KRISHNA POUDEL v Minister for Immigration
[2013] FMCA 11
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KRISHNA POUDEL v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 11 |
| MIGRATION – Review of Migration Review Tribunal decision – student visa – whether completed 75% of course – when credit given for prior studies. |
| Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), Sch.3, 5A |
| Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 153 ALR 490; (1998) 72 ALJR 841; [1998] 8 Leg Rep 41 Santhosh Gourishetti [2005] MRTA 277 |
| Applicant: | KRISHNA POUDEL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 751 of 2012 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 8 November 2012 |
| Date of Last Submission: | 8 November 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 30 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | Da Gama Pereira and Associates |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The decision of the second respondent made on 28 May 2012 be set aside.
The matter be remitted to the second respondent for reconsideration according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 751 of 2012
| KRISHNA POUDEL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act1958 (Cth) (“the Act”), in which the Applicant seeks judicial review of a decision made by the Migration Review Tribunal (“the Tribunal”) on 28 May 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Subclass 572 student visa. The Applicant seeks to quash the decision of the Tribunal and have the matter be remitted to the Tribunal, differently constituted, to determine the application according to law.
Background
The Applicant first came to Australia from Nepal in November 2007 as a holder of a Subclass 572 student visa. The Applicant completed a Certificate III in Hospitality and a Diploma in Hospitality. The Applicant completed these studies on 8 November 2010.
In an email dated 25 June 2010 the Applicant was advised that he had been granted a further student visa, which was valid until 15 March 2011 [CB 21].
The Applicant (through a migration agent) then applied for a further Subclass 572 student visa to undertake a Certificate IV course in Hospitality (Patisserie), which was to commence on 1 March 2010 and conclude on 28 February 2012. Initially a delegate refused the application for reasons not relevant to this application, following which the Tribunal remitted the delegate’s decision for reconsideration.
On 12 September 2011, the student visa application was refused by a delegate of the Minister on the basis that the Applicant did not satisfy the financial capacity requirements of cl.572.223.
The Applicant applied to the Tribunal for a review of the second delegate’s decision on 26 September 2011. The Tribunal affirmed the second delegate’s decision to refuse the visa application. The Applicant seeks review of this decision.
The Tribunal’s decision
The Tribunal affirmed the second delegate’s decision on the basis that the Applicant had failed to provide evidence that he had the requisite financial capacity to satisfy the costs associated with the proposed course of study and his costs of living: see cl.5A405(2) of Schedule 5A of the Regulations, a requirement of cl.572.223(2)(a)(i).
Unfortunately the migration agent had not provided the tribunal member with any real assistance in determining which regulations applied in this case. At the Tribunal hearing on 30 March 2012 the Applicant provided a certificate of enrolment in a patisserie course, which would be completed in 6 months and a letter from the Institute of Hotel Management Australia (“IHMA”), which stated that the Applicant had been a student at IHMA since July 2008 and outlining the Applicant’s current enrolment.
The Tribunal member noted, during the course of the hearing, that the Applicant would not meet the requirement of cl.5A406 of Schedule 5A of the Regulations that a relevant course be of at least 1 year’s duration.
The Applicant was therefore asked to provide a letter from his education provider confirming that the 6 month course was an extension of the previous 12 month programme which the Applicant had started on 1 March 2011. A letter was provided to the Tribunal on 11 April 2012, which stated that the current course was an extension of previous study.
The Tribunal found that the costs to the Applicant to complete the Course over 6 months would be A$12,000.00. In order to satisfy cl.5A405(1) of the Regulations, the Tribunal found that the Applicant needed to show that this amount was held for at least 6 months immediately before the date of the application by an acceptable individual.
The Applicant provided only one bank statement which covered this period. The funds held in this account at the relevant time were A$5,050.00. The Tribunal held that the Applicant did not provide appropriate evidence in accordance with his obligations pursuant to Schedule 5A of the Regulations.
It is clear that the tribunal member attempted to make a determination on the substantive merits of the applicant’s case, despite the fact that the case was not presented in a prepared or straightforward way.
Grounds for review
The Applicant in his amended application relies upon two grounds for review:
Ground 1
The Tribunal fell into jurisdictional error applying the wrong requirements to determine if the applicant had “funds from an acceptable source” within the meaning of clause 5A405(1)(a) of Schedule 5A of the Migration Regulations 1994, in that it failed to consider whether that the applicant had a money deposit from an acceptable individual.
Particulars
The applicant:
(a) had completed at least 75% of his course; and
(b) had applied for the visa in order to complete the course; and
(c) did not propose to undertake any further course.
Accordingly, the applicant was not required to show a money deposit held by an acceptable individual for 6 months before the date of his application.
Ground 3
In applying clause 5A405(1), the Tribunal failed to consider whether paragraph (a) of the definition “funds from an acceptable source” applied. The Tribunal failed to consider this in circumstances where the applicant had “funds from an acceptable course” within the meaning of clause 5A405(2)(a) in that applicant had completed at least 75% of his course, and had applied for the visa in order to complete the course and did not propose to undertake any further course.
The substance of the Applicant’s complaint is that the Tribunal should have applied cl.572.223(2)(a)(ii) rather than cl.572.223(2)(a)(i). The test in sub-clause (ii) applies if an Applicant has completed 75% of the course, and is less onerous than the test in sub-clause (i).
The Applicant contends that the Tribunal should have considered whether he had completed 75% of the course and that they failed to do so. In support of this the Applicant says that the Tribunal did not ask the Applicant how much of the course he had completed. This is clearly a technical argument and should not reflect upon the tribunal member, given the confused state of the Applicant’s application as presented to the tribunal member and the obvious attempts by the member to deal with the application on the substantive merits, as can be seen from the state of the evidence before the member.
There was evidence before the Tribunal that the Applicant had completed eight out of fourteen units, demonstrating less than 60% course completion. The Applicant stated, at lines 37-42 of the transcript of the Tribunal proceedings, that “I’ve got competence level out of 14 – out of 14, I’ve got competency on eight … of the units”.
The Tribunal discussed with the Applicant his previous course and the assumption that the current application was a continuation or a furtherance of the Applicant’s prior studies (paras. 50-52 of CB).
The Applicant’s submissions address the question of whether the previous course was considered by the Tribunal, as follows:
19. It is submitted that the Tribunal should have considered this because the evidence, much of which was gathered by the Tribunal itself, demonstrated that:
a. The applicant was applying for the Student Visa to complete his Certificate IV in Patisserie; and
b. The applicant had been studying since July 2008 and was applying for a Student Visa for a course that had an original start date of 1 March 2010 [CB29 and CB160] and an updated end date of 15 September 2012 [CB165].
20. It is evident from the Decision that the Tribunal did not turn its mind to whether the applicant had completed 75% of the Certificate IV course. The Tribunal was concerned that a 6 month course did not satisfy the regulations, so asked the applicant to provide a letter from his education provider confirming that his course was an extension of his previous course, making a course ‘of at least one year’s duration’ (paragraphs 55-57 [CB192]). The Tribunal noted at paragraph 67(c) of its Decision [CB194] that the letter from IHMA dated 11 April 2012 ‘confirms that the applicant’s current COE is an extension of this “previous Patisserie hospitality studies” and will enable him to complete Certificate IV in Patisserie.’
21. The transcript of the Tribunal hearing shows that the Tribunal knew that the CoE was an extension of his course and that the applicant had completed some units. …
In responding submissions, the Minister stated:
30. However, the applicant had not applied for a further visa to complete his Certificate IV in Hospitality (Patisserie). He had applied for a visa to undertake a Certificate IV in Hospitality (Patisserie) in March 2011, which had been refused, then remitted by a first Tribunal for reconsideration by a second delegate, then refused again, before being determined by the Tribunal. It is the Tribunal’s decision to affirm the second delegate’s decision to refuse to grant the applicant a visa to undertake a Certificate IV in Hospitality (Patisserie) that is the subject of the current application for judicial review.
31. The distinction between an application for a student visa to undertake a course and an application for a further student visa to complete a course is an important one, which is reflected in the financial requirements provisions of Schedule 5A of the Regulations.
At this point it is convenient to turn to the relevant exchange during the course of the hearing as appears at p.17 of the transcript. The exchange is in the following terms:
MEMBER: So what you’re saying is that this certificate IV is to allow you to finish some subjects.
MR POUDEL: Yeah. It is for the specialising in patisserie.
MEMBER: All right. How long would an advanced diploma course be?
MR POUDEL: That will be six months before I’ve already completed the diploma.
MEMBER: All right. So you’re talking about adding an advanced diploma to a certificate for – to make 12 months?
MR POUDEL: Yeah, if laws require, otherwise I will – yeah - - -
Further to this point, at p.20 of the transcript the following exchange occurs:
MEMBER: All right, thank you for waiting. I’ve had a bit of a think about that COE you provided and I can see that it appears to be an extension of your previous course.
MR POUDEL: Yes.
MEMBER: So I think that might be acceptable. It might be good – do you think that the education provider would write a letter that says, “This is a continuation of your previous course,” or something that explains ---
MR POUDEL: Yes, yes.
At para.67 of the decision, the Tribunal member confirmed that the Applicant did provide the letter referred to in the transcript, stating:
67. On 11 April 2012, the applicant provided the following documents to the Tribunal:
…
c. A letter, dated 11 April 2012, from the executive director of IHMA, which confirms that the applicant’s current COE is an extension of his “previous Patisserie hospitality studies” and will enable him to complete the Certificate IV in Patisserie.
The Tribunal’s approach to this matter primarily concerned the duration of the course of study being proposed to be undertaken by the Applicant. The Tribunal did not consider that the Applicant had completed at least 75% of the requirements of his entire course, but rather considered the financial capacity test on the basis that it was an application to undertake a course and not an application to complete a course. The Tribunal therefore failed to consider the appropriate provisions.
The real question is whether, when applying the 75% test in cl.5A405(2) of Schedule 5A of the Regulations, one includes in the assessment of completed course requirements the units for which the Applicant received credits as a result of earlier studies. If not, there is no utility in remitting the matter to the Tribunal. If there is a prima facie case then there is utility in remitting the case for the Tribunal to consider this point.
As the tribunal member approached the case on the basis that the Applicant had completed 60% of 6 months of units, and this was the second half of a course where he had completed 6 months of units, arguably he has completed 80% of the course. The Applicant provided to the Court a letter from the Executive Director of IHMA dated 8 November 2012, which states that “as at 30 March [the Applicant] has been found competent in 30 units of competency of the 40 units required for the Certificate IV in Hospitality (Patisserie)”. The letter is admissible only on the basis that it shows there is some utility in having the tribunal consider this question
There is prima facie evidence that shows that the Applicant has an arguable case that he had credit (due to previous courses) and subjects completed sufficient to satisfy 75% of the course requirements. However, of the coursework he had to undertake after enrolment he has completed less than 75%.
It is important to recall the principles of statutory interpretation set out in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 153 ALR 490; (1998) 72 ALJR 841; [1998] 8 Leg Rep 41, where McHugh, Gummow, Kirby and Hayne JJ said:
[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] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". (footnotes omitted)
In this particular case, the relevant part of the Regulations is as follows:
"funds from an acceptable source" means one or more of the following:
(a) if the applicant:
(i) has successfully completed at least 75% of the requirements for his or her principal course; and
(ii) has applied for the visa in order to complete the course; and
(iii) does not propose to undertake any further course;
a money deposit held by an acceptable individual;
(aa) if paragraph (a) does not apply -- a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application;
The issue that arises is whether the units the Applicant had previously completed, and which were being credited to him as part of his Certificate IV in Hospitality (Patisserie), could be considered to be part of his ‘principal course’ and therefore amount to ‘at least 75% of the requirements’ of his course.
There are two possible answers, either the units are not part of the principal course, as a result of having been completed in a prior course, or they are part of the course and the Applicant has completed ‘at least 75% of the requirements’ of his course.
The purpose of the financial requirements provision must be to ensure that those who come to Australia to study have sufficient funds to live in Australia and complete their course. The provisions requiring the funds to be from an ‘acceptable source’ provide some limit on the source of the funds which appears to reflect an element of verification of the genuineness of the claim that the funds are held and to ensure that the funds come from legal and sustainable sources.
The reduced requirements when 75% of a course has been completed appears to be a reflection of the fact that funds previously held would often be used up by this point in a student’s course, and if the funds are from ongoing earnings they could not be so easily shown as ‘savings’ style funds by three quarters of the way through a lengthy course. It may also be a reflection of the need to allow students who have completed 75% of their studies to finish their courses.
Regulation 1.40 defines ‘principal course’, for the purpose of Part 572 (see reg 1.40(4)) as:
(3) For subregulation (2), if:
(a)an applicant for a student visa proposes to undertake two or more courses of study that are registered courses, or an applicant for a Subclass 442 (Occupational Trainee) visa has undertaken two or more courses of study that are registered courses; and
(b) either:
(i)one of the courses of study (course A) is a prerequisite to another of the courses (course B); or
(ii)one of the courses of study (course B) may be taken only after the completion of another of the courses (course A);
course B, not course A, is the principal course.
With respect to subclass 442 visas (occupational trainees) the regulations provide:
442.111 In this Part:
completed, in relation to the principal course, for an award course means having met the academic requirements for its award, and for a non-award course means having met the course requirements.
Note: The academic requirements for the award of an academic qualification do not include the formal conferral of the award. Therefore, a person can complete a principal course, for this Part, before the award is formally conferred.
Regulation 1.42 refers to students who wish to undertake a ‘package of courses of study’, saying:
(3) This subregulation applies to an applicant who:
(a) was assessed in relation to an application for a student visa to undertake a package of courses of study; and
(b) was granted the student visa; and
(c) needs a further student visa to commence 1 or more courses in the package.
(4) This subregulation applies to an applicant who:
(a) has completed at least 50% of the principal course for which the student visa held was granted; and
(b) needs a further student visa to complete that course.
The term ‘package of courses’ is without the benefit of definition in the regulations. It appears to have some explanation in the Procedures and Advice Manual: see Santhosh Gourishetti [2005] MRTA 277.
Neither party provided a copy of the Procedure and Advice Manual (PAM). It is not a document that the Department makes available on its web site (unless purchased as part of an expensive subscription). As a result I have not had the benefit of the explanations or reasoning in the PAM.
What can be gleaned from these provisions is that there is recognition that many students will undertake more than one course. It is common for advanced courses to give considerable credit for previous studies, although some universities will not allow studies in previous courses to count towards a new course.
On the material before me, it appears clear that the requirements of the particular course are 40 units. Whether the Applicant completed them as part of earning a lower level or alternative qualification, or completed them in the period of the current visa application, he nonetheless has successfully completed those requirements. As a result, it appears to me that when calculating whether the Applicant has completed at least 75% of the requirements for his principal course, requirements which he has completed prior to enrolment (which are not pre-requisites for enrolment) and then been granted credit for, should be counted as requirements that he has completed for the current course.
Thus, the Applicant has an arguable case. As a result the decision of the tribunal member must be set aside and the application remitted for rehearing according to law.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 29 January 2013
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