Opoku-Ware v MIBP
[2015] FCCA 1638
•19 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OPOKU-WARE v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1638 |
| Catchwords: MIGRATION – Application seeking review of decision of Migration Review Tribunal to refuse to grant visa applicant a Child (Migrant) (Class AH) visa – whether Tribunal’s construction of clauses 101.213(1)(c) and/or 101.221(2)(b) unfair or misconstrued having regard to purpose of the regulation – use of perfect continuous tense in regulation – no reviewable error – application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth) Migration Act 1958 (Cth), ss.65, 477(1), 477(2) Migration Regulations 1994 (Cth), reg.1.05A, cl.101.213(1)(c) of Sch.2, cl.101.221(2)(b) of Sch.2 |
| Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 ALR 523 IW v City of Perth & Ors (1997) 191 CLR 1 Luke v Inland Revenue Commissioners [1963] AC 557 Macalister v R (1990) 92 ALR 39 Mills v Meeking & Anor (1990) 169 ALR 16 Minister for Immigration and Citizenship v SZJGV & Anor (2009) 238 CLR 642 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 Sok v Minister for Immigration [2005] FMCA 190 Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] Ch 174 Taylor v The Owners-Strata Plan No 11564 & Ors (2014) 306 ALR 547 |
| Applicant: | SYLVIA OPOKU-WARE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 691 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 17 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the First Respondent: | DLA Piper |
| The Second Respondent: | The Second Respondent filed a submitting notice |
ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the applicant be granted an extension of time in which to file her application up to and including 19 March 2014.
The application, as amended, be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 691 of 2014
| SYLVIA OPOKU-WARE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application seeking review of a decision of the second respondent, the Migration Review Tribunal (the “Tribunal”), dated 7 November 2013, MRT case number 1218726, affirming a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the visa applicant, Mr Richard Dwomoh, a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (Cth). It should be noted Mrs Sylvia Opoku-Ware, the applicant (review applicant) in the proceeding before the Court, is the mother of the visa applicant.
The Tribunal’s decision is dated 7 November 2013 and the 35 day period in which an application for review of the Tribunal’s decision can be lodged in this Court expired on 12 December 2013, as prescribed by s.477(1) of the Migration Act. Accordingly, the applicant requires an extension of time pursuant to s.477(2). I will return to and address this issue below.
The solicitors for the Minister filed a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. That volume of material has been identified as the Court Book (“CB”) and has been marked Exhibit “A”. The applicant read (without objection) the Affidavit of Sylvia Opoku-Ware sworn on 18 March 2014 and filed on 19 March 2014.
Background
The visa applicant is a citizen of Ghana, where he currently resides (CB 2). He was born on 23 September 1987 (CB 2).
On 6 June 2007 the visa applicant completed his secondary education at the Okomfo Anokye Secondary School (CB 9). On 16 March 2009, the visa applicant was admitted to the Ghana Korea Germany Church Mission computer training school to pursue a “Diploma in Advance Business Certificate examination – WAEC (Information Technology)” (CB 54).
During 2010, the review applicant migrated to Australia (CB 72). She did not include the visa applicant as a secondary applicant in her visa application because her husband had limited financial resources at that time, and could only afford to bring her and her younger son to Australia. It was always the intention she would sponsor the visa applicant after coming to Australia and when she gained employment (CB 142 at [8]).
Since the review applicant’s departure for Australia, she continued to support the visa applicant financially. He resides with the review applicant’s sister, who receives money from the review applicant for the visa applicant’s living expenses (CB 10).
On 20 March 2012 the visa applicant lodged an application for a Class AH (Child – migrant) (Subclass 101 – Child) visa with the Australian High Commission in Ghana (CB 1-45). His application was sponsored by the review applicant.
On 3 September 2012, an officer of the Department of Immigration and Citizenship (as it was then known) (the “Department”) wrote to the visa applicant (CB 61-64). In that letter, the officer, inter alia:
a)Noted a discrepancy in the date on the visa applicant’s birth certificate and passport as compared to the date on the records of the Ghana Korea Germany Church Mission;
b)Drew to his attention that he might not be regarded as a full time student because he only attended extra classes and not regular classes;
c)Identified the requirements of reg.101.213 of the Migration Regulations 1994 (Cth) (the “Regulations”); and
d)Invited his response.
By letter sent as an email attachment on 19 September 2012, the visa applicant provided a response in which, inter alia, he stated:
a)His uncle had erroneously completed the forms for enrolling in the Ghana Korea Church Missions and that his date of birth were as per his birth certificate and passport; and
b)His educational institution was for students who had completed schooling to assist them to acquire IT knowledge before continuing with their studies. In relation to the course being a full time course, lectures were held regularly and taken seriously.
On 27 October 2012, a delegate of the Minister subsequently refused the application (CB69-78). Relevantly, the delegate (CB74-5):
a)Referred to clause 101.213(1)(c), which required the Applicant at the time of application to meet the following criteria:
subject to subclause (2), the Applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australia school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification;
b)Stated that:
This provision appeared to contemplate a single full time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification a that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]. In determining what is a ‘reasonable time’ within the meaning of this subclause consideration of the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why would be relevant: Sok v MIMIA [2005] FMCA 190 at [28];
c)Concluded that the period of time between the visa applicant finishing secondary studies (June 2007) and the commencement of the secondary studies (March 2009 or several months before this) was not a reasonable period. This is because, although the Ghana Korea Germany Church Mission did not offer the diploma in question at the time he had finished his secondary qualifications, it should not have taken two years to build up the credit to be accepted into such a course with another institution.
On 27 November 2012, the (review) applicant applied to the Tribunal for review of the delegate’s decision (CB 79-86) (although apparently she completed an old form and had to complete a new form, which she lodged two days later: CB 98, 99-109).
On 18 January 2013, the applicant applied to the Tribunal for priority on the basis that her husband had had major hip surgery and she was the only one financially supporting her family (CB 112-3). This was refused (CB 114).
On 19 September 2013, the applicant was invited to appear before the Tribunal (CB 115-6), which invitation she accepted (CB 117-118).
On 7 November 2013, the Tribunal decided to affirm the decision of the delegate to refuse the visa applicant a Child (Migrant) (Class AH) visa (CB 140-146).
Tribunal’s Decision
Relevantly, the Tribunal:
a)Referred to time of application criterion clause 101.213(2) (see above) and criterion 101.221(2)(b) (which required the visa applicant to continue to meet inter alia clause 101.213(2)) (CB143, [20]);
b)Stated that (CB143 at [21]):
This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]. In determining what is a ‘reasonable time’ for this requirement, it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why would be relevant: Sok v MIMIA [2005] FMCA 190 at [28];
c)Noted in respect of the delay in commencing the course at the Ghana Korea Germany Church Mission that the applicant had explained that the visa applicant’s secondary school marks were insufficient to gain admission into university and she struggled to find an institution for him to continue education. Eventually she learned of the Ghana Korea Germany Church Mission from her husband’s brother and arranged for him to enrol the visa applicant. The visa applicant had since studied the course to completion in September 2012 (CB144 at [22]);
d)Further noted evidence to the effect that the visa applicant had not enrolled in any subsequent course because she wanted Richard to travel to Australia and continue his studies in Australia. The applicant was aware that his qualification would not be recognised in Australia and that he would have to study again – for this reason she had told him to wait until the visa was granted before continuing his studies here (CB 144 at [22]); and
e)Accepted that the gap between the completion of the secondary school and commencement of the diploma course was reasonable and the course was a full time course. Contrary to the delegate’s finding, the visa applicant met clause 101.213(1)(c) at the time of application (CB 144 at [23]);
f)However, the visa applicant had completed the diploma course and has not continued his studies. On this basis he failed to continue to meet clause 101.213(1)(c) at the time of decision (as required by clause 101.221(2)(b)) (CB 144 at [24]).
Current Proceedings
The further amended application pleads the following ground of review:
1. The Tribunal engaged in jurisdictional error by failing to ask itself the right question or by failing to correctly construe and apply the applicable law.
Particulars
a. The Tribunal, when considering whether cl 101.213(1)(c) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) was met at the time of decision, proceeded on the basis that the visa applicant necessarily did not meet the criteria because he was not, at the time of decision, undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
a1. In so approaching the matter, the Tribunal adopted an erroneous construction of clause 101.213 of the Regulations in that it construed the provision as setting out a criterion that could only be satisfied at the time of decision.
b. Further and in the alternative, in so approaching the matter, the Tribunal failed to ask itself whether there were circumstances such that, at the time of decision, a reasonable time after completing the equivalent of year 12 in the Australian school system had yet to expire, and / or the Tribunal failed to consider whether the reasons advanced by the applicant for the visa applicant having not commenced a further course was such a reason.
b1. Further and in the alternative, the Tribunal adopted an erroneous construction of cl 101.213(1)(c) to the effect that it contemplated the reasonable “gap” in study occurring prior to a single full-time course of study at a particular institution (CB143[21]), whereas on proper construction it did not exclude the subsequent studies comprising multiple courses or institutions or the reasonable “gap”’ occurring after the subsequent studies had commenced.
c. In the premises, the Tribunal failed to ask itself the right question or failed to correctly construe and apply cl 101.213(1)(c) of Schedule 2 of the Regulations as a time of decision criteria.
Extension of time
It is accepted by the applicant the application before this Court was filed out of time by approximately three months. Section 477 of the Migration Act relevantly states:
Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
“date of the migration decision” means:
…
(b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); …
It is not in dispute that an extension of time is required in order for the substantive application to be heard. Such an order is sought in the application before the Court.
The applicant has filed and read her own affidavit in support of the granting of an extension of time, the details of which she was cross-examined on at the hearing. Both parties have made both oral and written submissions in respect of this issue.
Having regard to the submissions made by both parties, I am of the view this issue does not require extensive consideration. The applicant, up until her application for judicial review, was a self-represented litigant with little or no experience in legal processes. Her evidence demonstrates she was unable to afford legal representation until shortly before the application in this Court was filed. I am satisfied that there is little or no prejudice to the Minister in the applicant being granted an extension of time, noting that both parties have prepared for the hearing as if it were to be heard as a final hearing. Accordingly, I will grant the applicant an extension of time under s.477(2) of the Migration Act.
Applicant’s Submissions
Clause 101.213(1)(c) required the applicant to satisfy the following requirement at the time of application:
(c) ... the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
Clause 101.221(2)(b), which appears under the heading ‘Criteria to be satisfied at time of decision’ (see Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417), provided that:
(2) In the case of an applicant who had turned 18 at the time of application: ...
(b) the applicant continues to satisfy the criterion in clause 101.213.
Principles relating to statutory interpretation
It should not be controversial that when interpreting legislation it is important to examine the text, context and object/purpose of the provision. Further, an interpretation that promotes the purpose of the legislative provision is to be preferred to a literal or grammatically correct interpretation particular where the latter does not promote the purpose of the legislation or gives rise to absurd or irrational results.
First, this follows from the express requirements of s.15AA of the Acts Interpretation Act 1901 (Cth), which provides that:
“In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”
Second, this approach has been identified and explained on numerous occasions by the courts. Without intending to comprehensively catalogue the decisions on the topic (which are numerous) a number of High Court decisions that explain the correct approach are identified below.
In Mills v Meeking & Anor (1990) 169 ALR 16 at 30-31, Dawson J stated that that regard may be had to the purpose of a provision “not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open”.
In Macalister v R (1990) 92 ALR 39 at 43, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ endorsed the following statement of principle by Lord Rein in Luke v Inland Revenue Commissioners [1963] AC 557:
The general principle is well settled. It is only where the words are absolutely incapable of a construction which will accord with the apparent intention of the provision and will avoid a wholly unreasonable result, that the words of the enactment must prevail.
In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, Brennan CJ, Dawson, Toohey and Gummow JJ stated (at 408) that:
... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.
(footnotes omitted).
In Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113, McHugh J approved the following statement of principle by MacKinnon LJ in Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] Ch 174 at 201:
Where the purpose of an enactment is clear, it is often legitimate, because it is necessary, to put a strained interpretation upon some words which have been inadvertently used, and of which the plain meaning would defeat the obvious intention of the Legislature.
McHugh J went on to state (at 113), “If the target of a legislative provision is clear, the court’s duty is to ensure that it is hit rather than to record that it has been missed.”
Similarly, in Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at 384, McHugh, Gummow, Kirby and Hayne JJ stated at [78]:
The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. 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. In Statutory Interpretation, Mr Francis Bennion points out:
The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that parliament intended to deal with.
(footnotes omitted)
In Minister for Immigration and Citizenship v SZJGV & Anor (2009) 238 CLR 642, French CJ and Bell J stated at [9]:
Such a result would be irrational. A construction of s 91R(3) to avoid that result may properly encompass a departure from the literal or natural and ordinary meaning of the text. If the language be so intractable that it requires a word or words to be given a meaning necessary to serve the evident purpose of the provision, then such a course may be permissible as a “realistic solution” to the difficulty. In the 12th edition of Maxwell’s On the Interpretation of Statutes the approaches which can be taken in dealing with statutory language whose ordinary meaning is plainly at odds with the statutory purpose were explained:
Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. [Footnote omitted.]
This approach is reflected in decisions of the courts of the United Kingdom. In Inco Europe Ltd v First Choice Distribution, Lord Nicholls of Birkenhead restated the need for the court to correct obvious drafting errors. He referred to the third edition of Cross’ Statutory Interpretation:
In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.
In Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 ALR 523, French CJ, Crennan, Kiefel, Gageler and Keane JJ stated (at [47]):
As French CJ, Hayne, Crennan, Bell and Gageler JJ said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98 at [39]]: “This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text.“ Context and purpose are also important. In Certain Lloyd’s Underwriters Subscribing to Contract No IH00 AAQS v Cross (2012) 87 ALJR 131 at [24]] French CJ and Hayne J said:
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at [69]] “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute“ … That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole“ Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320; 55 ALJR 434; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; 72 ALJR 841], and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed“ [Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 per Dixon CJ; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; 72 ALJR 841]. [Emphasis of French CJ and Hayne J].
Context and purpose of clauses 101.213(1)(c), 101.221(2)(b) and the ‘reasonable time’ requirement
It is obvious from the nature of the visa and the criteria that the purpose of the Subclass 101 – Child visa is to provide a migration option for offshore children who are genuinely still dependent on their parents. This is evident from the primary criteria themselves, which require the child to demonstrate that he or she is a dependent child (cl.101.211) and to be sponsored by a parent or spouse of a parent (cl.101.212). It is also noted that it was introduced via the Migration Amendment Regulations 1999 (No.13) 1999 (Cth), which amendments were intended, according to the Explanatory Statement, to “create a revised and simplified structure of the Family stream of visa classes”.
The purpose of cl.101.213, in this context, is to recognise that certain categories of children over the age of 18 may be regarded as dependent children for the purposes of a Subclass 101 – Child visa application. In particular, it is intended that a child who is not engaged or married, is not working full time, and who pursues further education will be recognised as a dependent child. It is also clear that the provision intends for the child to be recognised as a dependent even if there is a delay in the commencement of his post-secondary education provided that the delay is reasonable.
This was recognised by the Court in Sok v Minister for Immigration [2005] FMCA 190, where the Court identified the context and purpose of the provision as follows:
23. In order to determine the weight to be placed on a particular reason for the time period being considered, the meaning of the term ‘reasonable’ must be seen in the context of the legislative scheme. This visa condition, read in the context of the legislation, clearly contemplates respecting reasonable ongoing support that parents may provide to enable young adult offspring to complete their education or training. A similar community value is reflected in s.66L of the Family Law Act 1975.
24. The condition contemplates the extent to which it is reasonable for a parent to support a child until they obtain a ‘professional trade or vocational qualification’ and, ipso facto, are able to support themselves.
25. In the context of this case consideration must be given to courses taken after school in order to prepare for the vocational course ultimately pursued. Whether the time is reasonable will ultimately depend upon whether a reasonable person, when considering all of the circumstances would consider the time reasonable. If the period of time were as a result of capriciousness, neglect or perversity it would not be reasonable: see Thornton v The Repatriation Commission [1981] FCA 76; (1981) 52 FLR 285 at 292 and Bidjara Aboriginal Housing & Land Co Ltd v Indigenous Land Corporation [2001] FCA 138.
(underlining added)
Riethmuller FM in Sok (supra) also referred to the Minister’s published guidelines for the provision follows at [20]-[22]:
20. This analysis is entirely consistent with the guidelines published by the Minister and tendered by the applicant which relevantly provides:
Policy background
A child who turns 18 is considered, prima facie, to be independent. If a child progresses to further studies after secondary schooling, it is generally accepted that the child is still dependent on the parent and dependence has not been terminated.
This concept is also contained in various State and Commonwealth law. If the child has been a full-time student continuously since the age of 18 (even if post-secondary studies were commenced before that time) they will meet this requirement.
If not studying at 18
To cater for the situation where the child became a full-time student sometime after turning l8 - for example, because they started secondary school later than normal - a child will also satisfy this criterion if they commenced post-secondary studies within 6 months of (or a reasonable time after) completing secondary school.
Six months is considered a reasonable time for the child to have made the decision to undertake further study. For periods longer than six months officers should consider carefully why the decision to study was deferred and whether the applicant remained dependent on their parent during that time.
Military service
A break in studies due to compulsory military service may be considered reasonable, provided the applicant immediately resumed the studies that had been suspended.
21. Examples of circumstances that may justify a finding that periods of time beyond six months would be reasonable within the meaning of the clause include: a young person undertaking a one year exchange student program in another country, living and working in another country; (particularly if their ultimate studies involved fluency in foreign language spoken in that country); civil unrest interrupting studies; illness; and military service.
22. All of these examples show the need to approach the task in the manner I have described in paragraph 19 above. To look only to the period of time and not the surrounding circumstances would create absurd results.
Ultimately, Riethmuller FM went on to identify the consideration that the Tribunal was obliged to have regard to when considering whether the ‘reasonable time’ provision was met in clause 101.213(1)(c) (at [17], [19]), and concluded that the Tribunal erred by focusing exclusively on the length of time in question at [19], [29]:
19. In determining what period of time would be reasonable one must necessarily consider the following factors:
a) the actual period of time involved;
b) what activities if any were undertaken during that period of time;
c) the purpose for which those activities were undertaken; and
d) if no activities connected with the ultimate course of study were undertaken the reason for not undertaking activities related to the course of study.”
...
29. In this case I am satisfied that the MRT erred in that it failed to ask itself the correct question in considering this application. The matter should be remitted to the MRT to consider according to law. This will require the MRT to:
a) identify the relevant considerations;
b) make the necessary findings of fact relevant to those considerations;
c) determine the weight of the factors; and
d) ultimately make its finding as to whether the time is ‘reasonable’ or not.”
The approach to headings in the Migration Act schedule
As noted above, cl.101.221 is situated under a heading ‘Criteria to be satisfied at time of decision’. However, it is important to bear in mind the approach adopted by the High Court in Berenguel (supra) in which the High Court held that a decision falling under the heading ‘criterion to be satisfied at the time of application’ was, when properly construed, a criterion that could be satisfied up until the time of decision. Specifically, after setting out the statutory framework in respect of the provisions relevant to that case, French CJ, Gummow and Crennan JJ stated in Berenguel:
21. The explanatory statement accompanying the Migration Amendment Regulations 2007 (No 7) said with respect to reg 1.15B(5):
The effect of this amendment is that applicants for a new General Skilled Migration visa may establish that they have vocational English, if required to do so to satisfy a criterion for grant of the relevant visa, on the basis of a test taken within the previous two years (rather than the previous 12 months for applicants required to have vocational English under other current regulations).
The passage supports the inference that the purpose of requiring an applicant to undergo a language test is to establish that the applicant currently has an appropriate standard of English competency.
...
24. The evident purpose of the alternative criteria in cl 885.213 is to ensure that, when the minister or delegate decides upon the application for a visa, the applicant will have demonstrated recent competency in the English language. It does not follow that the criterion can only be satisfied by evidence provided to the minister at the time of submitting the application. In this connection it is useful to note the contrast between the requirements of cll 85.213, 5.214 and 885.215.
25. The requirement in reg 1.15B that the requisite test has been conducted “not more than 2 years before the day on which the application was lodged” is susceptible of the construction that the test was conducted no earlier than 2 years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged. That requirement can only be imposed by some direct operation of the undefined heading “Criteria to be satisfied at time of application”.
26. Although cl 885.213 is part of the group of clauses headed “Criteria to be satisfied at time of application”, the heading does not connect grammatically to its terms. Applying s 13 of the Acts Interpretation Act, it may be regarded as “part of the regulations”. It may therefore inform their construction. But the text of Pt 885 does not support any general conclusion that the criteria in Pt 885 speak exclusively to satisfaction at the time of application. For example, cl 885.212 reads:
The Minister is satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority. [Emphasis added.]
Moreover, in this case, the construction for which the minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the minister to have regard to such information. The Act specifically provides that the minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.
Application
Drawing the above principles together, how are clauses 101.213(1)(c) and 101.221(2)(b) to be interpreted and how does it reveal error in the approach of the Tribunal?
The first issue that arises from the Tribunal’s decision is that it is clear that the Tribunal assumed that cl.101.221(2)(b) had to be satisfied at the time of decision. Support for this construction is derived from its placement after the time of decision criteria heading, however, as Berenguel clearly demonstrates, this is no more than part of the context of the provision and will give way to an interpretation that promotes the evident purpose of the legislation (particularly if it would otherwise lead to unfairness and absurdity).
Clause 101.221(2)(b) requires the visa applicant to continue to satisfy cl.101.213(1)(c) up to the relevant time, i.e. that:
(c) ... the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
The use of the singular “a full-time course of study...” suggests that, to meet cl.101.221(2)(b), the applicant must continue to undertake the full time course of study he was involved in for the purposes of cl.101.213(1)(c). This seems to be the construction adopted in Sok at [16].If this is the correct construction, then the unfairness and absurdity of cl.101.221(2)(b) being a time of decision criterion is plain – if the delegate or Tribunal take too long to decide the application, which is a matter entirely out of the visa applicant’s hands, then the visa applicant becomes incapable of satisfying cl.101.221(2)(b). This case illustrates the point. If the delegate had decided the matter before September 2012, the visa applicant would have met cl.101.221(2)(b). However, because the delegate decided the matter after this date, the visa applicant had completed the course relevant for the purposes of cl.101.213(1)(c) and therefore became incapable of meeting cl.101.221(2)(b) if it is a time of decision criterion.
This is plainly absurd and the preferable construction that avoids his absurdity and promotes the purpose of the provision, is that cl.101.221(2)(b) can be satisfied if the visa applicant undertakes the relevant course through to completion. The factors in favour of this interpretation are that:
a)It is consistent with logic (a person cannot continue to undertake a course after its completion);
b)It is unlikely that the legislature intended to set an impossible task for a visa applicant by requiring him to continue with a completed course, or intended for the fate of his visa application to be determined by how quickly the decision maker attended to his task;
c)It would avoid the unfairness or absurdity identified above;
d)It is consistent with the evident intention of the Subclass 101 visa to provide a migration option for children who are genuinely still dependent on their parents as they continue their post-secondary education; and
e)It is consistent with the grammar used in the provisions, given the usage of the present perfect continuous tense in cl.101.213(1)(c) (i.e. ‘has... been undertaking’) rather than the present tense (‘is undertaking’).
It is submitted that, consistent with Berenguel, these matters indicate that the correct construction (which was not the construction adopted by the Tribunal) was that cl.101.221(2)(b) would be satisfied if the visa applicant undertook the course relied upon for the purposes of cl.101.213(1)(c) until completion.
The second issue with the Tribunal’s decision (and one that tends to arise if contrary to the above the court is satisfied that the taking of multiple course are capable of satisfying the requirements of the relevant provisions) is that the Tribunal proceeded on the basis that the provisions required the visa applicant to demonstrate that he was actually undertaking a full time course at the time of decision (rather than, say, demonstrate in the alternative a reasonable explanation as to why those further studies had not been commenced). It is submitted that cl.101.221(2)(b) required the visa applicant to continue to satisfy cl.101.213(1)(c), which required no more than either the undertaking of the relevant course or the existence of a reasonable delay prior to commencement of the course (and if the delay continued to be reasonable, it could extend beyond the time of decision in respect of a contemplated future course).
The applicant had given evidence to the effect that her son had not enrolled in any subsequent course because she wanted him to travel to Australia and continue his study here. The applicant was aware that her son’s qualification would not be recognised in Australia and, accordingly, she had told him to wait until the visa was granted before continuing his studies here (CB144 at [22]). The Tribunal, however, did not consider or address this – it did not consider whether this amounted to a reasonable reason in respect of the delay in the visa applicant commencing further studies.
The error can be categorised in a number of ways: a failure to deal with a relevant consideration or submission made by the applicant (flowing from a misconstruction or of the applicable legislation or otherwise) or simply a failure to correctly construe or apply the correct law. However, it is submitted that the Tribunal ought to have, but failed to, ask itself whether the applicant’s evidence concerning why her son did not enrol in a further course gave rise to a reasonable reason explaining his delay that would lead to the conclusion that he continued to satisfy cl.101.213(1)(c).
Clearly what the Tribunal did not do is ask itself, with respect to the applicant’s evidence in this regard, the questions described by the Court in Sok as mandatory; viz:
a)The actual period of time involved;
b)What activities if any were undertaken during that period of time;
c)The purpose for which those activities were undertaken; and
d)If no activities connected with the ultimate course of study were undertaken the reason for not undertaking activities related to the course of study.
Rather, it either did not consider the matter at all or it wrongly assumed that it was unnecessary to deal with the reason advanced by the applicant because the visa applicant had to actually be undertaking a course at the time of decision (rather than, alternatively, have a reasonable reason explaining the delay as per clause 101.213(1)(c)).
The approach contended for by the applicant is consistent with the purpose of the provision and is to be preferred. Plainly the visa applicant remains dependent on his mother and continues to be financially supported by her while he pursues post-secondary education, which is precisely the type of visa applicant that the Subclass 101 – Child visa is intended to assist. His reason for not studying (that he is following his mother’s advice and wants recognised qualifications) does not undermine this purpose (in fact it is demonstrative of his dependency); and, in any event, a construction of the provisions which requires the Tribunal to judge the reasonableness of the reason advanced in light of the statutory purpose and context does not offend the context and purpose of the legislation.
Conclusion
For the above reasons, the applicant submits that it is necessary in the interests of justice that the application for an extension of time be granted and that the application be upheld with costs.
Minister’s Submissions
The criteria for the visa for which the vis applicant applied were contained in cl.101 of Sch.2 to the Migration Regulations 1994 (Cth). The criteria in that clause were grouped under headings of Primary Criteria (cl.101.2) and Secondary Criteria (cl.101.3) and further grouped under the headings of Criteria to be satisfied at time of application (cl. 101.21, cl. 101.31) and Criteria to be satisfied at time of decision (cl. 101.22, cl. 101.32). The issues in this case concern the criteria under the heading Primary Criteria and, in particular, those found in cl. 101.213 and cl. 101.221.
The applicant’s case is, in essence that those provisions ought not be given their ordinary grammatical meaning because that would result in obvious harshness and be inconsistent with the purpose of the criteria. That purpose is identified in the applicant’s submissions as being to “provide a migration option for offshore children who are genuinely still dependent on their parents.” Two things might be said about that: first, stated at that level of generality, this purpose is not particularly helpful in ascertaining the meaning of the text of clause 101. As will be seen, that clause dictates with some precision the nature and extent of the dependence required in order for a child to be entitled to this subclass of visa. Secondly, even taken at that level, the purpose is not advanced by the construction proffered by the applicant.
The first criterion requires the visa applicant to be a dependent child of a relevant person. In summary, that requires the visa applicant to be a child of that person and, if he or she has turned 18, to be dependent on that person. Regulation 1.05A defines the necessary relationship of dependence:
(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person‘s basic needs for food, clothing and shelter; and
(ii) the first person‘s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person‘s basic needs for food, clothing and shelter; or
(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person‘s bodily or mental functions.
Thus, at the outset, clause 101 requires a specific type of dependency.
The second requirement in clause 101.211 is that, subject to an exception that does not arise, the applicant “has not turned 25”. The applicant does not contend that this must be satisfied at any time other than the time of application. If it were otherwise, the visa applicant could not have satisfied the criterion and there would be no utility in these proceedings. In this way, the heading “Criteria to be satisfied at time of application” is given immediate and substantive operation. The grammatical connection between it and the criterion is supplied by the verb “has not turned”. The use of the perfect tense requires some point of time at which it is to be considered. That point of time is identified by the heading as being the time of application.
The third criterion deals with the parental relationship and need not be further examined.
Clause 101.212 deals with sponsorship. Here, the first requirement is that the sponsor “has turned 18”. Again, this requires a temporal reference and that is supplied by the heading.
Clause 101.213 deals with applicants who have “turned 18”. It will be recalled that an applicant in this category must establish that he or she is dependent upon the relevant person. This clause further refines the class of applicants who, according to the purpose identified by the applicant, are “genuinely still dependent on their parents”. First, it excludes applicants who are engaged to be married or who have, or have ever had, a spouse or de facto partner. Once again, the temporal element required for these criteria is supplied by the heading, namely, time of the application. This is confirmed by later criteria. For example, cl. 101.221(1)(b) applies to a person who had not turned 18 at the time of application, and does not continue to satisfy cl. 101.211 only because he or she has turned 18. See also cl. 101.221(2), cl. 101.223(b), cl. 101.227(1)(b).
The second requirement of clause 101.223 is that the visa applicant is not engaged in full-time work.
The third requirement is central to these proceedings. The verb here is “has been undertaking”. Contrary to the applicant’s submission, this is not the perfect tense, but the present perfect continuous tense. That tense is used to describe an action that has already commenced and is ongoing. Thus, there are two temporal points of reference: the time by which the action must have commenced and the time at which it must be ongoing. The first of those is supplied within cl.101.213(1)(c): “since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system.” The second is provided by the heading, time of application. That is confirmed by reference to cl.101.221(2).
The criterion considered by the High Court in Berenguel was not only of a different nature to this clause, but lacked the contextual links to the time of application readily identified in relation to cl. 101.213(1)(c).
In the case of a visa applicant “who has turned 18 at the time of the application”, there is a requirement to continue to satisfy the criterion in cl. 101.213. This can be given no sensible construction other than that it must be met at the time of the decision. First, the verb is in the present tense; secondly, as the applicant himself submits, the visa subclass is intended to provide a migration path to children who are genuinely dependent. Once it is understood that the nature and extent of the dependence is significantly specified in the criteria, it would be inconsistent with that purpose to read the requirement in cl.101.213 to apply at any time other than the time of the decision: otherwise, a person could marry, move in with a partner and stop studying after lodging a visa and yet still be entitled to the visa.
The absurdity pointed to by the applicant is not real. A construction that limits the grant of visas to children over the age of 18 who are currently studying is perfectly consistent with the underlying purpose of the subclass. It does not prevent the grant of a visa to someone who actually meets all the substantive criteria.
The applicant’s contention is that cl. 101.221(b) ought to be construed so that cl. 101.213(1)(c) must be satisfied until the completion of the relevant course. Relevant to that submission is the observation made by McHugh J in Newcastle City Council v GIO General Ltd (supra) at 113: the “[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.” See also IW v City of Perth & Ors (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J; and Taylor v The Owners-Strata Plan No 11564 & Ors (2014) 306 ALR 547 at [39]. It may be noted that the applicant has proffered no form of words that might allow this construction to arise.
The applicant’s second point is that, if cl.101.213(1)(c) can be satisfied by undertaking more than one course, then cl.101.221(2)(b) can be met even though the applicant is not studying. That point requires even greater textual torture than the first and has no foundation in the language of the regulations. The requirement that a visa applicant must continue to satisfy is that he or she “has … been undertaking” a full-time course. That is to say that, at the time of the application, the applicant must still be undertaking a full-time course. The verb, as already noted, is the present perfect continuous: an action that has started and is ongoing. That language simply does not permit of an end to the study within the decisional timeframe.
For those reasons, both of the applicant’s construction points should fail. The applicant does not otherwise contend that the Tribunal made any jurisdictional error. In any event, it is clear that it made no error. It accepted that the applicant had, by the time of the application, commenced relevant full-time course and that the time it took for him to do so was reasonable in all the circumstances. For that reason, it found that the applicant had satisfied cl. 101.213(1)(c): CB 144 [23]. Its approach in arriving at this conclusion was consistent with the decision of this court in Sok v Minister for Immigration and Multicultural and Indigenous Affairs (supra). However, it then found, uncontentiously, that the applicant had not continued that study. As a result of that finding, it concluded that he had not continued to comply with cl.101.213(1)(c) and so did not meet the requirement of cl.101.221(2)(b): CB 145 [25].
Those reasons reveal a proper understanding of the criteria for the grant of the visa and an application of uncontested factual findings to those criteria.
For those reasons, there is no error in the Tribunal’s decision and the application ought to be dismissed with costs.
Consideration
The applicant, in her submissions, has given extensive consideration to the authorities addressing and legislation governing the application before the Court. Accordingly, it is not necessary to restate these and I accept the contentions noted above at [21]-[33].
The issues in this case concern the “Primary Criteria” to be satisfied in order to be eligible for the grant of the Child visa. The relevant clauses for consideration by the Court, having regard to the circumstances of the visa applicant (see [53]-[60] above) in Schedule 2 to the Migration Regulations are cl.101.213 and cl.101.221.
Clause 101.213(1)(c) relevantly stated that at the time of the visa application:
c) ... the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
Clause 101.221(2)(b) relevantly stated that at the time of decision:
(2) In the case of an applicant who had turned 18 at the time of application: ...
(b) the applicant continues to satisfy the criterion in clause 101.213.
The applicant’s contention, broadly put, is that these provisions should not be given their ordinary grammatical meaning, because to do so would result in obvious unfairness and absurdity, which would be inconsistent with the purpose of the criteria. The applicant contends this purpose is to “provide a migration option for offshore children who are genuinely still dependent on their parents”.
I first turn to the tense of the phrase “has been undertaking” found in cl.101.213(1)(c). This phrase is constructed in the present perfect continuous tense, a tense which, as submitted by the Minister, is used to describe an action that has already commenced and remains ongoing.
In limited circumstances I accept that the present perfect continuous tense can be used to describe an action that has stopped (though the action itself may be unfinished), however, when the tense is used in this context there is a result or effect therefrom that is expressly noted. For example, the statement “it has been raining, so the ground is wet” is framed in the present perfect continuous. This statement can be read in a number of ways, either that:
a)The rain is still ongoing; or
b)The rain has recently stopped; or
c)The rain has recently stopped, but may start again soon.
The connection is contingent on the second part of the statement appearing therein, being that “the ground is wet”, to support the basis that the tense may be used to describe an action that has stopped.
Having regard to the above, there are no word or words present in cl.101.213(1)(c) to support a conclusion that the present perfect continuous tense is used to describe an action, in this case the undertaking of further full-time studies, that has recently stopped.
In the extant matter, in the case of and applicant “who has turned 18 at the time of the application, the clause requires that the applicant continue to satisfy that criterion at the “time of decision” (see [73] above). In cl.101.221(2)(b) the verb used is “continues” which is written in the present tense. Accordingly, on this construction, it must be the case that the applicant is still undertaking studies at the time of the decision in respect of the visa.
Further, as accepted by the applicant, this subclass of visa is intended to provide a migration path for children who are genuinely dependent. The nature and extent of such dependence is addressed in the visa’s criteria. I accept the Minister’s submission that it would be inconsistent to read the requirement in cl.101.213, when read together with cl.101.221, to apply at any time other than at the time of the decision. If that were the case, a visa applicant could also marry a partner, move in with them and cease studying immediately after lodging a visa application yet still be entitled to the visa.
Having regard to the applicant’s reliance on the authority of Berenguel, I am of the view that the criterion considered in that decision is of a different nature the criterion before the Court and, further, lacked the contextual links to the “time of application” identified in cl.101.213(1)(c).
In Newcastle City Council v GIO (supra), his Honour McHugh J stated at 113:
If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances. As Brennan CJ and I said in IW v City of Perth, even when a court adopts a purposive construction to remedial legislation it "is not at liberty to give it a construction that is unreasonable or unnatural.
I accept the Minister’s submissions that the construction of the clauses limits the grant of visas of this type to children over the age of 18, who are currently undertaking studies after the completion of year 12 (or its international equivalents). This construction is consistent, in my view, with the purpose of the subclass.
Consequently, for the above reasons, the first contention alleged in particulars 1.(a) and 1.(a1) of the application cannot be sustained and should be dismissed.
In respect of particulars 1.(b) and 1.(b1), the applicant’s contention is that by undertaking multiple courses of study, even though the visa applicant may not be studying at the time of the decision, the visa applicant is still eligible for the grant of a visa. This contention, as submitted by the Minister, has no foundation in the language contained in the regulations. Having regard to the reasons already noted above, the requirement that an applicant must continue to satisfy is that he or she has been undertaking a full-time course of study”. That is to say that, at the time of the application, the visa applicant must still be undertaking a full-time course of study. Having regard to the Court’s findings in respect of the use of the present perfect continuous tense, the language of the clauses does not permit an end to the study within the decisional time frame.
Consequently, particulars 1.(b) and 1.(b1) must also fail.
There are no other errors alleged in the Tribunal’s decision and, on a fair reading of the evidence before the Court, particularly the Decision Record, no error is apparent.
The Tribunal found that the applicant satisfied ccl.101.213(1)(c) (CB 144 at [23]). However, it found that the applicant had not continued to study at the time of the decision and, as a result, did not meet the requirement of cl.101.221(2)(b) (CB 145 at [25]). For the above reasons, there is no error contained in the Tribunal’s reasoning in this respect.
The application should be dismissed with costs awarded to the Minister.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 19 June 2015
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