MAESTRO v Minister for Immigration
[2016] FCCA 1095
•13 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAESTRO & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1095 |
| Catchwords: MIGRATION – Application for Student (Temporary)(Class TU) visa – review of decision of Migration Review Tribunal – whether the Tribunal misunderstood the meaning of “substantial part” in cl.5A407 of the Migration Regulations 1994 (Cth) – whether the Tribunal misunderstood the meaning of “leading to” in cl.5A407 – jurisdictional error– writs issued. |
| Legislation: Migration Regulations 1994 (Cth), cll.572.223(2)(a), 5A204, 5A507(1)(d) |
| Cases cited: Other materials: |
| First Applicant: | WINSEL MAESTRO |
| Second Applicant: | DAYLEN CANDELARIO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3281 of 2014 |
| Judgment of: | Judge Smith |
| Hearing date: | 5 April 2016 |
| Date of Last Submission: | 5 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Jones, Parish Patience Immigration Lawyers |
| Counsel for the First Respondent: | Mr D. Hughes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ of certiorari issue directed to the second respondent quashing the decision of the Tribunal dated 21 October 2014.
A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 23 May 2014 in accordance with the law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3281 of 2014
| WINSEL MAESTRO |
First Applicant
| DAYLEN CANDELARIO |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants are husband and wife. On 2 April 2014 they applied for a Student (Temporary) (Class TU) visa. The first applicant was the primary applicant. For that reason, I will refer to him as the applicant.
The application indicated that the applicant had previously undertaken a Building and Construction course and intended to undertake a Hospitality (Commercial Cookery Certificate III) course from 15 July 2013 until 30 June 2014, and then a Hospitality Diploma course from 14 July 2014 until 30 June 2015. Confirmation of enrolment in respect of each of those courses was included with the application.
On 23 May 2014 a delegate of the Minister made a decision to refuse to grant the applicant a student visa and the applicant applied to the Migration Review Tribunal[1] for review of that decision.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
A criterion for the grant of the student visa was that the applicant give evidence in accordance with the requirements mentioned in sch.5A to the Migration Regulations 1994 (Cth) for the highest assessment for the applicant: sub-cl.572.223(2)(a) to sch.2 to the Regulations. In the circumstances, that meant the applicant had to give evidence that:
5A507
…
(d)the applicant had, less than 2 years before the date of the application:
…
(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;
…
In response to that criterion, the applicant sent a number of documents to the Tribunal including:
i)Confirmation of enrolment in a course described as “Certificate IV in Commercial Cookery”, the start date for which was 14 July 2014 and the end date 30 December 2015;
ii)two transcripts of academic record in respect of the Certificate IV in Building and Construction course, one dated 4 July 2012 and the other 17 December 2012;
iii)a Certificate III in Commercial Cookery dated 2 July 2014; and
iv)a transcript for the course described as “Certificate III in Commercial Cookery” dated 17 December 2013.
The Tribunal affirmed the delegate’s decision on 21 October 2014. The following is the critical passage in the reasons for its decision:
[13]Cl.5A507(d)(iii) requires the applicant, as the holder of a student visa, to have 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 (AQF) at the Certificate IV level or higher. The applicant has provided a transcript of his academic record in a TAFE NSW AQF Certificate IV course in Building and Construction. The transcript indicates that the number of course units in which he is assessed “Not yet Competent” exceeds the number of units in which he is assessed “Competent” or higher. The Tribunal considers that since the applicant has not successfully completed at least half the units in his Certificate IV course, he cannot be deemed to have successfully completed a substantial part of the course. The Tribunal is therefore not satisfied that the applicant meets cl.5A507(d)(iii).
The applicant now seeks judicial review of the Tribunal’s decision.
Consideration
Ground of application- particular 1
The applicant argues that para.[13] of the Tribunal’s reasons reveal two errors: first, that it misunderstood the meaning of “substantial part” in cl.5A407 in that it proceeded on the basis that it meant “at least half of the units” in a particular course. The second asserted error is that the Tribunal misunderstood the meaning of “leading to” in cl.5A407. They argue that a course can be described as leading to a qualification if it ultimately leads to that qualification. Thus, the Certificate III course in Commercial Cookery could have been leading to a Certificate IV qualification and the Tribunal erred by not taking that into account.
The word “substantial” has a range of meanings. In Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557; [1982] FCA 223 Lockhart J said, at 563:
The word “substantial” is imprecise and ambiguous. Its meaning must be taken from its context. It can mean considerable or big: Palser v. Grinling [1948] AC 291 per Viscount Simon (at p. 317). It can also mean not merely nominal, ephemeral or minimal. Sometimes it is used in a relative sense, and at other times to indicate an absolute size or quantity.
His Honour found that, in the context of a statutory provision concerning competition (s.45A Trade Practices Act 1974 (Cth)) the word substantial was used in a relative sense.
In Palser v Grinling [1948] AC 291, the case referred to by Lockhart J, Viscount Simon considered the meaning of “substantial” in the phrase "substantial portion of the whole rent". He said at 316-317:
… It is plain that the phrase requires a comparison with the whole rent, and the whole rent means the entire contractual rent payable by the tenant in return for the occupation of the premises together with all the other covenants of the landlord. “Substantial” in this connexion is not the same as “not unsubstantial”, i.e., just enough to avoid the “de minimis” principle. One of the primary meanings of the word is equivalent to considerable, solid, or big. It is in this sense that we speak of a substantial fortune, a substantial meal, a substantial man, a substantial argument or ground of defence. Applying the word in this sense, 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, the onus being on the landlord. If the judgment of the Court of Appeal in Palser's case were to be understood as fixing percentages as a legal measure, that would be going beyond the powers of the judiciary. To say that everything over 20 per cent. of the whole rent should be regarded as a substantial portion of that rent would be to play the part of a legislator: if Parliament thinks fit to amend the statute by fixing percentages, Parliament will do so. Aristotle long ago pointed out that the degree of precision that is attainable depends on the subject matter. There is no reason for the House to differ from the conclusion reached in these two cases that the portion was not substantial, but this conclusion is justified by the view taken on the facts, not by laying down percentages of general application.
That passage was referred to by Deane J in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union & Others (1979) 27 ALR 367 at 382:
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 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. The difficulties and uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v Grinling ([1948] 1 All ER 1 at 11; [1948] AC 291 at 317) where, after holding that, in the context there under consideration, the meaning of the word was equivalent to “considerable, solid or big”, he said: “Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case…” … In the context of s 45D(1) of the Act, the word 'substantial' is used in a relative sense in that, regardless of whether it means large or weighty on the one hand or real or of substance as distinct from ephemeral or nominal on the other, it would be necessary to know something of the nature and scope of the relevant business before one could say that particular actual or potential loss or damage was substantial. As at present advised, I incline to the view that the phrase, substantial loss or damage, in s 45D(1) includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal.
See also Commissioner for Superannuation v Scott (1987) 13 FCR 404; [1987] FCA 79; Seneviratne v Minister for Immigration & Citizenship [2009] FMCA 907; Kabir v Minister for Immigration & Citizenship (2010) 243 FLR 1; [2010] FMCA 132.
In the present context, it is evident that the word substantial requires that a considerable level of completion is required. Although the applicant initially argued that in this case it required a qualitative analysis he correctly moved away from that position. In my view, the evidence and submissions made by a visa applicant may require some qualitative analysis (where, for example, one unit out of 20 carries the bulk of the assessment for a particular course), but there was no such evidence or submission in this case.
Here, the Tribunal stated that, because the applicant had not successfully completed “at least half of the units” in the Certificate IV course, “he cannot be deemed to have successfully completed a substantial part of the course”. At first glance, this reasoning indicates that the Tribunal applied some fixed percentage to the meaning of substantial. If that is what it did, there is no question that it was wrong. As explained in the authorities referred to above, the use of the word substantial does not reflect such rigidity in any context. The only real question is whether that is what the Tribunal meant.
It is well established that a Court in judicial review proceedings should not comb through the reasons of an administrative decision maker in a detailed search for error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. That is what is often called giving a ‘beneficial construction’ to those reasons. However, the approach does not go so far as to require or even enable the rewriting of the reasons for a particular decision. Rather, a common sense and realistic approach should be taken to understanding the reasons as a whole to see what the Tribunal was saying and it does not follow that a beneficial construction should or could result in a situation where words are construed as meaning something other than what they, in a plain and common sense way, must be intended to mean: AHX15 v Minister for Immigration & Border Protection [2015] FCA 1183 at [24] (McKerracher J) referring to Fang Wangv Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044 at [14] – [15] (Allsop J as his Honour then was).
Further, this approach does not require that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour: SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9 at [26] (Stone J).
Having regard to those principles, I consider that the Tribunal did apply a mathematical approach to the issue and so fell into error. While I consider that its use of the word “deemed” can be seen as infelicitous, the strong sense of the passage taken as a whole is that the Tribunal proceeded on the basis that the applicant had to have successfully completed at least 50% of the relevant course in order to satisfy the criterion. For that reason, it failed to address the question posed by sub-cl.572.223(2)(a) to sch.2 to the Regulations and cl.5A507 in sch.5 and so constructively failed to exercise its jurisdiction.
Particular 2
The second particular concerns the meaning of the phrase “leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher”. The applicant argues that this phrase captures any course (except a foundation course) that ultimately leads to a Certificate IV qualification. In the present case, because the applicant’s Certificate III course preceded his Certificate IV course (upon completion of which he would have a qualification at a Certificate IV level), that course was “leading to” that qualification.
The Minister argues that the ordinary meaning of the words “leading to” requires the course in question to result, on completion, in a qualification that is Certificate IV or higher. The Minister also argued that, in any event, there was no evidence to suggest that the Certificate III course was ultimately leading to the relevant level of qualification.
The task of construction must begin with a consideration of the statutory text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).
The principles relating to the construction of regulations are the same as those applicable to the construction of the enabling legislation: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398; King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 195. However, in construing delegated legislation such as the Regulations, it must be kept in mind that regulations are ordinarily drafted with less care than principal legislation: see Environment Protection Authority v Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499 at [44]; Day v Harness Racing New South Wales [2014] 88 NSWLR 594 at 610 [79].
There are a number of ordinary meanings of the intransitive verb lead. In respect of a road, it can mean “to serve as a passage for, conduct to or into a place” or “to have a specified goal or direction”. Thus, all roads lead to Rome. The words “to lead to” can also mean “to have as a result or consequence”: see Oxford Online Dictionary. The difference between the two senses is one of proximity or immediacy. One might well, for example, be on a highway (leading) to hell, but have only just started out on that path and, taking into account the potential for stopping on the by-ways, still be a long way from the end. The question is whether the context requires the proximity contended by the Minister or allows the distance suggested by the applicant.
Clause 5A507 bears the heading “English language proficiency”. In light of that, the clause is evidently focused on establishing the proficiency of a visa applicant in the English language. That is ordinarily done by evidence of language testing under the International English Language Testing System (IELTS). However, sub.cl.5A507(1)(d) provides an exception in the case of an applicant who has undertaken a certain amount of study.
Prior to 1 July 2005 the regulation relevantly provided:
…
(B)as the holder of a student visa — studied towards a qualification from the Australian Qualifications Framework at the Certificate IV level or higher in a course that was conducted in the English language;
…
The regulation was then amended so that it provided:
(ii) had, less than 2 years before the date of the application:
(A)successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted in Australia and in English; or
(B)as the holder of a student visa — successfully completed a qualification from the Australian Qualifications Framework at the Certificate IV level or higher, in a course (other than a foundation course) that was conducted in English; or
(C)studied towards a foundation course that was conducted in Australia and in English;
…
The current form of the regulation was introduced by item [3] to sch.3, of the Migration Amendment Regulations 2005 (No 8) (Cth). In the explanatory statement issued by the Minister in connection with the amending instrument, the amendment was explained as follows:
…
Prior to 1 July 2005, these applicants gave evidence of their English language proficiency by having studied towards a qualification from the Australian Qualifications Framework in a course at the Certificate IV level or higher, that was conducted in English. These applicants were therefore exempted from being required to undergo English language proficiency testing and give evidence of an International English Language Testing System (IELTS) score. However, since this provision did not specify a minimum period of study, it did not correctly reflect the intention of the exemption, which was to recognise the English proficiency developed by international students over the course of their tertiary studies.
This provision was amended on 1 July 2005 to provide that applicants could meet the requirements by having successfully completed a qualification from the Australian Qualifications Framework in a course at the Certificate IV level or higher that was conducted in English.
However, this provision did not allow sufficient flexibility to deal with the impact on students who had been studying successfully in Australia, and who needed a further visa to complete their course. Students who had not successfully completed their whole course, and who required a further visa in order to complete their course, would have been required to undergo English language proficiency testing and provide an IELTS score as evidence of their English language proficiency. This failed to recognise the English language proficiency developed by applicants over the course of their study, and the importance of ongoing satisfactory academic performance.
The effect of this amendment is therefore to allow Assessment Level 4 student visa applicants, who have successfully completed a substantial part of a course, rather than the whole course, at the Certificate IV level or higher in the Australian Qualifications Framework, to be eligible for a further Subclass 570 (Independent ELICOS Sector) visa without having to provide an IELTS score. Foundation courses are excluded from this provision.
…
Although this part of the statement was focused on a different clause in the Regulations (cl.5A204), it is made clear later that it applied equally to cl.5A507.
The Minister relied on the last paragraph of the explanatory statement set out above. That paragraph does support his contention; however, it does not explain why foundation courses are expressly excluded. If the Minister’s contention were correct, it would have been unnecessary to make that exclusion: it is evident from its title that a foundation course is not a Certificate IV course or higher. The answer to that is that, prior to the amendment, study towards a foundation course was sufficient whereas, after the amendment, foundation courses continued to be expressly recognised, but in order to count, they must have been successfully completed: sub-cll.5A507(1)(d)(v) and (vi). Thus, the reference to foundation course is for the purposes of clarification rather than to inform the meaning of “leading to”.
The purpose of the amendment, as explained in the explanatory statement, was to allow flexibility by allowing students to complete the relevant course after applying for the visa without having to undergo English language testing. The relevant change was from the completion of a Certificate IV course or higher, to successful completion of a substantial part of the same course. The meaning contended for by the Minister better fulfils that purpose and so is the correct one.
For those reasons, the course referred to in sub-cl.5A507(1)(d)(iii) is one that must, on completion, have the consequence of a qualification at the Certificate IV level or higher.
It was not in dispute that the Commercial Cookery Certificate III course undertaken by the applicant did not meet that description. Accordingly, the Tribunal did not err by failing to consider whether the applicant had successfully completed a substantial part of that course.
Conclusion
The Tribunal’s decision was affected by jurisdictional error in that it misunderstood the meaning of “substantial part”. Writs of certiorari and mandamus will issue quashing the decision and requiring the Tribunal to complete the review of the delegate’s decision.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 13 May 2016
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