision, CB 156 at para.38.
[41] At CB 155 the Tribunal says that Mr Kabir agreed that he failed to meet relevant visa criteria, but the true position appears to be that he did not disagree: see the Affidavit of Daniel Matheus Estrin affirmed 19 February 2010 at paras.6-9.
Consideration
Authorities with respect to the meaning of “substantial” are collected in Commissioner for Superannuation v Scott.[42] The Full Court of the Federal Court there considered the leading authorities,[43] from which the following can be drawn:
a)“substantial” or “substantially” will draw meaning from the context in which the word appears;[44]
b)in the context of the phrase “wholly or substantially dependent” in superannuation legislation, “substantially” meant “in the main” or “essentially”;[45]
c)in the phrase “substantial portion of the whole rent” the phrase requires comparison with the whole rent, and in that connection “substantial” is not the same as “not unsubstantial”, that is, it is not just enough to avoid the “de minimus” principle;[46]
d)a primary meaning of “substantial” is “equivalent to considerable, solid or big” in the sense of “a substantial fortune, a substantial meal, a substantial man, a substantial argument or ground of defence”;[47]
e)in applying meaning to the word “substantial”, “it must be left to the discretion of the Judge of fact to decide as best he can according to the circumstances in each case”;[48]
f)a court fixing percentages as a legal measure of the meaning of “substantial” goes beyond the power of the judiciary and plays the part of a legislator;[49] and
g)“the word ‘substantial’ is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase ‘substantial loss or damage’, it can, in an appropriate context, mean real or of substance as distinct from the ephemeral or nominal. It can also mean ‘large’, ‘weighty’ or ‘big’. It can be used in a relative sense or can indicate an absolute significance, quantity or size.”[50]
[42] (1987) 71 ALR 408 (“Scott”) at 411-413 per Fisher and Spender JJ, with whom Pincus J agreed at 416.
[43] Palser v Grinling [1948] AC 291 (“Palser”); Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union (1979) 27 ALR 367 (“Tillmanns Butcheries”) and Re Bonny [1986] 2 Qd R 80 (“Bonny”).
[44] Scott at 411 per Fisher and Spender JJ and Bonny at 81-82 per Ambrose J.
[45] Scott at 411 per Fisher and Spender JJ and Bonny at 82 per Ambrose J.
[46] Palser at 317 per Viscount Simon, cited in Scott at 411 per Fisher and Spender JJ.
[47] Palser at 317 per Viscount Simon, cited in Scott at 411-412 per Fisher and Spender JJ.
[48] Palser at 317 per Viscount Simon, cited in Scott at 412 per Fisher and Spender JJ.
[49] Palser at 317 per Viscount Simon, cited in Scott at 412 per Fisher and Spender JJ.
[50] Tillmanns Butcheries at 382 per Deane J, cited in Scott at 412 per Fisher and Spender JJ.
What the authorities make clear is that in determining what is or is not “substantial” a court or tribunal exercises discretion having regard to the context in which the word “substantial” appears in the relevant legislative provisions.
In Seneviratne v Minister for Immigration & Anor[51] this Court held that:
a)a decision as to whether an applicant had successfully completed a substantial part of a degree was a matter of fact;[52]
b)the Tribunal had not misunderstood the academic transcript or failed to consider some part of the transcript that would establish that the applicant had completed more of the points necessary for the relevant degree than had been assessed by the Tribunal;[53] and
c)the Tribunal did not fall into jurisdictional error when it decided that the applicant’s evidence of successful completion of 21 out of 72 points towards a Bachelor of Legal Studies was not evidence of successful completion of a substantial part of a course.[54]
[51] Seneviratne v Minister for Immigration & Anor [2009] FMCA 907 (“Seneviratne”).
[52] Seneviratne at para.48 per Scarlett FM.
[53] Seneviratne at para.45 per Scarlett FM.
[54] Seneviratne at para.49 per Scarlett FM. Twenty-one out of 72 points as a percentage is 29.17%.
With respect to the decisions of the Tribunal in Youssef, Merkbawi and Alam:
a)none of them assist Mr Kabir for the reasons set out in the Minister’s submissions above, which the Court accepts in relation to the application of those decisions to Mr Kabir’s circumstances;
b)each is simply a determination by the Tribunal having regard to the particular facts before it, and therefore of no particular precedential value for other cases within the Tribunal because the question of what constitutes a “substantial part” of a particular course may vary from course to course; and
c)Tribunal Decisions do not, and cannot, bind this Court on a judicial review application.
The Overseas Student Confirmation of Enrolment certificates[55] provided by Mr Kabir to the Tribunal in relation to his Bachelor of Business Degree at ECU do not indicate what year of the course he was enrolled in or whether he had any form of advanced standing. Nor did Mr Kabir indicate in any correspondence to the Department, or in evidence to the Tribunal, that he had enrolled in second year of the Bachelor or Business Degree. There was no evidence before the Tribunal that Mr Kabir had enrolled straight into the second year of the Bachelor of Business Degree, as opposed to his having simply enrolled in the course. In those circumstances, there was nothing before the Tribunal to enable it to find that he had completed a substantial part of the course. There was therefore no jurisdictional error in failing to make that finding.
[55] CB 65 and 69.
The lack of evidence is notwithstanding an invitation from the Tribunal on 4 June 2009 to provide “evidence of enrolments, studies and academic performance of studies in Australia during the past five years.”[56] No relevant material was provided in response to that invitation.
[56] CB 133.
The sometimes necessarily fine judgments about whether 25, 27, 29, 31 or 33 percent (or some other percentage) might or might not constitute a “substantial part” of a course is, in any event, a matter of fact within the jurisdiction of the Tribunal.[57] It is a matter for the exercise of the Tribunal’s discretion, not a matter in relation to which this Court ought to interfere, unless the Tribunal’s Decision is plainly or manifestly wrong. Thus, even if it were correct to say in this case that Mr Kabir had “successfully completed” one year of a Bachelor of Business Degree at ECU, whether that constitutes a “substantial part” of a course is a matter for the Tribunal, and the Tribunal was plainly not satisfied on whatever evidence it had before it with respect to that matter. There is nothing so plainly or manifestly wrong as to constitute jurisdictional error in a finding which does not equate completion of 33 1/3 percent of a degree course with completion of a “substantial part” of a course.
[57] Seneviratne at para.48 per Scarlett FM; Palser at 317 per Viscount Simon.
In the circumstances, it is unnecessary to decide or deal with the Minister’s submission that the first year of the course was not completed, but rather the subject of an exemption, because there is simply no evidence which was before the Tribunal which would support either Mr Kabir’s argument (for reasons set out above) or the Minister’s argument on this application.
The successful completion of the Diploma of Business does not assist Mr Kabir because he successfully completed the Diploma of Business in December 2003, according to his evidence before the Tribunal.[58] The evidence established that the last unit for which he was awarded a grade was completed in third semester 2003.[59] That is not within two years of the date of his Student Visa application on 14 March 2008. The evidence before the Tribunal that Mr Kabir enrolled in Management I in the first semester of 2004 but did not receive a grade and received a mark of zero percent, and the evidence before this Court that he enrolled in the same unit with the same outcome in the first semester of 2006 does not assist Mr Kabir because enrolling in a unit, achieving no grade and a mark of zero percent cannot be considered completion, let alone successful completion, of a unit towards the Diploma of Business. In any event, it was open to the Tribunal as the finder of fact to accept, as it did, Mr Kabir’s evidence that he successfully completed the Diploma of Business in December 2003.
[58] Tribunal Transcript, p.4 and CB 153.
[59] CB 153.
The award of the Diploma in Business in March 2007 does not assist Mr Kabir. That is because it is not conferral but successful completion of a substantial part of the course that cl.5A504(1)(d)(iii) of the Migration Regulations is directed toward. Successful completion of the course is a necessary precondition to conferral of a Diploma or Degree, but the course itself is successfully completed prior to the date of conferral.[60] Therefore, conferral of the Diploma in March 2007 does not bring him within the scope of successful completion of a substantial part of the Diploma course within two years of the date of his Student Visa application on 14 March 2008.
[60] Nguyen v Minister for Immigration [2006] FMCA 1611 at paras.21-25 per Smith FM; Alagaretnam v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 91 ALD 796 at 798-799 per Lander J; [2006] FCA 367 at paras.48-52 per Lander J (requirement for award of Graduate Diploma in Legal Practice met 9 January 2004, Diploma awarded on 1 April 2004, visa applied for on 28 July 2004 not within six months of completion of Diploma).
In the circumstances, the Tribunal did not commit jurisdictional error in finding that Mr Kabir had not met the requirements of cl.5A504(1)(d)(iii) of the Migration Regulations.
Ground 1(b)
The ground
Ground 1(b) alleges that the Tribunal made a jurisdictional error in denying Mr Kabir’s application for a Student Visa by failing to consider all the facts and law related to Mr Kabir’s application, particularly that he had at least five years of study in English undertaken in Australia pursuant to cl.5A504(1)(e)(ii) of the Migration Regulations, in that the reasons revealed an error in the interpretation of the applicable law or in the application of that law to the facts.
Mr Kabir’s submissions
Mr Kabir argued that:
a)the Tribunal had before it evidence that he had enrolled and commenced studies in Australia and been studying since his arrival in June 2001 up until the cancellation of his visa in the first semester of 2007, and that the only time that he was not enrolled was in the second semester of 2007 when his Student Visa was cancelled, and having re-enrolled in semester one in 2008 when his visa was reinstated that visa then lapsed prompting the present Student Visa application;[61]
[61] CB 153-154.
b)the Tribunal ignored relevant material and misinterpreted the meaning of “year” by calculating the number of years that Mr Kabir undertook studies in English in Australia based on the number of months that Mr Kabir was studying as follows:
“The applicant stated that he had previously been studying at Edith Cowan University and believed that they were satisfied with his level of English language proficiency, however his evidence at the Tribunal hearing was that he had completed a Diploma of Business at Perth Institute of Business and Technology which had been a one year course (1 year). He had completed approximately 10 months of a Certificate III in Hospitality at the Australian School of Tourism and Hotel Management (10 months) before starting a Bachelor of Business at Notre Dame University for approximately 10 months in 2005 (10 months). He enrolled and studied for a couple of months in a hospitality course at ASTHM (say 3 months) and then studies at Edith Cowan University in a Bachelor of Business course from 25 February 2008 until notified his visa was cancelled in March 2008 (say 1 month). From this evidence, it is apparent that the applicant has not undertaken five years of study in aggregate since arriving in Australia and therefore does not satisfy 5A504(1)(e).”[62]
[62] CB 156.
c)Mr Kabir asserts that he undertook the study for the Diploma of Business as follows:
Year
Semesters
No of Semesters
2001
Second and Third Semesters
2
2002
Second and Third Semesters
2
2003
First, Second and Third Semesters
3
2004
First Semester
1
2006
Third Semester
1
d)Mr Kabir submits that the Tribunal should have reckoned the number of years of study in the context of one semester being half a year and two semesters being one year and should have further considered the evidence that it took Mr Kabir more than three years to complete his Diploma in Business instead of one year;
e)Mr Kabir cites the case of Yu Wu 0803867[63] where the applicant in that case submitted evidence that he was enrolled as follows:
[63] [2009] MRTA 2274 (“Yu Wu”).
“From October 2003 to late August 2005 the applicant studied ELICOS at year 11 and 12 at SCEGGS Redlands.
From 29 August to 21 December 2005 the applicant studied year 11 and 12 at the Australian Pacific College.
From 16 October 2006 to 21 December 2007 the applicant studied year 11 and 12 at Meridian International School.
From 3 March to 20 June 2008, 7 July to 24 October 2008, 3 November 2008 to 20 February 2009 and February to June 2009 the applicant studied a Diploma of Commerce at Curtin University of Technology.
From July 2009 to present the applicant studied a Diploma of Business Administration at La Trobe University.
The Tribunal finds that the applicant has been studying in Australia since 2003 apart from a period from January to September 2006 when there was a problem with his enrolment at the Australian Pacific College. The Tribunal is satisfied that the applicant has undertaken study in English in Australia for a period of at least five years.”[64]
[64] Yu Wu at para.28 per McDonald, Senior Member.
Mr Kabir submits that the Tribunal in Yu Wu did not count the exact number of months that the applicant was enrolled and divide it by 12 to determine the number of years the applicant had been studying. Instead it interpreted the period of enrolment for two semesters as one year;
f)in Lun Zhao 071238370[65] Mr Kabir submits that the Tribunal considered that although the applicant in that case studied for five semesters for his Diploma of Business this was equivalent to a period of approximately 2.5 years, citing the following passages from that decision:
[65] [2007] MRTA 373 (“Lun Zhao”).
“According to his statutory declaration he then studied a Diploma of Business at the Australian Catholic University from July 2001 to December 2004. The applicant has submitted supporting evidence in the form of a transcript and a certificate from the Australian Catholic University that he studied for 5 semesters from July 2001 to the end of 2003 (approximately 2.5 years). According to a search of the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) by the Tribunal this course was conducted in English.
The applicant has submitted supporting evidence in the form of a transcript and the letters dated 17 July 2007 and 3 August 2007 from CQU referred to above that he has been studying towards a Bachelor of Accounting at CQU from July 2004 to date (approximately 3 years).
In view of the fact that the applicant has provided supporting documentation for having studied over 5 years and 9 months in English in Australia, the applicant satisfies the requirements of 5A504[(1)](e)(ii);”[66]
[66] Lun Zhao at p.9 per Forsyth, Member.
g)Mr Kabir submits that the Tribunal should have adopted its prior decisions cited above and interpreted “one year” of study as equivalent to one academic year constituting two semesters and that on that basis he has been studying since June 2001 up until March 2007 and has therefore undertaken study in English in Australia for a period of at least five years;
h)Mr Kabir cites the case of Singh 0805558[67] where the Tribunal said:
“The Tribunal is of the view that the intention of the English language proficiency requirements in the Student visa stream, is the decision maker needs to be satisfied that the applicant is a genuine student with a degree of English language proficiency that will enable an applicant for a Student visa to successfully engage in their enrolled course of study. The Tribunal does not believe that the intention is to use this legislation to deny visa applications of genuine students.”[68]
and in support of this approach Mr Kabir refers to the following passage from Project Blue Sky Inc v Australian Broadcasting Authority:[69]
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute …The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole” …In Commissioner for Railways (NSW) v Agalianos … Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed …”[70]
[67] [2009] MRTA 1644 (“Singh”).
[68] Singh at para.21 per Ledson, Member.
[69] (1998) 194 CLR 355; [1998] HCA 28 (“Project Blue Sky”).
[70] Project Blue Sky CLR at 381 per McHugh, Gummow, Kirby and Hayne JJ; HCA at para.69 per McHugh, Gummow, Kirby and Hayne JJ.
Minister’s submissions
The Minister submits that:
a)the decision in Yu Wu does not support Mr Kabir’s claims. In Yu Wu the approximate periods during which the applicant studied at five different institutions were one year 11 months, 4 months, 14 months, 16 months and 4 months. The total of those five periods is five years and five months, which was why the Tribunal was able to conclude that it was satisfied that the applicant had undertaken study in English in Australia for a period of at least five years;
b)the decision in Lun Zhao does not support Mr Kabir’s claims. The Tribunal clearly considered that it was appropriate to take into account a number of months of study, as well as whole years and half years, where the course of study was for a period of months, or where the course of study was for a period of a year or longer, but the applicant only completed a number of months’ study. Immediately before the paragraphs of the Tribunal’s decision in Lun Zhao cited by Mr Kabir, the Tribunal had stated:
“The applicant has submitted supporting evidence in the form of the letter from Insearch that he studied a Diploma of Information Technology at Insearch UTS from October 1999 until June 2000 (9) months. According to a search of the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) by the Tribunal this course was conducted in English.”[71]
[71] Lun Zhao at p.9 per Forsyth, Member.
c)the question posed by clause 5A504(1)(e) of Schedule 5A of the Migration Regulations is whether Mr Kabir has undertaken at least five years of study in English in Australia. Where, as here, an applicant has undertaken several different courses of study in different institutions over different periods of time, it is appropriate to aggregate the various periods of study, some of which may only be a number of months, to determine whether Mr Kabir has undertaken “at least 5 years of study in English”. The periods between the end of one course, or the cessation of study at one institution and the commencement of another course at a different institution cannot be taken into account in assessing whether an applicant has in aggregate undertaken at least five years of study;
d)it is to be implied that the study is to be full-time study, or the equivalent of full-time study. A person who was studying part-time and doing half the course workload of a person doing a full-time course of study should not be attributed the same period of study for a course conducted in English as a person who was studying full-time and undertaking a full-time course workload. Clause 5A504(1) is concerned with proficiency in English, and one means of showing that proficiency is by Mr Kabir being exposed to English by study in a course or courses which are conducted in English. Clearly there must be some consistency in the amount of exposure to English to which visa applicants must be subject in order to satisfy the requirement of “at least 5 years study in English”;
e)in relation to Mr Kabir’s studies at PIBT in 2001-2003:
i)he commenced his Diploma of Business at PIBT on 25 June 2001 and continued those studies on a full-time basis until the end of Semester 3 in 2003. That is a total period of almost two years and seven months (allowing for PIBT's Semester 3 finishing on approximately 22 January of the following year); and
ii)clause 5A504(1)(e) only applies to study in English undertaken in, relevantly, Australia. Accordingly, any periods of time that Mr Kabir was outside Australia must be discounted in determining the period of his study for a Diploma of Business at PIBT. Mr Kabir was absent from Australia for two periods in 2002 totalling approximately two months.[72] Accordingly, it would be appropriate to attribute two years and five months to Mr Kabir’s study with PIBT to the end of Semester 3 in 2003;
[72] CB 130.
f)in relation to Mr Kabir’s studies during 2004 he commenced a Certificate III in Hospitality (Commercial Cookery) with ASTHM on 9 February 2004 which finished on 17 December 2004. The Tribunal correctly allowed a period of ten months for Mr Kabir’s study in English for this course. The Management 1 unit in which Mr Kabir was also enrolled at PIBT in Semester 1 of 2004 was within the period of the Certificate III course with ASTHM, and no extra time should be allowed for it, particularly in light of Mr Kabir’s mark of 0%;
g)in relation to Mr Kabir’s studies with Notre Dame University in 2005 he commenced a Bachelor of Business degree at Notre Dame University on 21 February 2005, which was scheduled to finish on 20 December 2007. Mr Kabir’s evidence to the Tribunal was that he left the course towards the end of 2005, and he did not re-enrol at the University of Notre Dame in 2006 as the University terminated his enrolment. The Tribunal was therefore correct in allowing ten months for Mr Kabir’s studies with Notre Dame University in 2005;
h)in relation to Mr Kabir’s studies with ASTHM in 2006 the evidence is that he enrolled in an Advanced Diploma of Hospitality Management with ASTHM in 2006, with the course commencing on 24 April 2006 and ending on 4 July 2008. Mr Kabir gave evidence to the Tribunal that his enrolment was cancelled when the managing director of ASTHM returned from overseas. Mr Kabir did not provide the Tribunal with any attendance records or results of the subjects he studied from ASTHM, or advice from ASTHM as to the date his course was cancelled. The Tribunal was therefore not in error in allowing a period of three months for Mr Kabir’s studies at ASTHM in 2006;
i)in relation to Mr Kabir’s studies at PIBT in 2006:
i)he refers to study at PIBT during third semester of 2006,[73] and a Statement of Academic Record from PIBT dated 17 July 2008 which lists the unit Management 1 for the third semester of 2006, for which Mr Kabir received a mark of 0%;[74]
[73] Mr Kabir’s Affidavit, para.6.1.
[74] Mr Kabir’s Affidavit, Annexure D (“PIBT Statement of Academic Record”).
ii)he did not present any evidence to the Delegate or to the Tribunal of his study at PIBT in the third semester of 2006 for the unit Management 1. In July 2008 Mr Kabir provided to the Delegate a copy of the record of units he had studied at PIBT which was dated 7 April 2006, and which did not include the Management 1 unit for the third semester of 2006. Nor did Mr Kabir refer to this unit in his letter to the Delegate;[75]
[75] CB 75 and 72-73.
iii)there is also no evidence that Mr Kabir gave a copy of the PIBT Statement of Academic Record, or otherwise advised the Tribunal of his enrolment and study in the Management 1 unit at PIBT in the third semester of 2006; and
iv)as Mr Kabir did not give any evidence to either the Delegate or the Tribunal concerning his study at PIBT in the third semester of 2006, any study for that period could not be taken into account by the Tribunal for the purposes of determining whether Mr Kabir satisfied the requirements of cl.5A504(1)(e) of Schedule 5A of the Migration Regulations;
j)in relation to Mr Kabir’s study at ECU in 2007:
i)he enrolled in a Bachelor of Business degree course at ECU which commenced on 16 February 2007 and had an end date of 31 December 2009.[76] However, after he was advised of the cancellation of his student visa on 1 March 2007, he became mentally unstable and decided not to enrol for second semester in 2007;[77] and
ii)he did not provide any records from ECU of his attendance, units studied and results for the first semester of 2007. Mr Kabir was asked by the Tribunal on two occasions to provide evidence of his enrolment, studies/attendance and academic performance in Australia during the past five years,[78] but did not provide any such evidence. The Tribunal therefore made no error in only allowing one month for Mr Kabir’s study at Edith Cowan University in the first semester of 2007;
k)in relation to Mr Kabir’s study at ECU in 2008:
i)when his student visa was reinstated he re-enrolled at ECU in a Bachelor of Business degree in 2008 starting on 25 February 2008 and scheduled to be completed on 31 December 2010. The fact that the course was again to take three years suggests that Mr Kabir did not pass any of the units for this course in which he was enrolled in the first semester of 2007;
ii)Mr Kabir did not provide the Delegate or the Tribunal with any records from ECU as to his attendance, units studied and results for his Bachelor of Business course during 2008; and
iii)in the absence of any records from ECU as to Mr Kabir’s attendance and results in relation to the units of the Bachelor of Business course in which he was enrolled in 2008, the Tribunal was not bound to attribute any period of study to Mr Kabir in respect of his enrolment in this course in 2008;
l)in relation to Mr Kabir’s years of study in English undertaken in Australia the evidence given by him as to the various periods of study in English undertaken in Australia by him at different educational institutions does not establish that he satisfied the requirements of cl.5A504(1)(e) of Schedule 5A of the Migration Regulations of giving evidence of at least five years of study in English undertaken in Australia. Accordingly, there was no jurisdictional error by the Tribunal in concluding that Mr Kabir did not satisfy cl.5A504(1)(e) of the Migration Regulations.
[76] Mr Kabir’s Affidavit, Annexure C.
[77] CB 73.
[78] CB 133 and 138.
Consideration
The applicant’s arguments rest upon what constitutes a “year” for the purposes of the phrase “at least 5 years” in cl.5A504(1)(e)(ii), which is then qualified by the words “of study”, and, relevant to this case “in … Australia”, or, more generally “1 or more of the following countries” followed by a list of countries, namely Australia, Canada, New Zealand, South Africa, the Republic of Ireland, the United Kingdom and the United States of America.
Some might argue that the finding or measuring of a year or years is a difficult task. It has been said that:
The official time-measurement for the year is so obtuse that it pains one to fulfil the need to purvey it here. …For the record, however, expert David Ewing Duncan explains the meat of this issue with admirable concision in his book The Calendar:
In 1967 the rate of cesium’s pulse was calibrated to 9,192,631,770 oscillations per second. This is now the official measurement of world time, replacing the old standard based on the earth’s rotation and orbit, which had used as its base number a second equal to 1/31,556,925.9747 of a year. This means that under this new regime of cesium, the year is no longer officially measured as 365.242199 days, but as 290,091,200,500,000,000 oscillations of Cs, give or take an oscillation or two.[79]
[79] A Waugh, Time. From Micro-Seconds to Millennia – A Search for the Right Time (London: Headline Book Publishing, 1999) page 142.
There are various kinds of a general or scientific year, including the anomalistic, astronomical, canicular, embolismic, equinoctial, lunar, lunisolar, natural, sidereal, solar, Sothic, tropical and vague.[80]
[80] The Shorter Oxford Dictionary on Historical Principles, Volume 2 (Oxford: Clarendon Press, 1973) page 2587.
The historical year has “for a very long period begun on January 1”,[81] after the passage of the Calendar (New Style) Act, 1750 (UK), and with effect from 1 January 1752, the civil, ecclesiastical and legal years also began on 1 January.[82]
[81] Osborn’s Concise Law Dictionary (10th Edn) (London: Sweet and Maxwell, 2005) page 435 (“Osborn’s”).
[82] Calendar (New Style) Act, 1750 (UK), s.1.
A “year” is not relevantly defined in either the Acts Interpretation Act 1901 (Cth) or the Migration Act, but in the Interpretation Act 1984 (WA), “year” is defined as “a period of 12 months”.[83]
[83] Interpretation Act 1984 (WA), s.5. By reason of the meaning of “written law” in s.5 of the same Act the definition only applies to written laws passed by the Parliament of Western Australia (see definition of “written law” and “Act”).
A “year” in its ordinary and most common meaning “consists of 12 calendar months; that is, 365 days in an ordinary year, and 366 in a leap year”.[84]
[84] Osborn’s, page 435.
The Migration Regulations contain various expressions and definitions related to years, including the following (which are not intended to be an exhaustive survey):
a)reference to “financial year”;[85]
b)defines “fiscal year” as:
[85] Migration Regulations, Schedule 2, cls.105.230, 126.228, 134.222, 485.228, 880.229.
In relation to a business or investment, means:
(a) if it is applicable to the business or investment by law an accounting period of 12 months – that period; or
(b) in any other case – a period of 12 months approved by the Minister in writing for that business or investment.[86]
[86] Migration Regulations, reg.1.03.
and which is referred to in the phrases:
i)“for at least 2 of the 4 fiscal years immediately before the application is made”;[87]
[87] Migration Regulations, Schedule 2, cls.132.212, 160.213, 160.217, 161.111, 163.212(a) and 163.215.
ii)“throughout” a period of fiscal years, be it:
A.“throughout at least 1 of the 5 fiscal years immediately before the application is made”;[88] and
[88] Migration Regulations, Schedule 2, cl.162.212(2).
B.“throughout the 2 fiscal years immediately before the application is made”;[89]
[89] Migration Regulations, Schedule 2, cl.162.212(3).
c)refers to:
i)a “course of study of at least … [a specified number of] years” or “course of study of less than … [a specified number of] years”;[90] and
ii)defines “course of study” as meaning either:
A.“a full-time registered course of study”;[91] or
B.“a full-time course of study”;[92] and
d)defines “academic year” as meaning “a period that is specified by the Minister as an academic year in an instrument in writing for this definition,”[93] and which refers to “academic years” in the phrase “course or courses … completed as a result of a total of at least 2 academic years study”.[94]
[90] Migration Regulations, Schedule 2, cl.496.215(2)(a)(i) and (b)(i) and (iii), 862.216(2)(a)(i) and (b)(i) and (iii) and 863.217(2)(a)(i) and (b)(i) and (iii); Schedule 5A, cl.5A309.
[91] Migration Regulations, Schedule 2, cls.570.111, 571.111, 573.111, 574.111, 575.111. See also the meaning given to the phrase by reg.2.26A(7A), as referred to in Schedule 2, cls.496.111, 138.111, 139.111 and 137.111, where it is defined as “a full-time registered course of study”.
[92] Migration Regulations, Schedule 2, cl.576.111.
[93] Migration Regulations, reg.1.03.
[94] Migration Regulations, reg.1.15F.
The period of “at least 5 years” had to be a period “of study”. That relevantly means a period of “application of the mind to the acquisition of learning”.[95]
[95] The Shorter Oxford English Dictionary on Historical Principles, Vol. 2 (Oxford: Clarendon Press, 1973) page 2158.
The Tribunal assessed Mr Kabir’s period of study by reference to:
a)completed calendar months of study; and
b)in relation to the Diploma of Business by reference to a year,
and, at least impliedly (for it was not done expressly), adding the various periods together to arrive at the conclusion that “the applicant had not undertaken 5 years of study in aggregate” and had therefore not satisfied cl.5A504(1)(e)(ii).
Having regard to the ordinary meaning of “year”, and in particular to it being 12 calendar months or 365 days (in a non-leap year), there is no error in the Tribunal’s approach to the calculation of what constitutes a year. There was no challenge to the Tribunal’s aggregation of various periods, but in any event it was the correct approach. Where the Migration Regulations require “full-time” study, or that study be “throughout” a particular year or period of years, that is specified. Further, the fact that cl.5A504(1)(e)(ii) refers to study undertaken in “1 or more” countries scattered across the globe is another indication that aggregation is the proper approach, because is it open to a court or tribunal to infer that periods of study in those countries would not necessarily be contiguous.
The applicant’s primary submission at hearing was that the Tribunal ought to have calculated the period based on “academic years”. However, for reasons set out above, it was open for the Tribunal to adopt the approach to the meaning, calculation and aggregation of years which it adopted, and which was based on the ordinary meaning of “year”. There was a further reason, however, why the Tribunal was correct not to use “academic years” as the basis for its calculation. In context it can be seen from the brief overview set out above, that where it is intended that the Migration Regulations apply to a particular kind of year, be it, for example, financial, fiscal or academic, that is expressly prescribed, and is so prescribed for “academic year”. Even allowing for the necessary caution to be adopted in regard to the use of interpretative aids such as express reference to one matter excluding other matters, and the use of words consistently within statutory provisions, particularly in regard to regulations such as the Migration Regulations which are frequently amended, it is clear that cl.5A504(1)(e)(ii) refers to the ordinary meaning of “years”, and not a special meaning such as “academic years”. There was no error by the Tribunal in failing to determine the number of years by reference to “academic years”.
Mr Kabir complains about the Tribunal’s calculation of time for each of the courses he has enrolled in or attended. The actual calculation of time is a factual matter (assuming the right question is asked by the Tribunal and only relevant considerations are considered), and therefore a matter for the Tribunal, and not a matter for this Court on a judicial review application. In any event, there can be no doubt that the Tribunal had evidence before it which justified it in finding that Mr Kabir:
a)completed 10 months of study for a Certificate III in Hospitality at ASTHM, start and finish dates of 9 February 2004 and 17 December 2004 having been provided by Mr Kabir to the Tribunal;[96]
b)studied for 10 months in the Bachelor of Business at the University of Notre Dame, which course was scheduled to run from 21 February 2005, but which University Mr Kabir told the Tribunal he left “towards the end of 2005”;[97]
c)studied for 3 months in a further hospitality course at ASTHM, and which Mr Kabir told the Tribunal he left “after only a couple of months” in 2006;[98]
d)studied for 1 month at ECU in February 2008 when re-enrolled for a Bachelor of Business Degree scheduled to run from 25 February 2008, but in relation to which Mr Kabir provided the Tribunal with no evidence of attendance or results following his re-enrolment.[99]
[96] Para.9 above.
[97] Para.10 above.
[98] Para.11 above.
[99] Para.14 above.
The Diploma of Business at PIBT was correctly said by the Tribunal to be a one year course, and therefore the Tribunal calculated that Mr Kabir’s period spent studying the Diploma of Business was one year of the required “at least 5 years”.[100] Mr Kabir’s own evidence before the Tribunal was that it took him from June 2001 until December 2003 to complete the Diploma of Business course. The Tribunal accepted that evidence.[101] That is a period of two years and six months. In calculating the period as one year the Tribunal misdirected itself by:
a)asking itself the wrong question, namely – “What was the length of the course?”; or
b)by taking into account an irrelevant consideration, namely the length of the course.
[100] CB 156.
[101] CB 153 and 156.
The Tribunal should have asked itself “What period “of study” did Mr Kabir undertake?”, and relevantly considered the length of that period. The Tribunal did not do so, but rather simply adopted the nominal or specified full time length of the course as the length of Mr Kabir’s study. It follows that the Court does not agree with the Minister’s submission[102] that it is to be implied that the length of the period of study for a person to whom cl.5A504(1)(e)(ii) applies is to be the full-time or full-time equivalent of the course being studied. Where the Migration Regulations mean full-time study it is expressly said.[103] All that is required time-wise is study over the relevant qualifying period of “at least 5 years”.
[102] See para.42(d) above.
[103] See examples in para.49(c)(ii) above.
It follows that the Tribunal committed jurisdictional error in asking the wrong question or failing to have regard to a relevant consideration with respect to the period of study undertaken by Mr Kabir in relation to the Diploma of Business at PIBT.
There was an argument as to whether the 2004 and 2006 semester one Management I unit results of 0% and no grade awarded[104] were matters which the Tribunal was obliged to include for the purposes of calculating the relevant period “of study”. In relation to both 2004 and 2006, the 0% results and the awarding of no grade would have entitled the Tribunal to make a finding that they were not periods “of study”. This is because a 0% result and no grade is inconsistent with any “study” being undertaken by Mr Kabir, but consistent with there being no application of the mind, nor acquisition of learning,[105] or both. Also, mere enrolment is not “study”. Further, the Tribunal could not have had regard to the 2006 semester one Management I unit result because, as correctly submitted by the Minister, there was no evidence of it before the Tribunal. Therefore, there was no requirement for the Tribunal to consider the 2004 and 2006 Management I units for the purposes of calculating the relevant period “of study”.
[104] See paras.7 and 42(i)(i) above.
[105] See the definition of “study” in para.50 above.
The Minister submitted that periods during which Mr Kabir was overseas could not be counted as periods “of study” under cl.5A504(1)(e)(ii) because there could be no study undertaken “in … Australia” if Mr Kabir was overseas. There were two periods where Mr Kabir was overseas for a total period of approximately two months whilst enrolled in the Diploma in Business.[106] The Minister’s submission is correct: if Mr Kabir was not “in Australia” he could not be undertaking study as contemplated by cl.5A504(1)(e)(ii), unless he was studying in one of the other nominated countries, a matter about which there was no evidence before the Tribunal. Effectively, this means that Mr Kabir was, within the period from June 2001 to December 2003, undertaking “study” in the Diploma of Business for two years and four months.
[106] See para.4 above.
In its findings, the Tribunal did not consider whether Mr Kabir was entitled to have a period of time calculated as “study” from February 2007. There was evidence that Mr Kabir was enrolled at ECU in a Bachelor of Business commencing on 16 February 2007, but that his student visa was cancelled on 1 March 2007. Subsequently, he did not enrol in second semester at ECU[107] (or anywhere else on the evidence). However, the Tribunal did not make any findings about this period and certainly gave no credit for the approximately 2 week period between 16 February 2007 and 1 March 2007,[108] although it did advert to the evidence of his enrolment and non-enrolment respectively.[109] In failing to consider this matter in the context of the findings, the Tribunal arguably failed to have regard to a relevant consideration. However, there was no evidence (despite request from the Tribunal) of Mr Kabir’s attendance, academic performance or of any actual study during this period,[110] and as indicated above, mere enrolment is not “study”. The Tribunal’s failure to make findings may simply reflect a view held by it that on the evidence there was no finding to be made as to a period that could be considered as “study”, and the Court so finds. There was therefore no jurisdictional error in relation to the Tribunal’s consideration of Mr Kabir’s time at ECU in 2007.
[107] See para.12 above.
[108] CB 156.
[109] CB 154.
[110] See para.12 above.
With respect to the decisions of the Tribunal in Yu Wu, Lun Zhao and Singh:
a)none of them assist Mr Kabir for the reasons set out in the Minister’s submissions above, which the Court accepts in relation to the application of those decisions to Mr Kabir’s circumstances;
b)each is simply a determination by the Tribunal having regard to the particular facts before it, and therefore of no particular precedential value for other cases within the Tribunal because the question of what constitutes “at least 5 years” is a factual matter for determination by the Tribunal; and
c)Tribunal Decisions do not, and cannot, bind this Court on a judicial review application.
The Court therefore concludes that the Tribunal committed jurisdictional error in asking the wrong question or failing to have regard to a relevant consideration with respect to the period of study, namely two years and four months, undertaken by Mr Kabir in relation to the Diploma of Business at PIBT. Ground 1(b) of the application is therefore made out.
Relief is discretionary
The Court is entitled to consider whether prerogative relief would be granted in the exercise of the discretion to do so. Having established jurisdictional error, Mr Kabir is, on the face of it, entitled to prerogative relief, unless the grant of relief “would lack utility”[111] or “be an exercise in futility”.[112]
[111] SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 at 265 per Allsop J; [2006] FCAFC 2 at para.232 per Allsop J.
[112] Jiang v Minister for Immigration & Anor [2007] FMCA 215 at para.31 per Lucev FM, upheld on appeal: Jiang v Minister for Immigration & Anor [2007] FCA 907 at para.30 per Bennett J.
The question here is whether prerogative relief would lack utility or be an exercise in futility. There can be no doubt that the Tribunal was justified in finding that Mr Kabir had 24 months of study on the basis of his studies:
a)for a Certificate III in Hospitality at ASTHM;
b)in the Bachelor of Business Degree at the University of Notre Dame;
c)in a further hospitality course at ASTHM; and
d)for studies when re-enrolled in the Bachelor of Business Degree at ECU.
For reasons set out above, the Tribunal should also have had regard to the period of study Mr Kabir undertook in the Diploma of Business at PIBT, that period being two years and four months. Together with the 24 months identified above that gives a total of four years and four months of study in English undertaken in Australia. However, on the basis of the evidence before the Tribunal it could never have found, in the Court’s view, that there was a further eight months of study in English undertaken in Australia by Mr Kabir. For reasons set out above, Mr Kabir cannot claim the 2004 semester one and 2006 semester one attempts to undertake the Management I unit at PIBT. Further, Mr Kabir can possibly claim two weeks for studies at ECU in the Bachelor of Business Degree in 2007 from 16 February 2007 to 1 March 2007, or assuming completion of semester one at ECU in 2007, a period of up to five months (but which the Court hastens to add there is no evidence in respect of). Otherwise, there is no other period during which there is evidence of study by Mr Kabir which would be able to be considered by the Tribunal. In the circumstances, there was nothing before the Tribunal which would have enabled it to conclude that there was a further eight months of study in English undertaken in Australia, over and above the four years and four months identified above, so as to qualify Mr Kabir as meeting the criteria in cl.5A504(1)(e)(ii). Therefore, to order prerogative relief would be an exercise in futility.
Thus, even though the Tribunal did commit jurisdictional error, proper consideration of the application by the Tribunal would, in the Court’s view, have resulted in the same outcome by reason of the fact that Mr Kabir cannot establish that he had the required “5 years of study”. The Court is therefore of the view that a grant of prerogative relief would be futile, or lack utility, and therefore exercises its discretion to refuse prerogative relief.
Conclusion
The Court has concluded that:
a)Mr Kabir failed to establish ground 1(a), namely that he had successfully completed a substantial part of a course;
b)Mr Kabir has established that the Tribunal committed jurisdictional error in asking the wrong question or failing to have regard to a relevant consideration with respect to the period of study undertaken by Mr Kabir in relation to the Diploma of Business at PIBT, and ground 1(b) of the application is therefore made out;
c)however, because Mr Kabir could not have established before the Tribunal that he had the required “5 years of study”, the Court has further concluded that a grant of prerogative relief would be futile, or lack utility, and that it will therefore exercise its discretion to refuse prerogative relief; and
d)there will therefore be an order that the application be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Gough
Date: 5 March 2010
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