MIA v Minister for Immigration
[2010] FMCA 630
•20 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MIA v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 630 |
| MIGRATION – Review of Migration Review Tribunal – Student visa application – whether completed a substantial part of the course for which the Student visa was held – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.359A Migration Regulations 1994 (Cth), cls.5A204, 570.223; regs.1.40, 1.41 |
| Commissioner for Superannuation v Scott (1987) 71 ALR 408 Minister for Immigration and Citizenship v Kamal [2009] FCAFC 98 Seneviratne v Minister for Immigration & Anor [2009] FMCA 907 |
| Applicant: | MD MAHASIN MIA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3049 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 24 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2010 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Bengali interpreter. |
| Counsel for the Respondents: | Ms Mitchelmore |
| Solicitor for the Respondents: | Nicola Johnson of Sparke Helmore |
ORDERS
The application filed on 15 December 2009 is dismissed.
The Applicant is to pay the First Respondents’ costs and disbursements of and incidental to the application fixed in the amount of $4,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3049 of 2009
| MD MAHASIN MIA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of the decision of the Migration Review Tribunal to refuse the Applicant a Student (Temporary) (Class TU) visa. Specifically, the present application seeks review of the decision of Amanda MacDonald, MRT Case Number 0803639.
At the First Court Date directions hearing, the Applicant was granted leave to file an Amended Application by 22 March 2010. The Applicant did not avail himself of this opportunity and thus relies on his original application which states the following grounds :
1. The Tribunal made an error not providing the information which the Tribunal used in making the decision.
2. The Tribunal failed to consider that the Applicant had completed a substantial part of his course requirement.
3. The Tribunal failed to consider the Applicant’s request to complete the IELTS in January 2010, in this case the Tribunal made an error not ensuring the Applicant procedural fairness.
A Court Book (“CB”) was prepared by the first Respondent’s solicitors and marked Exhibit “A”.
Background
The Applicant is a citizen of Bangladesh. He arrived in Australia on 13 October 2006 as the holder of a student visa. On 27 October 2006 he was granted a further student visa which ceased on 15 March 2008.
On 14 March 2008 the Applicant applied for a further student visa. The Applicant indicated in his visa application that he was preparing to undertake an IELTS test on 5 April 2008 and contained with his application, evidence of completion of a Certificate of General English at the Academy of English from 16 October 2006 to February 2007 (CB 29).
The Applicant relied on a Confirmation of Enrolment for the purposes of this application, which evidenced his enrolment in a Diploma of Hospitality Management at the Illawarra Business College from 3 September 2007 to 28 August 2009 (CB 28).
The Applicant submitted a letter from the College dated 11 March 2008 indicating that the Applicant has commenced the course on 3 September 2007 and had successfully completed three modules and was undertaking a further two modules (CB 27). In a further letter dated 19 May 2008, the College confirmed that the Applicant had, at that time, completed five modules and had commenced a further two modules of study (CB 43).
On 21 May 2008, the delegate of the Minister notified the Applicant that his application for a student visa had been refused on the basis that the delegate assessed the Applicant against the criteria for a subclass 572 visa, noting that his enrolment in the Diploma of Hospitality Management course was specified by the Gazette Notice as the type of course for that subclass (CB 45 - 46).
On 12 June 2008 the Applicant applied to the Migration Review Tribunal (“the Tribunal”) for review of the delegate’s decision. On 30 November 2009 the Tribunal affirmed the decision not to grant the Applicant a Student (Temporary) (Class TU) visa.
The Tribunal decision
The Applicant appeared before the Tribunal on 28 July 2009 to give evidence and present arguments. The Applicant was represented by a registered migration agent at the hearing before the Tribunal.
At the relevant time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (Cth) (“the Regulations”). For Applicants who apply as a student, the subclass that can be granted in any particular case depends on the type of course the student is enrolled in, or has an offer for as explained in r.1.40(2) and (3) of the Regulations, and its specification by the Minister by Gazette Notice made under r.140A, or in the case of Subclass 576, its approval by the AusAID Minister or the Defence Minister (see Part 576 of Schedule 2). The Tribunal identified the relevant subclass in this case as Subclass 572 Vocational Education and Training Sector, but at the time of the Tribunal decision, it was Subclass 570 Independent ELICOS Sector.
Part 570 of Schedule 2 to the Regulations indicate the criteria for the grant of a Subclass 570 visa. The issue in the present case is whether the Applicant meets the criterion in cl.570.223 which requires the Minster to be satisfied that, at the time of application, the Applicant is a genuine Applicant for entry and stay as a student having regard to factors set out at cl.570.223(2). Relevantly cl.570.223 states:
(1) The Minister is satisfied that the Applicant is a genuine Applicant for entry and stay as a student because the Applicant meets the requirements of subclause (2).
(2) An Applicant meets the requirements of this subclause if:
(a) the Applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 570 and the assessment level to which the Applicant is subject, in relation to:
(i) the Applicant's English language proficiency for the purposes of each ELICOS that the Applicant proposes to undertake; and
(ii) the financial capacity of the Applicant to undertake each of those ELICOS without contravening any condition of the visa relating to work; and
(iii) other requirements under Schedule 5A; and
(b) the Minister is satisfied that the Applicant is a genuine Applicant for entry and stay as a student, having regard to:
(i) the stated intention of the Applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the Applicant holds the visa, the Applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the Applicant's financial capacity.
Pursuant to 570.223(2)(a) the Applicant must provide evidence in accordance with the above requirements, in particular the Applicant’s level of English language proficiency. Regulation 1.41 provides that the applicable assessment level must be specified by Gazette Notice, in relation to each Subclass of Student visa. In the present case, the Gazette Notice in force at the time of application was IMMI07/014, 14 May 2007 (CB 117). It specified that the relevant assessment level for an Applicant who has applied for a Subclass 570 visa and holds an eligible Bangladesh passport is Assessment Level 4.
Clause 572.223(2)(a)(i)(A) of Schedule 2 to the Regulations required the applicant to provide evidence to the Minister in accordance with the requirements in Schedule 5A and the assessment level to which he was subject in relation to his “English language proficiency for the purposes of each course of study that the Applicant proposes to undertake”. As a citizen of Bangladesh, the Applicant was required to prove proficiency at an assessment Level 4 (CB 117).
Schedule 5A of the Regulations specifies the requirements for Assessment at Level 4 for Subclass 570. At the time of application the relevant provision in this case was cl.5A204 of Schedule 5A. This stated as follows:
Division 2 Requirements for assessment level 4
5A204 English language proficiency
The Applicant must give evidence that one of the following applies:
(a) the Applicant 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;
(b) the Applicant:
(i) is fully funded; and
(ii) has a level of English language proficiency that satisfies his or her proposed education provider;
(c) 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 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;
(d) 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.
The Tribunal considered whether the Applicant met cl.5A204(a) on the basis of having achieved an IELTS test that was taken less than 2 years before the date of application and achieved an overall Band Score of at least 5.0.
The phrase an “IELTS test that was taken less than 2 years before the date of application” has been the subject of the recent decision in MIAC v Kamal [2009] FCAFC 98, in which it was held that the words “an IELTS test that was taken less than 2 years before the date of application” referred to an IELTS test that was taken no earlier than two years before the date of the application and did not preclude an IELTS test that was taken after lodgement of the application.
The Tribunal acknowledged that this decision meant that the Applicant could meet the requirement on the basis of a relevant IELTS test result that was obtained from a test taken “at any time in the period from 2 years before the visa application until the visa application is finally determined” (CB 121 at 34).
The Tribunal found that the Applicant did not achieve an Overall Band Score of at least 5.0 in the IELTS test he undertook on 4 April 2008 or the test taken on 8 October 2009. The Applicant requested a further opportunity to sit a test scheduled for 23 January 2010. The Tribunal decided not to grant this request. The Tribunal took the view that in considering that the Applicant lodged his visa application on 14 March 2008 and had already been provided with a second opportunity to take the IELTS test in October 2009, the grant of a further extension of time to complete a third IELTS test was not warranted. As a result the Tribunal found that the Applicant had not satisfied cl.5A204(a) in providing evidence that he achieved an overall IELTS test score of 5.0, taken less than 2 years before the date of application.
Further, the Tribunal found that the Applicant had not provided sufficient evidence that he was fully funded and hence did not satisfy cl.5A204(b) of the Regulations. Additionally, the Tribunal held that the Applicant had not successfully completed the requirements of a Senior Secondary Certificate of Education or a course in foundation studies in Australian, in accordance with cl.5A204(c)(i) or cl.5A204(c)(v).
At the Tribunal hearing the Applicant’s representative indicated that he submitted both to the Department and to the Tribunal, that the Applicant met cl.5A204(c)(iii) on the basis of having completed a substantial part of a course leading to an Australian qualification at Certificate IV level or higher. The Tribunal noted in its decision that this provision required the Applicant to give evidence that he had, less than 2 years before the date of application, as the holder of a student visa, 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 at the Certificate IV level or higher. The Tribunal found, at the time of application, the Applicant had only completed 3 modules and commenced a further 2 modules, as the holder of a student visa. It was therefore not satisfied that the Applicant had completed a substantial part of a course leading to a qualification at the Certificate IV level or higher.
The Tribunal found that the Applicant did not meet the essential requirements of cl.570.223 as no evidence had been provided that would satisfy the Tribunal that the Applicant would meet the criteria for any of the other Student (Temporary) (Class TU) visa subclasses.
Consideration
At the First Court Date directions hearing, the Applicant was requested to file and serve in the Registry, a short written outline of submissions and list of authorities 14 days prior to the hearing. Although late, the Applicant complied with this request and handed up written submissions at the commencement of the hearing. Those submissions addressed the following issues:
11. In regard to ground one of the application, the Applicant did not receive particular reasons for the Tribunal in affirming the decision of the DIAC. The Applicant received the decision from the Tribunal on 1 December 2009. The Applicant completed his diploma on 6 November 2009. Besides, “the Applicant’s representative submitted that the Applicant had successfully completed a substantial part of an award of a certificate IV or higher and may have satisfied the English proficiency requirement for the grant of a students visa. (CB 119) The Tribunal did not say anything regarding this issue. The Tribunal did not forward adequate information to the Applicant in affirming the decision.
12. In regard to the second issue, the Applicant contended that the Tribunal admitted that the Tribunal received the submission from the Applicant’s representative that the Applicant has completed 86.95% of the course of Diploma of Hospitality and Management. (CB 119) and the Applicant also submitted Certificate IV with the Tribunal. It is clear that the Tribunal made an error in this regard.
13. In regard to the third issue, the Tribunal failed to act reasonably, particularly the Tribunal waited for a long and it was requested by the Applicant to extend a further time to obtain a IELT result, which the Tribunal denied unreasonably.
In oral submissions, the Applicant brought the Court’s attention to the documentation that had been tendered by his agent, Aussie – New Zealand Immigration Agency Co. on 8 June 2009. This included a letter from the Illawarra Business College (CB 65) together with a transcript of the academic record from that institution (CB 66). This correspondence indicates that the Applicant had completed 31 units of competency and had received his Certificate III in hospitality (Commercial Cookery) components on 28 October 2008. He then commenced his Diploma in Hospitality Management from 29 October 2008 which has also been completed. These courses had been undertaken in English. The Applicant as at 2 March 2009 had an attendance rate of 91.50%. A letter from his agent indicated that the Applicant would complete his Diploma of Hospitality and Management by August 2009 (CB 67).
The Applicant also drew to the Court’s attention the correspondence from his agent concerning the IELTS report he took on 8 October 2009. In that correspondence it is acknowledged that the results do not meet the visa grant requirement so that the Applicant had booked a further test which was to occur on 23 January 2010. This is supported by a receipt issued by the University of Technology Sydney and a copy of his previous test (CB 102-104).
Ground one
Section 359A(1)(a) of the Migration Act 1958 (Cth) (“the Act”) requires the Tribunal to give the Applicant clear particulars of any information that it considers will form the reason, or part of the reason, for affirming the decision under review. However, there is an express exclusion in respect to information that an Applicant provides to the Tribunal for the purposes of the application for review: s.359A(4)(b). Similarly, information that the Applicant provided to the Tribunal during the review process, that led to the decision under review, is also expressly excluded pursuant to s.359A(4)(ba).
The Tribunal’s decision in this case was the product of its assessment of information provided by the Applicant against the relevant criteria in cl.570 of Schedule 2 of the Regulations, and in particular, for the purposes of cl.570.223(2)(a)(i)(A), the criteria of cl.5A204 of Schedule 5A. The Tribunal did not take into account any information which triggered the obligation under s.359A(1) which requires:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
A review of the Tribunal’s decision under the sub-heading “Findings and Reasons” clearly indicates that the Tribunal was reviewing the material by the Applicant, copies of which are reproduced in the Court Book, against the requirements of the Act and Regulations. On a fair reading of the Tribunal’s decision, no material is identified that is sourced from any other than the Applicant himself. Further, the Applicant has not particularised any information that the tribunal should have, but failed to, provide to him. In the absence of particulars or submissions identifying any material that would trigger s.359A(1), I am satisfied that Tribunal has complied with the provisions of the Act and that this ground cannot be sustained and should be dismissed.
Ground two
A review of the Tribunal’s decision record in respect to whether the Applicant had satisfied cl.5A204(c)(iii) it considered the study that the Applicant had undertaken in relation to Certificate III in Hospitality (Commercial Cookery) and the Diploma of Hospitality Management. As at 15 March 2008, being the date upon which his student visa expired, the Applicant had only successfully completed three modules of the course for which he held the student visa. In circumstances where the Applicant needed to complete 31 modules in order to obtain Certificate III in Hospitality (Commercial Cookery) and a further 15 modules in order to obtain the Diploma of Hospitality Management, it was open to the Tribunal to reach the conclusion that the Applicant had not successfully completed a substantial part of the course leading to a qualification at Certificate IV level or higher “as the holder of a student visa”.
This is clearly set out in the Tribunal decision at [40] and [41] where it states:
40. The applicant submitted evidence that he completed 3 modules on 11 March 2008 at the Illawarra Business College towards a Diploma in Hospitality Management and as at the date of application had completed a further 2 modules. He was deemed competent in the units of competencies to receive his Certificate III in Hospitality (Commercial Cookery) on 29 October 2008 and was to complete his Diploma of Hospitality Management course on 28 August 2009. The Tribunal is satisfied completion of 31 modules was required for the award of the Certificate III in Hospitality (Commercial Cookery) the completion of a further 15 modules was required for the award of the Diploma of Hospitality Management.
41. The Tribunal is not satisfied that completing 3 modules and commencing a further 2 modules at the date of application equates to successfully completing a ‘substantial’ part of either the Certificate III in Hospitality (Commercial Cookery) course or the Diploma of Hospitality Management course.
42. The Tribunal’s view is that cl.5A204 requires that the application had, less than 2 years before the date of application, successfully completed a substantial part of a course leading to a qualification at the Certificate IV level or higher. Even if this interpretation is not correct, the Tribunal notes that the applicant ceased to hold a substantive visa from 15 March 2008 and therefore only completed 3 modules towards a Certificate III in Hospitality (Commercial Cookery) or a Diploma of Hospitality Management and commenced a further 2 modules as the holder of a substantive visa. Therefore the Tribunal is not satisfied that, as the holder of a student visa, the applicant successfully completed a substantial part of a course leading to a qualification at the Certificate IV level or higher.
The meaning of “substantial” is addressed in the decision of Commissioner for Superannuation v Scott (1987) 71 ALR 408 per Fisher and Spender JJ at 411-413 (with whom Pincus J agreed at 416) where their Honours considered the authorities and identified the following issue:
i)“Substantial” or “substantially” will draw meaning from the context in which the words appear (at 411);
ii)In applying the meaning of the word “substantial”, “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” (at 412);
iii)A court fixing percentages as a legal measure of the meaning of “substantial” goes beyond the power of the judiciary and plays the part of the legislator (at 412);
iv)The word “substantial” is not only susceptible to 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 … or nominal. It can also mean “large”, “weighty” or “big”. It can be used in be used in a relative sense or it can indicate a significance, quantity or size.
In Seneviratne v Minister for Immigration & Anor [2009] FMCA 907 per Scarlett FM His Honour held that:
i)A decision as to whether an Applicant has successfully completed a substantial part of the degree was a matter of fact (at [48]);
ii)The Tribunal had not misunderstood the academic transcript or failed to consider some part of the transcript that would establish that the Applicant had completed more of the points necessary for the relevant degree than had been assessed by the Tribunal (at [45]); and
iii)The Tribunal did not fall into jurisdictional error when it decided that the Applicant’s evidence of successful completion of 21 out of 72 points towards a Bachelor of Legal Studies was not evidence of successful completion of a substantial part of a course (at [49]).
The completion of three modules out of 31 (9.6%) in the determination of what might or might not constitute a substantial part of a course is a matter of fact within the jurisdiction of the Tribunal: Seneviratne (supra) at [48]. It is a matter for the exercise of the Tribunal’s discretion and is not a matter in relation to which this Court may interfere unless the Tribunal’s decision is plainly or manifestly wrong. What constitutes a substantial part of the course being undertaken by the Applicant is a matter for the Tribunal and the Tribunal was plainly not satisfied on the evidence it had before it in respect to that matter.
In the circumstances I am satisfied that there is no error in the Tribunal’s finding and this ground should be dismissed.
Ground three
Paragraph [35] of the Tribunal’s decision record which states:
The Tribunal finds that the applicant did not achieve an Overall Band Score of at least 5.0 in the IELTS test he undertook on 4 April 2008 or 8 October 2009. The applicant requested an opportunity to sit a further test on 23 January 2010. The Tribunal decided not to grant the request. The Tribunal was of the view that as the visa application was made on 14 March 2008 and the Tribunal had given the applicant time to sit a further test in October 2009, a further extension of time was not warranted. The Tribunal finds that the applicant has not given evidence that he achieved in an IELTS test that was taken less than 2 years before the visa application until the visa application is finally determined.
This answers the Applicant’s allegation that the Tribunal failed to consider his request to undertake a further IELTS test in January 2010. The Tribunal there noted that it already delayed making its decision on the review for a number of months so that he could sit an IELTS in October 2009. Having done so, the Tribunal took the view that the fact that the Applicant had not achieved an Overall Band Score that would satisfy the requirements of cl.5A204(a) did not warrant it delaying its decision for a further three months to enable him to sit an IELTS test for a third time. It was open to the Tribunal to take that approach to the Applicant’s request and no error has been demonstrated. I am satisfied that this ground of review cannot be sustained and should be dismissed.
Conclusion
The Applicant in these proceedings is a self represented litigant however he has received the assistance of a registered migration agent in the preparation and submissions of the material to the Tribunal. The Tribunal had before it all of the relevant material necessary to make its decision.
The Applicant’s pleadings are not particularised and do no more than express a disagreement with the Tribunal’s decision. The Applicant’s oral and written submissions do not advance the grounds pleaded and do little more than draw attention to the documentation that he is relying upon and that was placed before the Tribunal. No error is identified. On a fair reading of the Court Book and in particular the Tribunal’s decision, it is not apparent on the face of those records that any jurisdictional error has been made. In the circumstances, the application should be dismissed with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 20 August 2010
3
2