Lamichhane v Minister for Immigration

[2013] FCCA 1172

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMICHHANE v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1172

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – where applicant applied for a student visa TU 572 – where application lodged two days after commencement of course – where applicant provided certificate of enrolment at time of application – where applicant unable to commence course without visa – where applicant’s enrolment cancelled prior to decision of delegate due to non-commencement of course – where delegate refused application because applicant did not hold a valid confirmation of enrolment for study – where applicant neither requested urgent consideration of application nor took steps to obtain a current certificate of enrolment – where delegate’s decision made six months after application lodged – where Tribunal invited applicant to appear and to provide a certificate of enrolment – where no new certificate provided to Tribunal – whether delay in processing of application by delegate vitiated decision of Tribunal – whether Tribunal misinterpreted Regulation 572.222 of the Migration Regulations 1994 (Cth) – where provision of certificate of enrolment required at time of decision – whether there is a temporal element to the certificate of enrolment.

Legislation:

Migration Regulations 1994 (Cth), regs.572.22, 572.222 and 572.223(1)

Aomatsu v Minister for Immigration & Anor [2005] FCAFC 139
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248
Commissioner for Railways (NSW) v Agalianos [1955] 92 CLR 390
Project Blue Sky v ABA (1998) 194 CLR 355
Octavia v Minister for Immigration & Anor [2011] 245 FLR 345
Singh v Minister for Immigration & Anor [2009] 236 FLR 384

Applicant: AMAN LAMICHHANE

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 473 of 2013

Judgment of: Judge Raphael

Hearing date: 14 August 2013

Date of Last Submission: 14 August 2013

Delivered at: Sydney

Delivered on: 23 August 2013

REPRESENTATION

Counsel for the Applicant: Mr L Boccabella

Solicitors for the Applicant: M S Nair & Co

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 473 of 2013

AMAN LAMICHHANE

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 18 January 2012 Mr Lamichhane applied for a student visa TU 572 in order to undertake an Advance Diploma of Tourism at Clarendon Business College Pty Limited. At the time Mr Lamichhane was legally in Australian on a Bridging E visa following the cancellation of an earlier sub class 572 visa on 18 May 2011. Sub Class 572 is a visa in the vocational education and training sector and is governed by the provisions of Schedule 2 of the Migration Regulations 1994[1]. These provide for criteria to be satisfied at the time of decision (reg.572.21) and criteria to be satisfied at the time of application reg.572.22. The relevant Regulations for the purposes of this application are Regulations 572.22, 572.222 and 572.223(1):

   [1] “Regulations”

   “572.22--Criteria to be satisfied at time of decision

   572.221

   (1) Unless, at the time of application, the applicant met the requirements of subclause 572.211(4), the applicant satisfies the criteria in clauses 572.222 to 572.234.

   572.222

   (1) Except if subclause (2) applies or if the application was made on form 157E, the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider (an acceptable course).

   (2) If a failure of electronic transmission has prevented an education provider from sending a certificate of enrolment and the Minister is satisfied that the applicant needs to travel urgently, the applicant gives to the Minister satisfactory evidence that the applicant is enrolled in an acceptable course.

   (3) If the application was made on form 157E, the applicant is enrolled in an acceptable course.

   572.223

   (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i) the applicant's circumstances; and

   (ii) the applicant's immigration history; and

   (iii) if the applicant is a minor--the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv) any other relevant matter; and

   (b) the applicant meets the requirements of subclause (2).”

2. A “certificate of enrolment”[2] is defined in the Regulations at Regulation 1.03 as meaning:

   “certificate of enrolment" , means a paper copy, sent by an education provider to an applicant for a student visa, of an electronic confirmation of enrolment relating to the applicant.”

   [2] “COE”

3. Electronic confirmation of enrolment is defined in the same Regulation as meaning:

   "electronic confirmation of enrolment" , in relation to an applicant for a student visa, means confirmation that:

   (a) states that the applicant is enrolled in a registered course; and

   (b) is sent by an education provider, through a computer system under the control of the Education Minister, to:

   (i) a diplomatic, consular or migration office maintained by or on behalf of the Commonwealth outside Australia; or

   (ii) an office of a visa application agency that is approved in writing by the Minister for the purpose of receiving applications for a student visa; or

   (iii) any office of Immigration in Australia.”

4. Mr Lamichhane provided a certificate of enrolment numbered 4E1E543 to the department with his application.  It is noteworthy that the application was made on 18 January 2012 for a course that had a start date of 16 January 2012.  Mr Lamichhane did not commence his course.  This was because when his visa was cancelled on 18 May 2011 the bridging visa was subject to a “no study and no work conditions [18] [CB 86].  He believed that he needed a new visa in order to commence the course.  On 26 March 2012 Mr Lamichhane’s enrolment in the course was cancelled due to non commencement of studies.  The Minister considered the application and on 27 July 2012 refused it on the ground that Mr Lamichhane did not hold a valid confirmation of enrolment for study.  The delegate’s decision states:

   “Mr Aman Lamichhane applied for this student visa TU 572 on 18 January 2012 and supplied a confirmation of enrolment (COE) with this application for the course Advance Diploma of Tourism.  The COE provided with the application was cancelled on 26 March 2012 due to non commencement of studies.  No new COE has been provided by the client for this application.  As a valid COE is a requirement for the student visa grant Mr Aman Lamichhane has not met criteria 572.222 this visa application is thus refused.”

5. Mr Lamichhane sought review of that decision from the Migration Review Tribunal.  The Tribunal invited him to a hearing and in the letter of invitation dated 31 January 2013 the Tribunal said:

   “Additionally, the Tribunal invites you to provide the following:

   1.A Certificate of Enrolment as required by 572.222 or evidence that you are enrolled in or are the subject of a current offer of enrolment in a registered course.”

6. The applicant applied to the Tribunal for additional time to provide this information in respect of which the Tribunal stated in its decision record:

   “[21]The Tribunal advised the applicant that it had considered his request for further time to provide a CoE but it declined to grant him extra time.  The Tribunal put to the applicant that he had applied for a student visa in January 2012 and the visa was refused in July 2012.  The Tribunal noted that the applicant had had more than one year to gather the relevant information since the date of application.  The applicant had been on notice since the delegate’s refusal in July 2012 about the issues in the review and the evidence he need to provide.  The Tribunal had also asked the applicant to bring a CoE to the hearing in its hearing invitation dated 31 January 2013.  The Tribunal noted that the applicant had taken limited steps to obtain the CoE since the application was refused and he had indicated to the Tribunal that he could not afford to fund his studies in any case.” [CB 87]

7. In its findings and reasons the Tribunal stated:

   “[23]The Tribunal has carefully considered the applicant’s request for further time to obtain a confirmation of enrolment (CoE). As discussed with the applicant at the hearing, the applicant had applied for a student visa in January 2012 and the visa was refused in July 2012.  The applicant had had more than one year to gather the relevant information since the date of application.  The applicant had been on notice since the delegate’s refusal in July 2012 about the issues in the review and the evidence he needed to provide.  The applicant had taken limited steps to obtain a CoE since the application was refused and had indicated to the Tribunal that he could not afford to fund his studies in any case.

   [24]After considering the applicant’s request, and for the reasons set out in the above paragraph, the Tribunal has decided not to grant the applicant further time to provide a CoE and has decided to proceed to make a decision on the review based on the evidence before it.

   …

   [26]The Tribunal will decide whether the applicant meets clause 572.222 at the time of decision.

   [27]The Tribunal finds that the visa application was made on a form 157A, not a form 157E.  The Tribunal finds that there was no failure of electronic transmission that has prevented an education provider from sending a certificate of enrolment.  Therefore, subclauses 572.222(2) and (3) do not apply in this case.

   [28]Subclause 572.222(1) requires the applicant to give to the Minister (or the Tribunal) a certificate of enrolment relating to the applicant undertaking a course of study, the provider of which is not a suspended education provider (an acceptable course).  This must be current at the time of the Tribunal’s decision.

   [29]The Tribunal finds that at the time of decision, there is no certificate of enrolment before it to show that the applicant is currently enrolled in an acceptable course.  The Tribunal therefore finds that the applicant does not meet subclause 572.222(1).”

8. On 11 March 2013 Mr Lamichhane made an application to this court for a review of the decision of the Migration Review Tribunal.  At the hearing on 14 August 2013 there was filed in court a Further Amended Application of which only grounds 3 and 4 were argued.  These are:

   “3.Further the Tribunal misinterpreted paragraph 572.222 of Schedule 2 to the Migration Regulations 1994.

   4.Further the Tribunal asked itself the wrong question in asking whether the ‘certificate of enrolment’ had expired.”

9. The arguments put by the applicant are attractive and in the particular circumstances of this case elicit some sympathy but they are, nonetheless to my mind, flawed.  The applicant’s arguments proceed on the basis with which none would argue, expressed by Gyles J in Aomatsu v Minister for Immigration & Anor [2005] FCAFC 139 that:

   “[54]Prompt and efficient administration of the scheme is the best way of ensuring that all objectives are met.”

10. In this regard the applicant was to be disappointed, he argues, because the Department took some six months to get around to considering his application and by that time the COE had been withdrawn.  Expressed as such this would appear to be evidence that the applicant was treated less than fairly; but it neglects that there was no evidence to establish that the applicant requested an urgent consideration of his application because the course had already started and he was in danger of losing his COE nor does it engage with why the applicant did not take any steps after the cancellation of the COE to obtain another one. Given the fact that the applicant was a young foreign student without a particularly well-developed knowledge of English, one could posit some reasons for these failures but no evidence was provided.   In any event whatever the faults that might be expressed in regard to the delegate’s decision it was superseded by that of the Tribunal is the one the court is now considering: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 per Finn, Mansfield and Gyles JJ at [25-32].

11. The applicant then proceeds to pray in aid what fell from Dixon CJ in Commissioner for Railways (NSW) v Agalianos [1955] 92 CLR 390 as extracted in the plurality judgment of McHugh, Gummow, Kirby and Haine JJ in Project Blue Sky v ABA (1998) 194 CLR 355 at [380]:

    “[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.” [Emphasis added]

12. The applicant utilises the emphasised words to assist him in his argument that there is no temporal element to the certificate of enrolment.  He argues that a plain reading of Clause 572.222(1) indicates that the applicant has complied therewith because he did provide the Minister with a certificate of enrolment.  In support of this contention he cites what fell from Nicholls FM, as he then was, in Octavia v Minister for Immigration & Anor [2011] 245 FLR 345. In that case Ms Octavia applied for a Class 885 visa. The Schedule 1 criteria for the class of visa included relevantly:

    “The applicant’s skills must have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation.”

13. Ms Octavia provided a skills assessment.  But that statement contained on its face a statement that it was valid for twenty-four months from the date of issue and thus the document which she provided was not still current and it was found by the Tribunal that her application was thus invalid.  She argued the relevant item 1136(3)(ba) only required a skills assessment to have been made and the words of the item did not support a construction that allowed the Minister to take into account a temporal limitation.  His Honour, in a lengthy and considered judgment, came to the conclusion that the item did not include the word “current” and it could not be inferred into the Regulation.  His Honour concluded that thus the visa application was valid. 

14. The first thing to point out in distinguishing this case from the present one is that Regulation 572.22 is a criteria to be satisfied at the time of decision.  This means that the applicant can provide the certificate at any time up to the time of decision and the certificate has to be looked at at the latest point in time.  The certificate relates particularly to the course of study for which the visa is about to be granted.  It establishes that the applicant is enrolled in that course.  Although the applicant had given the COE to the Minister it no longer existed at the time the Minister came to consider it.  It did not relate to the applicant undertaking a course of study.

15. This very matter was considered by Turner FM, as he then was, in Singh v Minister for Immigration & Anor [2009] 236 FLR 384. His Honour dealt with the matter at [40] et seq of his decision:

    “[40]Mr Felman submits that it is critical that cl 572.222 is a "time of decision" criteria. As stated above, the Court agrees. Mr Felman submits that cl 572.222 refers to the applicant "undertaking" a course of study. The Court accepts that this requires that at the time of decision the applicant is "undertaking" a course of study.

    [41]Mr Felman submits that a CoE is defined is reg 1.03 as a confirmation that an applicant "is enrolled" in a registered course. That is correct.

    …

    [45]Mr Felman submits that of the two constructions open on cl 572.222 the Court should have regard to a construction that promotes the purpose of the Act (s 15AA of the Acts Interpretation Act 1901 (Cth)). The Court accepts that submission.

    [46]Mr Felman argues, and the Court accepts, that s 15AB of the Acts Interpretation Act, allows the Court to have regard to extrinsic material in interpreting an Act. He refers to the Explanatory Statement to the amendments that introduced cl 572.222. Under the heading "New Clause 572.222" it is stated that:

    "The purpose is to ensure that an applicant provides evidence that he or she is enrolled in a full-time course of study."

    The Court accepts that the provision requires evidence to be provided that the applicant is enrolled at the time of decision.

    [47]The Court accepts the submission that to accept that an applicant can rely on an expired CoE at the time of decision would defeat the purpose of cl 572.222. The Court asks itself "If that was allowed, why would the applicant need a student visa when he had no course to study?".

    [48]The Explanatory Statement to the amendment refers to the changes being to:

    "better target those markets that attract genuine overseas students."

    See also cll 572.221(2)(b)(i)(A), 572.223(1) and (2)(a)(ii). Without proof at the time of decision that the applicant is enrolled, or is the subject of an offer of enrolment, genuineness cannot be proved.”

16. This reported decision has not been challenged on appeal or doubted in any other court.  Comity requires me to follow it unless I can be satisfied that it is clearly wrong.  It is clear from that case that it was the intention of the legislation was that there be a valid COE in existence at the time of decision.  In this case there was not.  The applicant argues that this does not matter because if one adopts the literal interpretation of the clause that he suggests then his failure to be enrolled can be given as a reason for him to be considered not to be a genuine applicant for entry and stay as a student under Clause 572.223.  But as Turner FM indicates this would lead one to ask what was the purpose of Clause 572.222?  I cannot see that his Honour’s acceptance of the submissions of the Minister in that case and his consequent findings to be clearly wrong and I would follow them. 

17. It should also be noted that in the instant case any suggestion of unfairness on the part of the Tribunal was negated by the Tribunal’s offer to the applicant to provide a certificate prior to the hearing.  The Tribunal found that the applicant could not to do so because he was unfunded.  In those circumstances it could not possibly be said that he was enrolled in a course at the time the decision was made. 

18. It follows from what I have said above that I am not satisfied that the Tribunal fell into jurisdictional error by misinterpreting the Regulations and the application must therefore be dismissed.  The applicant must pay the first respondent’s costs assessed in the sum of $6,646.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  23 August 2013