Patel v Minister for Immigration

[2011] FMCA 875

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATEL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 875

MIGRATION – Application for judicial review of decision by Migration Review Tribunal – refusal to grant student visa – whether requirements of English language proficiency satisfied – where early withdrawal from course – where IELTS test score is below minimum requirement – where ELICOS previously undertaken fails to satisfy future requirement – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.65
Migration Regulations 1994 (Cth), Schedule 5A, cl.5A404

Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8
Minister for Immigration and Citizenship v Grantand Others (2009) 180 FCR 179; [2009] FCA 1059
Minister for Immigration and Citizenship v Kamal (2009) 178 FCR 379; [2009] FCAFC 98

First Applicant: HETALBEN PRAKASHBHAI PATEL

Second Applicant: PRAKASHBHAI PATEL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 184 of 2011

Judgment of: Raphael FM

Hearing date: 10 November 2011

Date of Last Submission: 10 November 2011

Delivered at: Perth

Delivered on: 10 November 2011

REPRESENTATION

For the Applicants: In person

Counsel for the Respondents: Mr A Gerrard

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicants pay the Respondents’ costs in the sum of $6,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 184 of 2011

HETALBEN PRAKASHBHAI PATEL

First Applicant

PRAKASHBHAI PATEL

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me today an application for review of a decision[1] of the Migration Review Tribunal,[2] determined on 14 June 2011, to affirm a decision not to grant the Applicants Student (Temporary) (Class TU) Visas.[3]  In fact the Decision relates to the First Applicant.[4]  The Second Applicant[5] is Mrs Patel’s husband, whose visa status depends entirely upon that of his wife.

   [1] “Decision”.

   [2] “Tribunal”.

   [3] “Student Visa”.

   [4] “Mrs Patel”.

   [5] “Mr Patel”.

2. The application for the Student Visa was made on 24 August 2010.[6]  Mrs Patel listed her intended study as a Diploma of Business Management at the Technical College of Western Australia.  In order to obtain the Student Visa, Mrs Patel had to satisfy the requirements of the visa which were contained in the Migration Act 1958 (Cth)[7] and the Migration Regulations 1994 (Cth)[8] as at the date of the decision. Section 65 of the Act states: 

   [6] “Visa Application”.

   [7] “Act”.

   [8] “Regulations”.

   Decision to grant or refuse to grant visa

   (1)  After considering a valid application for a visa, the Minister:

   (a)  if satisfied that:

   (i)  the health criteria for it (if any) have been satisfied; and

   (ii)  the other criteria for it prescribed by this Act or the regulations have been satisfied; and

   (iii)  the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

   (iv)  any amount of visa application charge payable in relation to the application has been paid;

   is to grant the visa; or

   (b)  if not so satisfied, is to refuse to grant the visa.

   Note:          See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister's power under that section.

   (2)  To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).

3. The relevant regulations for the grant of the Student Visa included regulations relating to Mrs Patel’s competence in English. These are found in Schedule 5A of the Regulations. The assessment level that was relevant to Mrs Patel, being a citizen of India, was assessment level 4. The relevant requirements under assessment level 4 are provided in clause 5A404 of Schedule 5A of the Regulations, the whole of which was set out in the Tribunal Decision [CB139-141].  The most relevant section of the requirement is that contained in cll.5A404(a) and (b) which states:

   5A404    English language proficiency

   The applicant must give evidence that one of the following applies:

   (a)    the applicant:

   (i)    will not undertake an ELICOS before commencing his or her principal course; and

   (ii)    achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5;

   (b)    the applicant:

   (i)    will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course; and

   (ii)    achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.0;

   [emphasis added]

4. Mrs Patel completed a five-week ELICOS course in April-May 2009.  She also completed an IELTS on 25 October 2008 [CB33].  Following the ELICOS course, she enrolled in a Diploma of Business at the Perth Institute which she studied for one semester before cancelling her enrolment in December 2009.  Mrs Patel decided to change her course to a Certificate III in Printing and Graphic Arts at the Technical College of Western Australia which ran between January 2010 and January 2011. 

5. However, by the time the matter came before the Tribunal, Mrs Patel had supplied two further certificates of enrolment for courses at the Technical College of Western Australia, the first being a Certificate IV in Small Business Management scheduled to run for the first half of 2011, and then a Diploma of Management scheduled to run for the second half of 2011.  Ultimately however, she withdrew from the first course due to complications arising out of her pregnancy. 

6. The certificates of enrolment and Mrs Patel’s previous short enrolment in other courses would appear to have been undertaken pursuant to the provisions of bridging visas which she had been granted while the application for her Student Visa was being considered.  It was the Student Visa that the Tribunal was considering at the hearing that it held, and in its Decision. 

7. The Tribunal was therefore required to return to the provisions of cl.5A404 which have been extracted. In its findings and reasons the Tribunal indicated at [CB 142-143]:

   (34) In support of her application the applicant lodged the result of an IELTS test taken in October 2008 in which she had scored an overall band score of 5.0.  This does not satisfy the requirements of 5A404(a) which require an applicant to have achieved an overall band score of 5.5 in an IELTS test taken less than two years before the date of application. 

   (35) The applicant also provided evidence that she had completed a five week ELICOS course in May 2009. 

   (36) The only relevant ELICOS for the applicant would be under 5A404(b) which states “the applicant will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course …”

   (37) This clause refers to the applicant undertaking an ELICOS after the date of application but before the commencement of the principal course.  The ELICOS undertaken by the applicant in April and May 2009 is therefore not relevant. 

   (38) On the basis of the above, the Tribunal finds that the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and Assessment Level 4 to which she is subject, in relation to the requisite English language proficiency.  Accordingly, the applicant does not satisfy the requirements of cl.572.223(2)(a)(i).

   (39) As the Tribunal has found the applicant does not meet an essential requirement of cl.572.223, and as no evidence has been provided on which the Tribunal could be satisfied that the applicant meets the criteria for any of the other Student (Temporary) (Class TU) visa subclasses, the decision under review must be affirmed.

8. The gravamen of the Tribunal’s argument, as submitted by Mr Gerrard on behalf of the First Respondent, is that the ELICOS requirement in the Regulations is a future requirement.  Mr Gerrard points out that cll.5A404(b)(i) and (ii) contain different tenses: subparagraph (i) saying “will undertake” and subparagraph (ii) saying “achieved”, so that the scheme is quite clear that a person applying for such a visa must have already received the IELTS test result before the decision is made, and has shown evidence that an ELICOS course will be undertaken before the substantive course begins.  Therefore, evidence that an ELICOS course was undertaken before the application was made cannot satisfy the requirements. 

9. Although this particular problem has not been considered previously by the courts, Jagot J considered a similar one in Minister for Immigration and Citizenship v Grantand Others.[9]  At [28] her Honour said:

   In this context the words “the application is accompanied by evidence that the applicant has made arrangements to undergo a language test” are directed towards an outcome contemplated by cl 485.222, being proof that an applicant has “competent English”. The purpose of the provision, to enable an applicant to demonstrate competent English at the time of application or of decision, is best achieved by giving the words their ordinary meaning. The ordinary meaning of the phrase “has made arrangements to undergo” involves two key aspects. First, the arrangements must have been made, in the sense of being in place or in existence, when the application is made. Second, the arrangements must be to undergo, in the sense of to take or to sit for, a test.

   And at [31] her Honour noted:

   [9] (2009) 180 FCR 179; [2009] FCA 1059.

   First, the natural and ordinary meaning of the phrase denotes a future requirement. 

10. Finally, at [42] her Honour said:

    In the present case it is not strictly necessary to decide whether meaning 2 or meaning 3 is to be preferred because Mr Grant is only entitled to a visa if meaning 1 is accepted. Nevertheless, I have concluded that the meaning advanced by the Minister in this appeal, being meaning 2, is to be preferred. That is, an applicant “has made arrangements to undergo a language test” within the meaning of cl 485.215(c) if an applicant has arranged to take, but has not yet taken, the test. This is the natural and ordinary meaning of the words of the provision. It is consistent with the wider context of the statutory scheme, specifically enabling an applicant to satisfy the criteria either by demonstrating competent English at the time of application or, provided the applicant has made the arrangement for a test, at the time of decision. The potential anomaly created by this construction (that an applicant would be better off taking a test after the time of application than before if there was any risk of not obtaining the required result before that time) is answered by the fact that demonstrating the making of the arrangement is not onerous and is largely within an applicant’s control.

    Her Honour specifically noted the decision which she had made was not, in her opinion, affected by the decision of the Full Bench, Finn, Emmett and Edmonds JJ in Minister for Immigration and Citizenship v Kamal.[10]  Both Kamal and Berenguel v Minister for Immigration and Citizenship[11] are cases that emphasise that the schemes for establishing the criteria for the grants of student visas are directed at recognising recent competency in the English language. 

    [10] (2009) 178 FCR 379; [2009] FCAFC 98 (“Kamal”).

    [11] (2010) 264 ALR 417; [2010] HCA 8.

11. On 8 July 2011, the Applicants filed with this Court an application for review of the Tribunal Decision.[12]  There were two grounds stated: 

    (1) I apply to MRT for review of that decision, when I went for hearing to MRT they ask me to why you did not continue your study.  During this time of my application for review I finished my certificate 3 on bridging visa then with my pregnancy I got morning sickness and vomiting problem so I did not go to college because my doctor told me to take full bed rest and I was not able to go to college and attend my class.  During last hearing of MRT they told me that they would have been able to give me my visa back if I attend my college and continue my study.

    (2) When I apply for student visa I rang department several time asking if there is any information you required then tell me I will provide it but they told me that we will contact you if we required any further information but I never got single letter requesting any further information. 

    [12] “Review Application”.

12. It will be clear from a perusal of these grounds that neither of them relate to a jurisdictional error into which the Tribunal may have fallen.  The first ground is merely rehearsing certain factual matters concerning Mrs Patel’s particular situation, and the second ground is making a complaint against the Department of Immigration and Citizenship.[13] 

    
    

    In regard to that second ground, I would note that in a letter dated 20 October 2010, the Department wrote to Mrs Patel giving her a considerable amount of information concerning her Visa Application.  At [CB074] there is reference to the English language requirements which states:

    NB: Your IELTS band score must be 5.5 or higher.  If your IELTS band score is 5.0 you will be required to demonstrate that you will be studying an ELICOS course of no more than 20 weeks before you begin your principal course. 

    [13] “Department”.

13. The Applicants appeared before me today.  Mr Patel spoke on behalf of his wife.  He explained in some detail the medical issues surrounding his wife, and rehearsed their correspondence and telephone communication with the Department.  He made mention of the fact that the Tribunal had said something about a Certificate IV.  He also told me that he and his wife had had considerable communication with the various colleges, and they had been told that his wife’s ELICOS and IELTS tests complied with the visa requirements.  Of course it is most unfortunate if the Applicants were misled by the colleges, but that does not bring the Tribunal Decision into jurisdictional error. 

14. I accept that something might have been said by the Tribunal relating to the Certificate IV because one of the provisions of cl.5A404 deals with the visa-holder having successfully completed a substantial part of a course leading to a qualification at the Certificate IV level or higher. But the difficulty that Mrs Patel has in this regard is that while she was enrolled for such a course, she, by her own admission, withdrew from it very early and could, therefore, not be said to have successfully completed a substantial part of it. In any event, it was up to Mrs Patel to make that case by the production of evidence and she did not do so.

15. I am satisfied from a reading of the Tribunal Decision, and in particular [38] extracted above [CB143], that the Tribunal did carry out a full assessment of the Visa Application against all the relevant requirements and, therefore, completed the task which had been assigned to it. 
    In my view, the Tribunal did not fall into jurisdictional error in the manner in which it reached its Decision.  Therefore, the Review Application must be dismissed, and the Applicants must pay the Respondents’ costs which I assess in the sum of $6,200. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 17 November 2011