Li v Minister for Immigration
[2008] FMCA 941
•7 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 941 |
| MIGRATION – Application to review decision of Migration Review Tribunal – whether Tribunal erred in determining whether applicant had successfully completed the requirements for a Senior Secondary Certificate of Education. |
| Migration Act 1958 (Cth) ss.359, 476 Migration Regulations 1994 (Cth) Schedules 2, 5A |
| Liu v Minister for Immigration & Anor [2008] FMCA 750 Minister for Immigration and Citizenship v SZLIXand Another (2008) 245 ALR 501 SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401 |
| Applicant: | TIAN LUN LI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3134 of 2007 |
| Judgment of: | Barnes FM |
| Hearing date: | 7 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 7 July 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Ms T Wong |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3134 of 2007
| TIAN LUN LI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Migration Review Tribunal handed down on 12 September 2007 affirming a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) visa.
The applicant, a national of the People's Republic of China, applied for a Student visa on 21 February 2006. At the time of application the applicant held a subclass 571 visa. He provided evidence of attendance in 2004 and 2005 in a Higher School Certificate program for Years 11 and 12 at an institution called St James College. He provided a certificate from that College issued in September 2005 certifying that he had “completed the Year 12 Higher School Certificate course as per the NSW Board of Studies syllabus 2005” together with a College document that was described as an “Academic Transcript (Internal Assessments)” and appears to be a record of marks in assessments at varying times during 2004 and 2005. He also provided a certificate of attendance from the College. The applicant sought the visa to enrol in a Diploma of Hospitality Management course.
The Department advised the applicant that it required certain documentation, including a certified copy of evidence of sufficient English to undertake his nominated course, being one of five specified forms of evidence which included an IELTS Certificate less than two years old or a Senior Secondary Certificate of Education completed in English (i.e. Higher School Certificate (HSC)).
In response the applicant’s migration agent provided a number of documents, including what was described as a “certified copy of HSC certificate”, but was in fact a further copy of the September 2005 certificate from St James College.
The application was refused by a delegate of the first respondent on the basis that the applicant was unable to provide evidence that his English language proficiency met the requirements of the Migration Act 1958 (Cth) and Regulations, in particular he had been unable to provide the evidence required under Schedule 5A 404 to the Migration Regulations.
The applicant sought review by the Tribunal. The Tribunal wrote to him under s.359 of the Migration Act by letter of 19 January 2007 inviting him to give additional information. The letter set out the visa criterion in Migration Regulation 572.223(2)(a)(i) (A) in relation to the requirement of evidence of English language proficiency in accordance with the requirements in Schedule 5A for a Subclass 572 visa and a copy of the relevant part of Schedule 5A 404. The Tribunal advised that the applicant had not provided evidence of his English language proficiency to the Department or Tribunal and invited him to provide the required evidence. It advised him that if he did not do so he would not meet the requirements of reg.572.223(2)(a)(i)(A) and his visa application would be refused.
The applicant's migration agent responded to this letter on 13 February 2007 indicating that they were seeking documents from the New South Wales Board of Studies and were awaiting a response and stated that “In order to provide English language proficiency to the Tribunal, the applicant, fearing that he will not get the evidence from the Office of the Board of Studies in time, undertook an English language proficiency test at Cambridge College International” and that he had been classified as “Upper-Intermediate level”. Copies of documents from Cambridge College International relating to an English level test undertaken by the applicant were provided, together with a copy of a Board of Studies Higher School Certificate Record of Achievement described as a replacement statement reissued on 14 August 2006.
The Record of Achievement certified that the applicant had satisfactorily completed eight units in “Board Developed Courses” in 2005 and a number of units in board developed preliminary courses in 2004, including a 2005 subject described as "2 unit English as a Second Language” in which the applicant achieved an examination mark of 56/100, an assessment mark of 52/100 and an HSC Mark of 54, performance Band 2. The 2005 course reports were provided that described the typical performance in each band. However the Record of Achievement stated that the applicant was “not eligible for Higher School Certificate.”
Also provided to the Tribunal were copies of letters sent by the applicant to the student examination section of the office of the Board of Studies providing an explanation for his failure to have sat for and made a serious attempt in his Higher School Certificate examination in economics. He had received no marks for that examination. He attributed this to “too much seafood the night before” and “a stomach ache” and claimed that after he had done some questions he had not been able to go on with the rest of the questions in the examination.
Further documents were provided to the Tribunal over time, including certification that the applicant had studied English language courses in an institution in China from August 2000 to July 2002 and from August 2002 to January 2004.
The applicant and his adviser missed the first scheduled Tribunal hearing, arriving three hours late. According to a Tribunal file case note a Tribunal officer informed the agent that the Tribunal member would adjourn the hearing and that they would be notified of the new date by facsimile. Further documents were provided to the Tribunal, including a letter of 12 December 2005 to the applicant from the Office of the Board of Studies giving him an opportunity to comment on a “possible non-serious attempt” at the 2005 HSC Economics Examination and advising him that the Rules for the HSC stated that if he did not make a serious attempt at an examination he may not receive a mark in that course and may not be eligible for the award of the HSC.
The applicant attended a Tribunal hearing on 26 March 2007. The only record of what occurred in the Tribunal hearing is the Tribunal reasons for decision in which the Tribunal referred to the documents that had been provided to it, noted that the applicant had arrived late on the first day and that the hearing was adjourned. The applicant gave oral evidence, including an explanation for what occurred during the economics exam. He claimed he had gastroenteritis the day before, that he had to go to the toilet during the exam, that when he came back the exam was nearly over and that he did not receive any marks for the economics paper, although he felt that he had answered some questions and should have received some marks.
The Tribunal was also advised that there had been no response to the request to the Board of Studies for further information and that the applicant had no evidence that he had been awarded the HSC.
The Tribunal recorded that it gave the applicant's migration agent a printout of Schedule 5A 404 to the Migration Regulations which is as follows:
The applicant must give evidence that one of the following applies:
(a) the applicant:
(i) will not undertake an ELICOS before commencing his or her principal course; and
(ii) achieved, in the IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5;
(b) the applicant:
(i) will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course; and
(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 5.0;
(c) the applicant:
(i) is fully funded; and
(ii) has a level of English language proficiency that satisfies his or her proposed education provider; and
(iii) if the applicant is to undertake an ELICOS before commencing his or her principal course – will undertake an ELICOS of no more than 20 weeks duration;
(d) the applicant had, less than 2 years before the date of the application:
(i) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:
(A) in Australia; and
(B) in English; or
(ii) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that:
(A) is specified by the Minister in a Gazette Notice for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English; or
(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; or
(iv) successfully completed a substantial part of a course that:
(A) is specified by the Minister in a Gazette Notice for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English; and
(D) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
(v) successfully completed a foundation course that was conducted:
(A) in Australia; and
(B) in English; or
(vi) successfully completed a course in foundation studies that:
(A) is specified by the Minister in a Gazette Notice for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English;
(e) the applicant achieved, less than 2 years before the date of the application, the required score in a test that is specified in a Gazette Notice under clause 5A102;
(f) 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 Tribunal recorded that the interpreter interpreted clause 5A 404 to the applicant and that there was then a discussion of which part of clause 5A 404 covered the situation. It is relevant to note that under reg.1.44 an applicant for a student visa must give evidence about his or her English language proficiency, financial capacity and other matters in accordance with the requirements set out in Schedule 5A for the subclass of visa and assessment level to which the applicant is subject. The Tribunal found that the relevant assessment level for the applicant as a PRC passport holder (see regs.1.41 and 1.42) was assessment level 4. Hence it considered the criteria in clause 5A 404 (and see reg.572.223(2)(a(i)(A)).
The migration agent claimed that the applicant had passed the IELTS test with a 5.5 result earlier that year. However, the applicant told the Tribunal that he had not yet done the IELTS test.
The agent advised the Tribunal that he sought the opportunity to give the Tribunal the results of an IELTS test. The Tribunal gave the applicant the opportunity to provide documents such as the result of an IELTS test) after the hearing. The applicant was also given the opportunity to provide documents regarding his study of English in the PRC.
The Tribunal discussed with the applicant each of the forms of evidence of English language proficiency in Schedule 5A 404. In particular, the Tribunal indicated that it may be that the applicant had not “successfully completed” the requirements for a Senior Secondary Certificate of Education as he did not receive the HSC. When he stated that he “got the HSC from his school”, the Tribunal responded that this might not be so as the Higher School Certificate Record of Achievement stated “Not eligible for Higher School Certificate”.
After the hearing a Tribunal officer telephoned the migration agent and asked whether the applicant had sat an IELTS test as discussed at the hearing and with what result. The agent advised that she had not been able to contact the applicant. However on 4 September 2007 a document was faxed to the Tribunal, being a Test of English Language Proficiency (TELP) issued by Australian Pacific College which showed the applicant had completed an examination on 29 August 2007 and received stated grades, including an overall grade of A-. Included in the documents was an equivalence chart which showed TELP grades and IELTS equivalents. This document arrived after the Tribunal had written, but not handed down, its decision. In its reason for decision it stated that when it received this document it recalled its decision and a new decision was prepared.
However it found in relation to this English language test that the TELP test was not an IELTS test (an International English Language Testing System Test as defined in reg.1.03 of the Migration Regulations). Hence the TELP test did not satisfy either of the paragraphs in Schedule 5A 404 which referred to an IELTS test.
The Tribunal referred to the fact that under the applicable Gazette Notice, the relevant “assessment level” for an applicant from China was assessment level 4. It considered whether the applicant met any of the criteria in the applicable part of Schedule 5A, that is clause 5A 404, in relation to English language proficiency as required by reg.572.223(2)(a)(i)(A) which relevantly is as follows:
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 572 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 …
In relation to paras 5A 404(a) and (b), as set out above, the Tribunal found “no evidence” that the visa applicant had “undertaken an IELTS test and achieved an Overall Band Score of at least 5.5” and that there was “no evidence before the Tribunal that the visa applicant has undertaken an IELTS test and achieved an Overall Band Score of at least 5.0”. Hence he failed to satisfy the criterion in item 5A 404(a) or (b).
The Tribunal also found that the applicant did not meet para 5A 404(c) as there was no evidence that he was fully funded. It then dealt with 5A 404(e), which is that the applicant “achieved less than 2 years before the date of application, the required score in a test that is specified in a Gazette Notice under cl.5A102”. It found “no evidence” that the applicant had achieved such a score in such a test.
In relation to para 5A 404(f) (which is that the applicant has a level of English language proficiency that satisfied the proposed education provider and at least five years study in English undertaken in one or more specified countries; being Australia, Canada, New Zealand, South Africa, the Republic of Ireland, the United Kingdom and the United States of America) the Tribunal found that while the applicant had provided evidence of three years study in English in Australia, there was no further study undertaken in any of the other countries specified in that provision.
The Tribunal then considered what was perhaps the main paragraph relied on by the applicant, para 5A 404(d). In relation to the requirement that the applicant had “successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted” in Australia and in English, the Tribunal noted that the legislation did not define "Senior Secondary Certificate of Education”. It had regard to and adopted the approach taken in the Australian Qualifications Framework which defines "Senior Secondary Certificate of Education" (SSCE) as preparing candidates to enter “university; TAFE institutions and other formal training programs; the workplace and other life roles” and states that the SSCE may be gained “most commonly through two years full time study following completion of Year 10” and that it is referred to by local titles at State or Territory level as follows: “NSW Higher Education Certificate (HSC)”.
The Tribunal considered a document from St James College which stated that the applicant had completed Year 12 of the HSC course, but found that this in itself was “not enough to satisfy the test in (d)(i) that he has ‘successfully completed the requirements’ for the HSC”.
It also had regard to the Board of Studies NSW Higher School Record of Achievement, which referred to satisfactory completion of some Higher School Certificate subjects, but also stated "Not eligible for Higher School Certificate". It found that “On a plain reading of (d)(i) this meant that the applicant has not successfully completed the requirement for the [Higher School Certificate]”. The Tribunal found that this finding was supported by the New South Wales Board of Studies Assessment, Certification and Examination (ACE) Manual which in section 8.2 stated that:
To be eligible for the award of the Higher School Certificate, students must
…
(d) sit for and make a serious attempt at the requisite Higher School Certificate external examinations.
The Tribunal found that the applicant had been asked to provide comments to satisfy the Supervisor of Marking’s allegation that he may not have made a serious attempt at an examination and that “these were apparently not accepted, and the HSC was not awarded to him”. It found that he had not satisfied paragraph 8.2(d) of the ACE eligibility requirements and was not eligible for the award of the HSC and that he had not satisfied the test in para 5A 404(d)(i) that he had “successfully completed the requirements” for the HSC.
In relation to para 5A 404(d)(ii) the Tribunal had regard to the documents the applicant had provided in relation to his studies in China. It found that he could not satisfy this paragraph because the courses studied in China were “not specified by the Minister in a Gazette Notice as required”. Nor did he meet para 5A 404(d)(iii), which relates to successfully completing a substantial part of a course in English leading to a qualification at Certificate IV level because although he had started a Certificate III course and intended to continue to a Certificate IV course, he had not done so “as the holder of a student visa” as required by Schedule 5A. Nor had he successfully completed a specified course overseas leading to a Certificate IV qualification as required by para (d)(iv), as the course conducted in the PRC was not gazetted by the Minister as required.
The Tribunal also found that there was no evidence that the applicant had successfully completed a foundation course (para 5A 404(d)(v)), being a course “registered as foundation studies”. Nor was there any evidence before the Tribunal that the applicant had completed a course that had been specified by the Minister in a Gazette Notice within para 5A 404(d)(vi).
As a result the Tribunal found that the applicant failed to satisfy para 5A 404(d). As he had not given evidence of his English language proficiency in accordance with the applicable requirements in Schedule, the Tribunal found that he did not meet one of the requirements for the class of visa for which he applied, being the criterion in reg.572.223(2)(a)(i)(A). Hence the Tribunal affirmed the delegate's decision.
The applicant sought review by application filed in this Court on 10 October 2007. He filed a typed version of his application on 30 October 2007. The only ground in that application is:
Migration Legislation does not define Senior Second (sic) Certificate of Education. My year 12 Higher School Certificate is based on NSW Board of Studies Syllabus. It should be qualified as Senior Second (sic) Certificate.
The applicant attended a directions hearing and orders were made for the filing of further affidavit evidence and written submissions. He did not file further affidavit evidence or written submissions.
On the day when the matter was first listed for hearing a solicitor appeared for the applicant. The hearing was adjourned to enable the applicant to file and serve any amended application, any affidavit evidence and written submissions. However no further documents were filed by or for the applicant who appeared before the Court today unrepresented.
The applicant contended that there were a number of ways in which he had endeavoured to and felt he had met the requirements of the applicable Regulations. I understand his complaints in this respect take issue with the Tribunal consideration of the individual requirements of Schedule 5A which he addressed. He also contended generally that he was not treated fairly when he attended the Tribunal hearing and expressed concern about whether the Tribunal had actual or apprehended bias against him because he missed the first Tribunal hearing. He also took issue with the conduct of his migration agent.
Considering first the applicant's contentions in relation to the substance of the Tribunal decision, the applicant took issue in his application and also in oral submissions with the Tribunal’s failure to be satisfied that he had met the requirements of para 5A 404(d) which required evidence that the applicant had successfully completed the requirements for a Senior Secondary Certificate of Education, in a course conducted in Australia and in English.
The applicant referred to the documents which he provided to the Tribunal, in particular the certificate from St James College and the information from the Board of Studies in relation to the HSC subjects he had satisfactorily completed. He explained that he had not received any response from the Board of Studies in his attempt to satisfy them that he had made a serious attempt at the economics exam for which he did not receive any marks.
The Tribunal observed in its reasons for decision that “the legislation does not define the Senior Secondary Certificate of Education”. An issue arises as to whether or not the Tribunal erred in the manner in which it treated a Senior Secondary Certificate of Education as equivalent to satisfactory completion of the requirements for the Higher School Certificate. In the absence of a definition of Senior Secondary Certificate of Education in the Act or Regulations the Tribunal had regard to a number of sources of information, being the School Certification that the applicant had completed Year 12 of the HSC Course, the applicant’s Board of Studies Record of Achievement, the Australian Qualifications Framework and the Board of Studies Assessment Certification and Examination Manual in determining whether the applicant had given evidence that para 5A 404(d)(i) applied.
In effect the applicant takes issue with the Tribunal conclusion that a Senior Certificate of Education meant the HSC and that he had not “successfully completed the requirements” for the HSC because he was not eligible for the award of the HSC.
This issue was considered by Smith FM in the recent decision of Liu v Minister for Immigration & Anor [2008] FMCA 750. No other relevant authority was cited to me. The decision of Smith FM is directly in point. Not only does it relate to the specific issue of whether or not a student who attended St James College (the same College as this applicant did) and produced a similar certificate from the College stating that he had completed the Year 12 Higher School Certificate course met the requirements of Schedule 5A 404, but it also addressed the correctness of a Tribunal determination that the term Senior Secondary Certificate of Education was a generic title for the Senior Secondary School qualification issued by the State and Territory governments which in the context of New South Wales referred to “the award of the HSC” (Liu at [13]), that is, the successful completion of the HSC according to Board of Studies requirements.
It appears that the applicant is not in this case suggesting that in fact he had such a qualification or that he was eligible for the Higher School Certificate (although he had endeavoured to satisfy the Board of Studies of his eligibility in that regard). Rather, he takes issue with the Tribunal's view that the award of a Higher School Certificate was required by the language of para 5A 404(d)(i).
As Smith FM observed in Liu at [15] such a challenge to the Tribunal's opinion may be seen as raising “issues of mixed fact and law”, such that it may be assumed “that an error of the Tribunal on this issue would provide jurisdictional error, for which the Court could grant relief under s.476 of the Migration Act 1958 (Cth).”
In Liu his Honour concluded that the intended meaning of Senior Secondary Certificate of Education in item 5A 404(d)(i) was the successful completion of the HSC (in New South Wales) according to Board of Studies requirements as found by the Tribunal in that case. I agree. As his Honour stated at [16]: “the language of item 5A404(d)(i) clearly points towards” a construction requiring proof of successful completion of the requirements for the HSC according to Board of Studies requirements. Smith FM continued:
The regulation assumes that there are discoverable “requirements for” the qualification which is referred to, and that they involve a judgment in relation to whether the completion of an educational course has been “successful”. In a context where the words “Senior Secondary Certificate of Education” are in capital letters, the implication is that a technical reference is being made to a recognised type of educational certificate, which is issued after a process of assessment of results obtained after studying in a secondary education course.
Hence the Tribunal did not err in finding that para 5A 404(d)(i) required proof of successful completion of the requirements for a certificate which in New South Wales was the Higher School Certificate.
I have considered the Certificate issued by St James College in this case, but as Smith FM found in Liu (at [17]) in relation to a similarly worded certificate such a certificate “would not appear to be directed at providing such a qualification”. It does not assess the sufficiency of the results in the academic transcript attached, but rather enrolment and attendance at classes for the Board of Studies Higher School Certificate courses. The certificate does not on its face say anything about the applicant's achieved level of English proficiency. There was no error in the Tribunal finding that this did not of itself establish that the applicant had successfully completed the requirements for the HSC.
The Higher School Certificate Record of Achievement states that the applicant had successfully completed a number of courses, but that he was “Not Eligible for the Higher School Certificate”. Of concern is the fact that the applicant did satisfactorily complete the”2 unit English as a Second Language” in the Higher School Certificate (albeit at the level of the lowest Band above the minimum standard expected). This part of Schedule 5A relates to demonstration of English language proficiency and it is perhaps understandable that the applicant feels aggrieved.
However the difficulty that the applicant faces is that both Schedule 5A and the Regulations are expressed to impose mandatory requirements in relation to particular forms of evidence. The relevant provision (in item 5A 404(d)(i)) is not expressed to encompass evidence that the applicant successfully completed “a substantial part of a course” such as a part of the requirements for the award of the Higher School Certificate, or indeed that an applicant had successfully completed the subject of English as part of a Senior Secondary Certificate of Education. Rather the requirement is that he “successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:
(A) in Australia and;
(B) in English”.
Schedule 5A is concerned with the demonstration of English language proficiency. That is apparent from the various ways in which its requirements may be satisfied, including undertaking a particular English language test (the IELTS test). It does not of itself require proficiency in other subjects such as economics. However one of the ways in which the requisite level of English language may be demonstrated is by achievement of a particular educational level in courses that were conducted in the English language.
The view could be taken that if an applicant had successfully completed the requirements for a Higher School Certificate English subject conducted in English in Australia the policy objective of such a provision requiring evidence of English language proficiency would be met. Indeed, in a sense it could be said that the applicant had successfully completed the requirements for a “course” in the sense of a course in English as a second language. However it is clear that in the context of Schedule 5A the requirement is completion of a course of study conducted in the English language and (as discussed above) that successful completion of the requirements for a Senior Secondary Certificate of Education is required, not simply completion of one subject studied at that level, which would not of itself meet the requirements for the award of the “Certificate”.
No discretion is given to the decision maker in relation to the evidence required as to English language proficiency. Clause 5A 404 states that the applicant must give evidence of one of a number of specified things and, as indicated above, what is required for item (d)(i) is not completion of the requirements for a single subject or even a substantial part of the requirements for a Senior Secondary Certificate of Education (as is provided for in some other paragraphs which refer to successful completion of a “substantial part” of certain courses). Rather this provision requires evidence of completion of the requirements of a Senior Secondary Certificate of Education in a course conducted in Australia and in English. In that context the reference to a “course” is clearly a reference to where and the language in which the course is conducted, and not to an individual subject and no error is established in the Tribunal’s failure to find that satisfactory completion of the subject English as a Second Language at Higher School Certificate level came with item (d)(i).
As Smith FM stated in Liu at [18] in the context of the Australia educational system, as described in the extrinsic material referred to by the Tribunal:
… the term “Senior Secondary Certificate of Education” takes a confirmed meaning, of a qualification issued by a government educational agency. The draftsperson has not thought it necessary to provide a definitional description which lists the various names of respective State and Territory senior secondary school qualifications, appearing to rely upon an inherent and understood meaning of its reference.
On that basis the intended meaning of the provision which requires successful completion of the requirements for a Senior Secondary Certificate was as found by the Tribunal. As in Liu, to the extent that this “required the Tribunal to identify the meaning of a technical term” (Liu at [19]) no error of law is revealed in the Tribunal’s construction of the language of item 5A 404(d)(i). Nor is any error established in its application of the language of that provision to the evidence before it. It was not bound to accept that the Certificate from St James College, the Higher School Certificate Record of Achievement or any other material provided by the applicant constituted evidence that satisfied the criterion in item 5A 404(d)(i).
Hence, the contentions that the applicant makes in relation to the Tribunal's failure to accept the Certificate which he provided from the St James College or the results of his Higher School Certificate Record of Achievement as meeting item 5A 404(d)(i) do not establish jurisdictional error on the part of the Tribunal.
This may seem, as the applicant indicated, a somewhat harsh result given that he had passed (albeit just passed) English as a second language at Higher School Certificate level and was studying a course leading to a qualification at Certificate III level. However the Tribunal is not afforded a discretion to determine whether the applicant has demonstrated English proficiency by a method other than that provided for in the applicable regulation.
Other issues the applicant raised related to the other forms of evidence that he provided to the Tribunal. He took issue with the fact that he had provided certificates regarding his study of English in the People's Republic of China and in Australia. However no error is demonstrated in the Tribunal's finding that the applicant’s study in China did not meet the requirements of that part of para 5A 404(f) which allowed for a level of English language proficiency and evidence of study in English undertaken in specified countries, as that list of countries did not include China.
The applicant also took issue with the Tribunal finding in relation to the English language tests for which he had provided results. He had undertaken two English language tests. However no error is demonstrated in the Tribunal's finding that neither of those tests was an “IELTS test” as defined in the Migration Regulations and required by reg.5A 404. The first test (from Cambridge College International) does not purport to give grades expressed as a point score in a manner that the IELTS test does. The second test (the TELP test from Australian Pacific College) provides an equivalence for IETLS results. However no error, let alone a jurisdictional error, is apparent in the Tribunal finding that the TELP test was not in fact an IELTS test and that an IELTS test result was required by the applicable regulation.
I note in that respect that while the TELP information was provided after the Tribunal had made but not handed down its decision, it nonetheless had regard to that document, consistent with its indication to the applicant that if he wanted to provide documents he could do so.
In the absence of evidence before the Tribunal that the applicant had undertaken an IELTS test, no jurisdictional error is apparent in its view that the applicant did not meet either paragraph (a) or (b) of clause 5A 404. The applicant seemed to indicate that he was not able to provide an IELTS test because he had not needed one when he first came to Australia and first obtained a visa. However the Tribunal clearly understood that what was in consideration was whether or not there was an IELTS test, the results of which were available to it at the time of decision, that had been undertaken less than two years before the date of the application for the visa in issue. The Tribunal gave the applicant the opportunity to undertake such a test and provide it with the results. He did not do so. The Tribunal has not been shown to have erred in that regard.
That brings me to the complaint the applicant made in relation to his migration agent. There is no evidence from the applicant in these proceedings other than his affidavit annexing a copy of the Tribunal decision. He claimed in oral submissions that his migration agent had lied to him. He appeared to indicate that the agent had indicated that the tests he undertook were required and would satisfy the Tribunal, and that that was why he had needed to undertake them. The applicant asked, rhetorically, why his agent did not tell him that he needed to do an IELTS test, but asked him to do two other tests.
Insofar as this contention raises a suggestion that there may have been fraud on the part of the migration agent that somehow affected the Tribunal decision, it is relevant to have regard to SZFDE v Minister for Immigration and Citizenship (2007) 81 ALJR 1401 in which the High Court considered circumstances in which an applicant relied on fraudulent advice of a migration agent and declined an invitation to appear at a Tribunal hearing. In that case there was a finding of fraud on the part of the migration agent. Their Honours noted that, as French J who dissented in the Full Court had correctly emphasised (at [53]):
there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. (Footnote omitted).
However the High Court distinguished the particular circumstances in SZFDE (where the person providing migration advice, who was no longer a registered migration agent had advised an applicant not to attend a Tribunal hearing). In Minister for Immigration and Citizenship v SZLIXand Another (2008) 245 ALR 501 there was a contention that an applicant had not been notified by his migration agent of a hearing and that an unqualified person had been providing immigration assistance. However as the Full Court of the Federal Court pointed out, there were no facts on which the Court at first instance had been able to make findings in that regard. Their Honours relevantly went on to state (at [33]) that there are limits to the operation of the doctrine of fraud in the context of the Migration Act, indicating that:
… SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal.
Taking what the applicant says at its highest, these are not circumstances in which the allegations are such as to indicate any fraud on the Tribunal in the requisite sense, even if the conduct of the adviser could be said to be negligent. There is no evidence before the Court to demonstrate that the agent gave or knew that she was giving dishonestly false information to the applicant or that she had any motivation to do so. If the agent gave incorrect or negligent advice in relation to the type of test that had to be completed by the applicant, that does not amount to fraud vis-à-vis the applicant or constitute an interference with the Tribunal's ability to meet its obligations procedurally under the Migration Act in the relevant sense. The concerns the applicant raised about his migration agent do not establish jurisdictional error.
I also note that there was discussion at the Tribunal hearing (which the applicant attended) of the requirements for an IELTS test under Schedule 5A. It cannot be suggested that the applicant was not informed of the requirements for the visa or that the Tribunal did not meet its obligation to give the applicant the requisite opportunity to attend a hearing to address the issues and give evidence in relation to the decision under review.
More generally, the applicant complained of a lack of fairness. Insofar as he alleges bias or apprehended bias on the basis that the original Tribunal hearing was adjourned, that is not made out. The Tribunal allowed him an adjournment after his late arrival. There is nothing in the material before the Court to indicate either actual bias in the sense of predetermination or apprehended bias from the perspective of the appropriately informed lay observer. The Tribunal gave the applicant the opportunity to provide further information if he wished to do so, having clearly raised with him, both in the s.359 letter and at the hearing, the difficulties that he faced in relation to each of the possible ways of meeting the requirements of Schedule 5A.
The applicant's contention that the situation was not fair because he was “innocent” is not a matter in relation to which the Court has jurisdiction. It is for the applicant to consider whether to have resort to any discretion that the Minister may have in light of the circumstances in which he finds himself. The Court is not empowered either to grant a visa on humanitarian or general fairness grounds or to otherwise take any action in relation to the applicant's concerns about the fairness of the situation in which he finds himself.
As no jurisdictional error has been established, the application must be dismissed.
RECORDED NOT TRANSCRIBED
The applicant has been unsuccessful. The Minister seeks that the applicant meet his costs in the sum of $4,400. This amount is in addition to the $840 costs thrown away by the adjournment on the last occasion. I note the provisions of the Federal Magistrates Court Rules. I have had regard what was said by counsel for the Minister. I consider that the amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 28 July 2008
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