Mahohoma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 2206
•12 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAHOHOMA v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2206 |
| Catchwords: MIGRATION – Temporary Graduate (Post-Study Work) (subclass 485) visa – interpretation of “immediately before the day the application was made” – whether absurdity or ambiguity in literal interpretation – where the meaning of the words clear – application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.2, 15AA, 36 Migration Act 1958 (Cth), ss.359, 476 Migration Regulations 1994 (Cth), reg.1.15B, 1.15C, 1.15D, 2.11, 2.12D, 2.63A, 2.64, 2.75A, 2.78, cls.485.212, 485.213, 485.214, 485.221, 485.231 |
| Cases cited: Kaur v Minister for Immigration & Border Protection [2015] FCA 584 |
| Applicant: | TSVAKAI MAHOHOMA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 318 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 10 August 2020 |
| Date of Last Submission: | 10 August 2020 |
| Delivered at: | Perth |
| Delivered on: | 12 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr H Glenister |
| Solicitors for the Applicant: | William Gerard Legal Pty Ltd |
| Counsel for the First Respondent: | Ms A Ladhams |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 318 of 2019
| TSVAKAI MAHOHOMA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Zimbabwe. She arrived in Australia on a Student visa on 7 February 2013 (Court Book (“CB”) 80).
On 4 August 2017, the applicant applied for a Temporary Graduate (Post-Study Work) (subclass 485) visa (the “visa”) (CB 1-13). In her visa application, when asked whether she had met the relevant study requirements in the six months before the date of her application, the applicant answered “Yes” (CB 1).
The applicant subsequently provided a letter from Murdoch University which indicated that she had completed the requirements of her course on 10 August 2017 (CB 26).
On 30 August 2017, a delegate of the first respondent (the “Minster”) refused to grant the applicant the visa (CB 47-53). The delegate found that the applicant did not satisfy cl.485.221 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the applicant’s study completion date was 10 August 2017. This meant that the relevant study was not completed in the six month period immediately before the date she lodged her application.
On 31 August 2017, the applicant emailed a letter from Murdoch University to the Minister’s Department. That letter stated that the applicant had, in fact, completed her course on 4 August 2017 (CB 58-59). The Minister’s Department responded on 5 September 2017 indicating that the Department was unable to revisit the decision (CB 58).
On 16 September 2017, the applicant sought review of the delegate’s decision in the Administrative Appeals Tribunal (the “Tribunal”) (CB 60-61). The applicant was assisted by a migration agent.
On 8 May 2019, the Tribunal made a request to Murdoch University pursuant to s.359 of the Migration Act 1958 (Cth) (the “Act”). The Tribunal requested information about when the applicant had completed her studies (CB 74). On 29 May 2019, Murdoch University responded by stating that the applicant had completed her course requirements on 10 August 2017 (CB 77).
The applicant subsequently provided academic documents and two letters from Murdoch University indicating that the applicant had completed her course on 4 August 2017 (CB 90-94).
On 8 July 2019, the applicant’s migration agent forwarded written submissions to the Tribunal (CB 102-107).
The applicant attended a hearing before the Tribunal on 9 July 2019 (CB 109-111). She was given additional time to provide further information. The applicant’s migration agent provided further information on 9 July 2019 (CB 112-114).
On 16 July 2019, the Tribunal affirmed the decision to refuse the applicant the visa (CB 118-122).
On 16 August 2019, the applicant filed the application for judicial review in this Court pursuant to s.476 of the Act.
Tribunal’s Decision
The Tribunal’s decision is five pages long and spans 34 paragraphs.
The Tribunal first identified the visa that the applicant had applied for and the basis of the delegate’s decision. The Tribunal then confirmed that the applicant had attended a hearing and had indicated at the hearing that she understood the reason why the delegate had refused to grant her the visa (at [1]-[7]).
The Tribunal then set out the relevant legal provisions and principles as follows:
9. Clause 485.231 requires the applicant to hold a qualification or qualifications of a kind specified by the Minister, conferred or awarded by an educational institution specified by the Minister, for which the applicant’s study must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made. The issue in the present case is whether the applicant meets those requirements.
10. Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses that:
(a)are registered courses; and
(b) were completed in a total of at least 16 calendar months; and
(c) were completed as a result of a total of at least two academic years study; and
(d) for which all instruction was conducted in English; and
(e) the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
11. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6), and cl.485.111). For the purposes of this case, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000.
12. Regulation 2.26AC(6) provides as follows:
“degree means a formal educational qualification, under the Australian Qualifications Framework, awarded by an Australian educational institution as a degree or a postgraduate diploma for which:
(a) the entry level to the course leading to the qualification is:
(i) in the case of a bachelor’s degree — satisfactory completion of year 12 in the Australian school system or of equivalent schooling; and
(ii) in the case of a master’s degree — satisfactory completion of a bachelor’s degree awarded at an Australian tertiary educational institution or of an equivalent award; and
(iii) in the case of a doctoral degree — satisfactory completion of a bachelor’s degree awarded with honours, or a master’s degree, at an Australian tertiary educational institution or of an equivalent award; and
(iv) in the case of a postgraduate diploma — satisfactory completion of a bachelor’s degree or diploma awarded at an Australian tertiary educational institution or of an equivalent award; and
(b) in the case of a bachelor’s degree, not less than 3 years of full-time study, or the equivalent period of part-time study, is required.”
13. Regulation 1.15F(2) defines the term ‘completed’ in relation to a degree, diploma or trade qualification as follows:
(2) In this regulation:
completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.
Note: The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.
14. The term ‘completed’ in r.1.15F(2) of the Regulations was considered in Venkatesan v MIAC [2008] FMCA 409, where the Court held that an applicant completes the academic requirements for a course when they ‘achieve the necessary results or credits to enable [the applicant] to be awarded the degree or diploma’. The Court found in that case that the applicant had completed the course once he had completed and passed the relevant proportions of the course and there was nothing more for the applicant to do of an academic nature. Burchardt FM acknowledged that certain further steps were required, but they were purely administrative steps that did not require any form of academic effort by the applicant or any evaluation of any such effort by the university. The term ‘completed’ was also considered in Sapkota v MIAC [2012] FCA 981 where Cowdroy J held the relevant date for determining when a student has completed the academic requirements is ‘the date when the educational institution decides that the academic requirements have been met, namely, the date on which the results are finalised by the education institution’. The date when the institution informs the student of the result is not the relevant date, nor is the date of conferral of the award.
The Tribunal identified that the issue before it was whether the applicant met the Australian study requirement and, if so, whether the Tribunal was satisfied the relevant requirement was met in the six months immediately before the day of the application (at [15]).
The Tribunal referred to the applicant’s evidence that she had submitted her visa application on 4 August 2017 because she believed she had completed her course, that she had no further information to provide the Tribunal and that she was currently working and hoping to gain experience before applying for jobs in Zimbabwe (at [15]-[18]).
The Tribunal found that cl.485.231(1) of the Regulations was met as the applicant held a Bachelor of Arts (at [19]-[20]). The Tribunal similarly found that the applicant met cl.485.231(2) of the Regulations as the qualification was conferred by Murdoch University (at [21]-[23]).
The Tribunal then explained:
24. Subclause 485.231(3) requires that the applicant’s study for the specified qualification or qualifications met the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made
25. The applicant provided evidence that on 4 August 2017, Dr Mark Jennings, Unit Coordinator and Adjunct Lecturer in Religious Studies at Murdoch University [2017], advised the applicant [Tribunal File: Folio–45] of the following:
“Your paper is not of very high quality, but it was adequate to be awarded the supplementary grade. I have updated your final grade for SOC209 to 50 P, and if the Associate Dean of Teaching and Learning approves it, results will probalby update it shortly that the she had passed the unit of study [SOC209] submitted by the applicant.” [Extract as recorded]
26. Further, consistent with the advice in the correspondence from Dr Jennings to the applicant, the administrative branch of the university would be tasked to update the records. This, the applicant submitted, was then used to provide the applicant with a transcript of completion of the Bachelor of Arts, as at 11 August 2017, which was used to support the application for a 485 Post Graduate visa lodged on 4 August 2017.
27. In evidence and through submissions by the applicant’s representative, the argument was put that the applicant completed the degree course subject to the application on 4 August 2017.
The Tribunal then concluded:
28. If the Tribunal were to accept this evidence, then consideration could be given to the matter based upon the criteria enunciated in Venkatesan v MIAC [2008] FMCA 409 and Sapkota v MIAC [2012] FCA 981 to establish when a course is completed, which would have direct application and relevance in this case. However, based upon the evidence, it is asserted by the applicant, that the course was completed on 4 August 2017, which is the same day as the application lodgement. As such, the Tribunal would need to be satisfied that 4 August meets the criteria.
29. The Tribunal has considered the date of lodgement in the context of compliance and by reference to s.36 of the Acts Interpretation Act 1901.
30. Based s.36 of the Acts Interpretation Act 1901, the Tribunal is satisfied that the specified day in cl.485.221 would be the day the application was made and period of time for completing the Australian study requirement would not include that day (i.e. the day the application was made). Accordingly, the confirmation of degree would by necessity have to be prior to 4 August 2017 to make a valid and compliant application.
31. On this basis, the Tribunal is satisfied that for the purposes of r.1.15F(2) of the Regulations, the applicant completed the course on 4 August 2017, which is one day after the applicant submitted her application and within six months of the completion of her course. However, 4 August, as the date of completion, does not meet the regulations and criteria necessary for the granting of a 485 Post Graduate visa, as the confirmation of completion would have to have been confirmed by midnight on 3 August 2017, which is clearly not the case.
On the basis of the above, the Tribunal found that cl.485.231(3) was not met and affirmed the decision not to grant the visa (at [32]-[34]).
Proceedings in this Court
In the applicant’s judicial review application dated 16 August 2019, the sole ground of review provides:
The Second Respondent made a jurisdictional error by misconstructing and misapplying cl 485.221 of the Migration Regulations 1994 in finding at [30] of its reasons that confirmation of the Applicant’s degree would be required prior to the day of lodgement of her visa application.
The applicant was represented before this Court by Mr Glenister of Counsel. The Minister was represented by Ms Ladhams.
The materials before the Court include the application for judicial review, a Court Book numbering 127 pages (marked as Exhibit 1), an outline of written submissions filed by the applicant on 14 July 2020 and an outline of written submissions filed by the Minister on 29 July 2020.
Applicant’s Submissions
In written submissions, the applicant submits:
a)it is conceded that the ordinary and natural meaning of the words “in the period of 6 months ending immediately before the day the application was made” renders the applicant unable to satisfy cl.485.231 and that this is further reinforced by s.36(1) of the Acts Interpretation Act 1901 (Cth) (the “Interpretation Act”);
b)there is a distinction between the literal and legal meaning of a provision, and as explained in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [78] (“Project Blue Sky”), ‘The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning’;
c)the object of the Act is to ‘regulate in the national interest the … presence in Australia of non-citizens.’ The purpose of this particular visa is to provide non-citizens who have spent a significant amount of time in the Australian community and have completed a significant amount of study at an Australian university a pathway to permanent residency through skilled migration. The importance of international students and skilled migrants to the Australian community cannot be understated;
d)time of application criteria, such as cl.485.231, also play an important role in ensuring that only those eligible for visas are applying for them and that non-citizens are not lodging applications based on speculation about the course of future events. They also reduce the administrative burden on decision-makers and help facilitate the decision-making process;
e)the purpose of cl.485.231 is that only non-citizens who have studied at eligible education institutions and have completed that study at a specified level will be eligible for the visa. The fact that there is a time restriction on when the visa can be applied for is reflective of its purpose to facilitate skilled migration by granting recent graduates further time to obtain the work experience necessary to qualify for a visa under the general skilled migration program. The interpretation urged by the applicant does not contradict either of these purposes;
f)in this matter it has been found by the Tribunal that at the time the applicant made her application, she met the substantive requirement set by cl.485.231 of having satisfied the Australian study requirement. Where she failed was that she had pulled the trigger on her visa application a day early. She was too diligent. This is a patently absurd outcome. It does not serve any purpose or intention that could be imputed to Parliament in creating the visa;
g)this interpretation does not facilitate the decision-making process. It does not serve the interest of the Australian community in encouraging non-citizens to study at Australian institutions and migrate through the general skilled migration program. For these reasons, the Court ought to find that there is contrary intention for the purpose of s.2(2) of the Interpretation Act and that s.36(1) of the Interpretation Act does not apply;
h)the Court ought to find that the literal interpretation of this provision is distinct to the legal interpretation, namely that the phrase ‘in the period of 6 months ending immediately before the day the application was made’ includes the day the application was made (“day 0” in essence). The Tribunal erred in failing to so find; and
i)there would be no incongruity with the Court interpreting cl.485.231 in this manner with the interpretations of the other time of application criteria such as cls.485.212, 485.213 and 485.215. Those criteria would still achieve their respective objects.
At hearing, Mr Glenister stated that the argument made is crystallised by two points:
a)the absurdity of the outcome; and
b)what flows from that absurdity.
Mr Glenister also referred to the Interpretation Act and the fact that the inclusion of a provision on how to calculate time indicates that there is, inherently, some ambiguity when it comes to calculating time. Mr Glenister further suggested that the ambiguity in the provision here gives the applicant “wriggle room” to suggest that her interpretation is to be preferred.
Minister’s Submissions
The Minister’s written submissions provide as follows:
a)it is apparent that if the words in cl.485.231(3) are given their ordinary plain English meaning, and if they are interpreted in accordance with s.36(1) of the Interpretation Act, the Tribunal’s interpretation is correct. The applicant has properly conceded as much in her submissions;
b)the Minister accepts that a purposive approach to statutory construction should be preferred to a literal approach. However, s.15AA of the Interpretation Act does not permit a court to disregard the words used in the legislation or to redraft legislation to give effect to its assumed purposes;
c)the interpretation that the applicant seeks would require the Court to disregard the clear words used by the drafters of the Regulations, which clearly provides that the 6 month period ends on the day immediately before an application is made;
d)it can readily be inferred that the drafters of cl.485.231(3) intended that the 6 month period end the day before an application is made. Had it been intended that the 6 month period include the day on which an application is made, Parliament would have used the wording consistently with the wording used in other provisions of the Regulations that allows this;
e)the phrase ‘immediately before the day on which’ should be interpreted consistently throughout the Regulations. If the interpretation of cl.485.231(3) that the applicant advances is accepted, other provisions using the same wording must be interpreted consistently.
f)accepting the applicant’s interpretation would also render the words ‘immediately before’ superfluous or insignificant, contrary to the well-established principle that all words in legislation have meaning and effect;
g)there is no evident intention that s.36 of the Interpretation Act should not apply to cl.485.231(3). There is nothing in the terms of cl.485.231(3) itself, or the Act or Regulations more generally, to suggest that s.36(1) was not intended to apply. Nor is there anything in the object, subject matter or history of the Act or the Regulations that would reasonably lead to an inference that s.36(1) of the Interpretation Act does not apply;
h)the applicant appears to rely on an alleged absurdity in the consequence of applying either s.36(1) of the Interpretation Act or the plain and ordinary meaning of the words used in cl.485.231(3) to infer a contrary intention for the purposes of s.2(2) of the Interpretation Act. However, no such absurdity exists. The ‘patently absurd outcome’ arising because the applicant was ‘too diligent’ in making her application, is no more absurd than if the applicant was two days early in making her visa application or even two weeks early;
i)clearly, cl.485.231(3) cannot be interpreted in a way where an application made two or more days early could meet that criteria. Nor should it be interpreted in a way that treats the words ‘immediately before’ a day as including that particular day. Clause 485.231(3) sets a particular time period during which the applicant is required to meet the Australian study requirement to be eligible for the visa, and effect should be given to the clear and unambiguous words used in that clause;
j)there is no ascertainable purpose of the legislation that requires the Court to prefer the interpretation advanced by the applicant;
k)the Act and Regulations set out various criteria that visa applicants must meet in order to be eligible for a visa. Parliament has clearly set out a number of criteria that the applicant needed to meet to be eligible for the grant of the visa, including cl.485.231(3);
l)that the applicant’s preferred interpretation would not be inconsistent with the purposes of the visa she applied for is not sufficient to displace the clear words used by the drafters of the Regulations; and
m)nothing in the extrinsic material assists the applicant’s case or supports an interpretation that does not give effect to the words ‘immediately before’ in cl.485.231(3).
At hearing, Ms Ladhams reiterated that there is no “absurdity”. It is a matter for the drafters to set out the criteria. The drafters here used a timeline for the criteria. They considered “the day before the application was lodged” to be an appropriate timeline. Further, the language used to give effect to that timeline is patently clear. Finally, Ms Ladhams argued that it is not open to the Court to interpret a provision beyond the clear terms of the provision simply because that interpretation is not inconsistent with the purpose of the Act.
Clause 485.231
The Court notes that the delegate determined that the applicant did not meet cl.485.221 of the Regulations. The delegate erred in determining the application on this basis as the applicant had not applied for the visa in the Graduate Work Stream (which is what cl.485.221 relates to). The applicant applied for the visa in the Post-Study Work Stream. As such cl.485.231 was the relevant criterion.
Clause 485.231 of the Regulations provides:
(1) The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.
(2)Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.
(3)The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.
There is no dispute that the applicant met cl.485.231(1) and (2) of the Regulations. The sole issue was whether the applicant met cl.485.231(3) of the Regulations.
The issue in this case thus turns on the interpretation of cl.485.231(3).
Consideration
For the purposes of this application, the date the applicant “completed” her studies was 4 August 2017. It is noted that the Court expresses no view on whether this is, in fact, the correct date. The date the applicant is deemed to have completed her studies is a matter for the Tribunal if the applicant is successful in having the application remitted. It is noted that the Tribunal itself acknowledged the date the applicant “completed” the studies would require further consideration (at [28]). Nonetheless, for present purposes it is agreed by the parties that the critical date is 4 August 2017.
Hence, the issue here is whether the “period of 6 months ending immediately before the day the application was made” should be taken to include the day of the application.
A literal, or strict, interpretation of cl.485.231(3) of the Act does not support the reading that “the period of 6 months ending immediately before the day the application was made” includes the day of the application.
It is noted that the phrase “immediately before the day on which” is used at various times throughout the Regulations. A strict interpretation has been taken in relation to the interpretation of those provisions using that phrase: Kaur v Minister for Immigration & Border Protection [2015] FCA 584. Further, it has been held that the use of the same phrase “immediately before the day” in other parts of the Regulations or related Instruments does not indicate any “arguable ambiguity”: Kumar v Minister for Immigration & Border Protection [2018] FCA 140.
Section 36(1) of the Interpretation Act also supports the interpretation that the period of 6 months ending immediately before the day the application was made does not include the day of the application.
The applicant submits that cl.485.231 of the Regulations is not subject to s.36(1) of the Act because there is a “contrary intention”. The applicant refers to the intention of the particular visa scheme and the “absurdity of the result” evident here.
The Court does not accept the applicant’s interpretation that the period of six months ending immediately before the day the application was made includes the day of the application. The Court cannot identify a “contrary intention” and does not accept that the purpose or context of the relevant visa scheme supports the reading the applicant asks the Court to make here.
There is nothing in the Explanatory Memorandum of the Migration Amendment Regulations 2007(No. 7) Bill (Cth) and Migration Legislation Amendment Regulation 2013(No. 1) Bill (Cth) that specifically explains the meaning of “in the period of 6 months ending immediately before the day the application was made”. Arguably, this is so because, as the applicant herself concedes, the literal meaning of the phrase is quite clear.
In circumstances where the language is clear, the Court cannot justify departing from the plain terms used by the drafters of the legislation which have been approved by Parliament. As Ms Ladhams submitted at the hearing, the drafters of the legislation chose to impose a time limit for this particular criterion and that time limit should not be read down or widened. It should be given its plain meaning.
Further, had Parliament intended for it to be open to an applicant to complete their studies on the day they applied for the visa, the Parliament would not have used the language “ending immediately before the day the application was made”. It would have said something akin to “ending the day on which the application was made”. Specificity in Parliamentary language should not be cast aside lightly.
The Minister also drew the Court’s attention to the use of a pattern of clear and distinct phrases throughout the Regulations, namely:
a)the use of immediately before the day on which, which is used in, for example, regs.1.15B, 1.15C and 1.15D and cls.485.213, 485.221 and 485.231 of sch.2 of the Regulations;
b)the use of the day on which, which is used in, for example, regs.2.12D, 2.63A and 2.64 of the Regulations; and
c)the use of after the day on which, which is used in, for example, regs.2.11, 2.75A, 2.78 of the Regulations.
As the Minister submits, had the intention been that the phrase “immediately before the day on which” included “the day on which”, there would be no need for the legislation to include both of these phrases.
In Project Blue Sky at [71] it was stated:
… [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.’
Every word of the provision should be given meaning and if the Court were to adopt the interpretation suggested by the applicant here, the words “immediately before” would prove superfluous, void and insignificant.
Further, it is not the case here that a strict construction has produced a “patently absurd outcome”. Clause 485.231 is clear. The applicant’s claimed “absurdity” does not arise from ambiguity or a lack of clarity in the Regulations. Rather, it arises from the applicant’s own actions. The applicant is suggesting that a strict construction is absurd because she failed to heed to what is an otherwise straightforward requirement. While perhaps harsh, the outcome arose entirely from the applicant’s failure to do what she was required to do when applying for the visa.
The Court accepts the applicant’s submissions with regard to the purpose of the visa and her argument that the interpretation that she advances does not contradict these purposes. However, a literal interpretation also does not contradict the purpose or intention of the visa. It does not, as the applicant submits, deter individuals from applying for the visa. The applicant’s circumstances here are unfortunate. However, this does not justify the Court ignoring clear legislative intention or rendering the use of specific phrases in the legislation redundant.
The Court rejects the applicant’s construction of cl.485.231(3) of the Regulations.
The applicant was required to have completed her course in the six months immediately before the day on which she applied for the visa. She did not do so. Instead, the applicant applied for the visa on the day on which she believed she completed her course. The Tribunal was correct to determine that, in those circumstances, she did not meet cl.485.231(3) of the Regulations.
Conclusion
The applicant has failed to satisfy the Court that the Tribunal has fallen into jurisdictional error.
The application is, accordingly, dismissed.
The preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 12 August 2020
6
5
4