Rana v Minister for Immigration & Anor
[2009] FMCA 553
•16 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RANA v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 553 |
| MIGRATION – Review of Migration Review Tribunal decision – student (Temporary) (Class TU) visa – when visa applicant is required to have taken an IELTS test – whether test can be taken after lodgement of visa application. WORDS AND PHRASES – “less than two years before the date of the application”. |
| Migration Act 1958, s.474 Migration Amendment Regulations 2001 (No. 5) |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Fan Fan v Minister for Immigration & Citizenship [2009] FMCA 123 Kamal v Minister for Immigration & Citizenship [2009] FMCA 238 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Ruykys v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 538 |
| Applicant: | NARESH RANA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 35 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 26 March 2009 |
| Date of Last Submission: | 21 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Reynolds |
| Solicitors for the Applicant: | Parish Patience |
| Counsel for the Respondents: | Ms A. Mitchelmore |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 35 of 2009
| NARESH RANA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Mr Rana, applied for a Student (Temporary) (Class TU) visa on 24 April 2007 which was refused by a delegate of the first respondent (“Minister”) on 23 November 2007. Mr Rana then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant law
At the time the visa application was lodged, the Student (Temporary) (Class TU) visa had a number of subclasses: cl.1222(4) of sch.1 to the Migration Regulations 1994 (“Regulations”). The Tribunal recorded at para.6 of its decision (Court Book (“CB”) page 158) that the only subclass in respect of which any claims were advanced by Mr Rana was subclass 572: Vocational Education and Training Sector.
The criteria for the grant of a subclass 572 visa are set out in pt.572 of sch.2 to the Regulations. Relevantly in this case, cl.572.223 stipulates that the following criteria have to be satisfied by a visa applicant at the time of the decision-maker’s decision:
(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) for an applicant who is not a person designated under regulation 2.07AO:
(i) the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 572 and the assessment level to which the applicant is subject, in relation to:
(A) the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake; …
That is to say, pursuant to cl.572.223(2)(a), an applicant must provide evidence of English language proficiency in accordance with the requirements mentioned in sch.5A. Which clause in sch.5A will be relevant to a particular application is dictated by the “assessment level” to which an applicant is subject, which in turn is determined by reference to an applicant’s passport: see regs.1.41, 1.42.
At the relevant time, the assessment level for an applicant who applied for a subclass 572 visa and who held an Indian passport was Assessment Level 4. The provision in sch.5A which relates to that assessment level is cl.5A404 which relevantly provides:
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;…
ELICOS stands for “English Language Intensive Course for Overseas Students” and IELTS stands for “International English Language Testing System”: reg.1.03.
The Tribunal erroneously found that Mr Rana was subject to Assessment Level 3 and therefore applied cl.5A407 instead of cl.5A404. Clause 5A407 relevantly provides:
5A407 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 30 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 4.5; …
Background facts
As already recorded above at [1], Mr Rana applied for a Student (Temporary) (Class TU) visa on 24 April 2007.
On 1 September 2007 he undertook an IELTS test and achieved an overall band score of 6.0.
On 23 November 2007 a delegate of the Minister found that Mr Rana failed to satisfy the criterion in cl.572.223(2)(a)(i)(A) as he had not provided, “at time of lodgement”, evidence of English language proficiency in accordance with sch.5A. Mr Rana then sought review of that decision by the Tribunal, which identified the central issue before it in the following terms:
The applicant undertook an IELTS test [on] 1 September 2007, achieving an overall band score of 6.0. This is after the date of the visa application and as such the Tribunal considered what is meant by IELTS test “taken less than 2 years before the date of the application”.
The expression “less than 2 years before” in this context is ambiguous, and there is some question as to whether the results of an IELTS test taken after the visa application was lodged, including during the review process, can be taken into account. (paras.24, 25)
The reference to “taken less than 2 years before the date of the application” was, in the context of the Tribunal’s erroneous application of cl.5A407, a quotation from cls.5A407(a)(ii) and (b)(ii). However, the same form of words is also employed in cls.5A404(a)(ii) and (b)(ii), which was the clause against which Mr Rana’s application should have been reviewed.
The Tribunal noted that the words “less than 2 years before” could be interpreted to mean “no more, or no earlier, than 2 years before” the date of application, with the consequence that results of any IELTS test taken more recently than the date two years immediately preceding the date of application could be considered. However, the Tribunal also noted that:
a)the expression “less than x years before” is not usually understood to include any period after the specified time or event and such a construction arguably puts strain on the language of the provision;
b)the explanatory statement relating to the amending regulations which introduced sch.5A indicates that the drafters intended that the test be taken before the date of application;
c)this intention is reflected in the approved form 157A “Application for a student visa” which states:
[i]f you are required to provide the results of an English language test, you must sit the test before you lodge your visa application. If you sit a test after you have lodged your application, the results of this test cannot be taken into account;
d)the expression “less than 2 years before” appears in other provisions of sch.5A in a way that unambiguously refers to the past; and
e)the subclass 571 visa has an equivalent requirement which is expressly referrable to the time of decision; i.e. an applicant must provide evidence of English language proficiency by way of an “IELTS test that was taken less than 2 years before the time of making the decision on the application”, and the fact that the drafters could have used the same expression in cl.5A407 but chose not to suggests that their intention in relation to subclass 571 was to have a different meaning.
In light of these considerations and in the absence of judicial guidance, the Tribunal’s preferred view was that the IELTS test had to be taken “within the 2 year period before the date specified”, that is, before the date of the application. The Tribunal therefore found that it could not take into account the applicant’s IELTS test of 1 September 2007.
As Mr Rana had not undertaken an IELTS test less than two years before the date of application, the Tribunal found that he did not satisfy cls.5A407(a) and (b). The Tribunal also found that Mr Rana did not satisfy any of the other provisions in cl.5A407.
As Mr Rana did not provide evidence of English language proficiency in accordance with cl.5A407, the Tribunal found that he did not meet an essential requirement of cl.572.223 and it affirmed the decision of the Minister’s delegate.
Proceedings in this Court
In the amended application Mr Rana alleged that the Tribunal committed jurisdictional error by applying the wrong test. This allegation was particularised as follows:
(a)In rejecting the application to it, the Tribunal held that the Applicant did not satisfy regulation 572.223(2)(a)(i)(A) of the Migration Regulations 1994 (Cth) (“Regulations”) which, relevantly, required the Applicant to comply with clause 5A407(a) and (b) of Schedule 5A of the Regulations.
(b)In making the finding referred to in the preceding paragraph, the Tribunal adopted a construction of clauses 5A407(a) and (b) to the effect that these provisions could never be satisfied by an International English Language Testing System (“IELTS”) test taken after the date of the visa application.
(c)This constituted an erroneous construction of regulation 572.223(2)(a)(i)(A) and clauses 5A407(a) and (b) of Schedule 5A because an IELTS test taken between the date of the visa application and date of decision was capable of satisfying these provisions, correctly construed.
In pressing his allegation of jurisdictional error, Mr Rana did not rely on the Tribunal’s erroneous reference to cl.5A407, rather than correctly reviewing the application against the requirements of cl.5A404. He acknowledged that the issue relevant to these proceedings was present in both clauses and that that issue, rather than the identity of the clause employed, would determine the matter. Consequently, my consideration of the proper construction of the Regulations will be expressed by reference to cl.5A407 as that was the provision considered by the Tribunal. Nevertheless, the conclusion reached on that question will apply equally to the interpretation of cl.5A404 which, I accept, was the clause which the Tribunal should have considered.
At the outset it can be noted that the parties did not disagree on what “the application” meant where those words are used in cls.5A407(a) and (b), each accepting that this was a reference to the application for the visa, not the application to the Tribunal for review of the delegate’s decision. This also accords with the views expressed in relation to cl.5A404 by Scarlett FM in Fan Fan v Minister for Immigration & Citizenship [2009] FMCA 123 at [32] and Smith FM in Kamal v Minister for Immigration & Citizenship [2009] FMCA 238 at [27], with which I respectfully agree.
Counsel for Mr Rana submitted that the phrase “two years before the date of the application” appearing in cls.5A407(a) and (b) denotes a single point in time and that the phrase “taken less than” precludes consideration of any IELTS test taken earlier than or coincidently with this point in time. It was submitted that the statutory test stipulated no end date, that “the date of the application” was not the end point of a period of time but merely a point of reference for determining the earliest date on which an applicant could sit the necessary IELTS test. Thus it was submitted that cls.5A407(a) and (b) did not require that an applicant’s IELTS test be sat prior to the visa application being lodged.
In para.19 of his written submissions, counsel for Mr Rana put the argument in the following way:
Simply put, a test can only be sat ‘more than’, ‘equal to’, or ‘less than’ “2 years before the date of application”. An IELTS test sat after the date of application cannot on any view be “more than 2 years before the date of application”. Obviously it also cannot be equal to “two years before the date of application”. Therefore, as a matter of logic, it can only be “less than 2 years before the date of application”. (emphasis in original)
It was further submitted that as cl.5A407 prescribes a visa criterion which has to be satisfied “at the time of decision”, this suggested that an IELTS test sat between the lodgement of the application and the making of the decision would satisfy its requirements because otherwise it would have been part of a criterion to be satisfied at the “time of application”. It was submitted that the distinction between “time of application” and “time of decision” criteria was one of substance and the fact that cl.572.223 was a “time of decision” criterion had to signify something when determining what cl.5A407 meant.
It was also noted that elsewhere in the Regulations, rather than use the phrase “less than x years before” which is seen in cl.5A407, the formulation “in the period x months immediately before the date on which the application was made” is used. Mr Rana submitted that the difference in drafting indicated a difference in meaning. By reference to numerous individual regulations, Mr Rana’s counsel submitted that the Regulations overall demonstrate that:
a)where a period prior to the date of application is what is intended, a particular regulation will clearly identify this whereas cl.5A407 uses different words; and
b)the Regulations use the “time of application” and “time of decision” criteria with purpose and cl.5A407 was cast as a “time of decision” criterion for a reason.
It was also submitted that a purposive interpretation of cl.5A407 would support Mr Rana’s contentions. It was said that if the Tribunal took into consideration IELTS test results obtained between the date of application and the date of decision this would not impinge on the purpose of the Regulations. That purpose was said to be ensuring that students have recent evidence that demonstrates that they have English language ability sufficient to undertake the courses they propose to study. The lack of impingement upon the purpose of the Regulations was said to be because students with test scores obtained in this period would still be required to demonstrate satisfactory English language ability and evidence from this period would be very recent, with the result that the decision-maker could be confident that their ability had not deteriorated significantly since taking the test.
Consideration
The identification of cl.5A407’s correct meaning will not turn on a construction based on inferences drawn from the structure and text of the Regulations more generally. Mr Rana sought to distil, from a comparative analysis of the Regulations’ various prescriptions of the points at which language proficiency criteria have to be considered, an overarching policy behind the way the Regulations are expressed, but his efforts in this regard have not been successful. No criticism is intended by this observation. It merely acknowledges that the Byzantine nature of the Regulations, exacerbated by frequent amendments, defies reliable analysis of this sort. For instance, the fact that a form of words is used in one part of the Regulations and a different formulation in another does necessarily mean that they were intended to mean different things. The difference may be no more than a reflection that the regulations in question were introduced at different times and reflect a change in drafting style during that period (cf. cl.5A504(1)(a)(ii) and cl.5A504(1)(aa)).
Moreover, the applicant invites the Court to infer an intention or purpose from the Regulations which is contrary to the expressed intention found in the Explanatory Statement to the Migration Amendment Regulations 2001 (No. 5). In this regard, the Tribunal correctly identified the relevant content of the Explanatory Statement and said:
The Tribunal also notes that the Explanatory Statement to the amending regulations that introduced Schedule 5A indicates that the drafters’ intention was that the test had to be taken before the date of application. It states that:
“under the new students regime, potential students would sit the test to gauge their English proficiency before applying for a student visa”. (at para.27)
Although counsel for Mr Rana has demonstrated that a variety of verbal formulations has been employed in the Regulations to express ideas identical to, similar to or different from the ideas sought to be expressed in cl.5A407, the purpose of such distinctions, should there be one, can only be a matter of inference. The Court will not infer from the Regulations an intention which is in conflict with the drafters’ express intention. Consequently, I do not infer that the meaning of the expression “less than 2 years before the date of the application” is elucidated by other provisions in the Regulations. I do, however, conclude that the drafters intended the expression to have the effect of requiring an applicant to sit an IELTS test before lodging an application for a student visa.
Even so, that does not dispose of the matter. While recognising the drafters’ intention, and the appropriateness of preferring a meaning which is both reasonably open and in conformity with the drafters’ intention (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408), the Court may nevertheless conclude that the form of words used does not actually carry out that intention. Consequently, it is necessary to consider the words themselves with a view to determining their meaning.
Mr Rana’s submission that the test in cl.5A407 is focused on determining the outer point for the taking of an IELTS test rather than on defining a period within which such a test might be taken does not correctly construe the provision. Although the clause is concerned with the point in time when an applicant sits an IELTS test, the satisfaction of the clause, and the acceptability of the date when the IELTS test is taken, is determined by a statutory test involving a period (“less than 2 years”) which is identified by reference to a fixed point (“the date of the application”) and the period’s relationship to that fixed point (“before”).
While the statutory test does have the effect, as Mr Rana’s counsel submitted, that the IELTS test may not be taken more than two years before the date of the application, it is not a necessary corollary of that fact that the outer limit of when the IELTS test may be taken is the only fixed point in the equation. There is another one, namely the date of the application, which is the more important of the two because it is the ultimate point of reference. Without it the point at which or the period in which the IELTS test may be taken could not be identified.
Moreover, the IELTS test which an applicant has to sit must have occurred “before” the date of the application. That word presents no linguistic complexity as demonstrated by the consideration given to it by Mansfield J in Ruykys v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 538 at 543 [16] who referred to it meaning “in time preceding; previously” or “previously to” or “earlier in time; previously, beforehand, in the past” or “previous to, earlier than (an event, point of time, etc)”. This word has the effect of closing the period within which the IELTS may be sat and the criterion satisfied. Unless that event occurs “before” the application is lodged it does not fall within the prescribed period and cannot be taken into consideration.
The correctness of the approach set out at [31] and [32] may be tested by expressing the statutory test slightly differently. If one were to speak of “X” happening “less than an hour before” “Y”, there would be no doubt that “X” occurred before “Y” and not after it. Similarly, a question asking whether “A” happened “less than an hour before” “B” is not understood to contemplate “A” happening after “B”. The same considerations apply to the proper construction of the expression “less than two years before the date of the application”. It is an unusual expression because it is not in common use but its meaning is, in essence, the same as the more familiar expressions considered above. That is to say, there is a fixed point in time, identified by a particular event, to which a period in time relates and, in the given example and the statutory test, it is a period of time which occurs “before” the particular event and not after it.
The argument over the meaning of cl.5A407 partly arises out of its location in a “time of decision” criterion. It is posited that this indicates that the clause means something other than what it ostensibly says. However, not only does the stated intention of the drafter contradict this proposition but there appears to be good reason why the clause requires an applicant to have sat an IELTS test before applying for the visa.
Clause 5A407 should be read in the context of the cl.572.223 criterion with which it is linked. Clause 572.223 is concerned in part with ensuring that, at the time of decision, the applicant has given the Minister evidence in relation to the “applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake”. Clause 5A407(a) also requires an applicant who has achieved an IELTS score of 5.5 to provide evidence that he or she will not take an ELICOS before commencing the course. Conversely, cl.5A407(b) provides that if the applicant achieved an IELTS test score of 4.5 then that applicant has to give evidence that he or she will undertake an ELICOS of no more than thirty weeks’ duration before commencing his or her principal course.
Satisfying the language proficiency criteria is, in the context of these visa applications, part of a two-step process: the first part being the identification of what level of proficiency an applicant has and the second part being the provision of evidence that tuition will be put in place to remedy an acceptable lack of English language proficiency or, in the case of applicants with a better grasp of English, that they will not delay their principal studies by taking an ELICOS. Ensuring that an applicant has undertaken an IELTS test before submitting his or her visa application aids the efficiency of the decision-making process by enabling the second step required of the applicant, the commitment to undertake or to not undertake an ELICOS, to be taken once the IELTS result is known.
The inconvenience potentially associated with permitting an IELTS test to be taken after the application is lodged demonstrates why there is no incongruity in a “time of decision” criterion requiring that such a test be taken before lodgement. Unless the applicant has already sat an IELTS test by the time he or she lodges the visa application, the decision-making process could be unduly delayed or even frustrated. Clause 5A407 provides no means to require an applicant to sit the test by any particular date other than that this be “less than two years before the date of the application”. That means that if Mr Rana’s argument were to be accepted, there is no prescribed limit on how long an applicant could delay his or her test and thus the decision on the application. It might only be a matter of weeks or it might be a series of delays involving requests for discretionary postponements of the decision on the visa. Further, once the test result was received, the applicant would be expected to provide evidence of whether he or she was going to undertake an ELICOS, adding additional time to the decision-making process.
However, if the applicant has sat the IELTS test before lodging his or her application then it is only a matter of receiving the result and making the ELICOS undertaking and, all other things being equal, a decision on the application can be made.
The fact that cl.5A407 is part of “time of decision” criterion does not, in my view, support Mr Rana’s argument that the clause permits an IELTS test to be taken after the date of the visa application.
In reaching the above conclusions I do so respectfully disagreeing with the reasons for judgment of Smith FM in Kamal’s case where his Honour held that cl.5A404(a)(ii) permitted an applicant to submit an IELTS result relating to a test taken between the date of the application and the date of the decision. Mr Rana’s counsel submitted that his Honour’s reasons were correct and enunciated the preferable construction of the relevant expression.
In Kamal’s case, Smith FM found the expression “less than two years before the date of the application” to be ambiguous and perhaps elliptic. However, with great respect to his Honour and for the reasons I have expressed, I do not agree that the expression is, truly, ambiguous. I accept that a construction different to the one I have found to be correct is arguable. However, I believe such an approach to be over-subtle. It involves acceptance of the argument that a time period “less than” can reduce from two years less a day, to zero, to a negative figure. As an abstract concept that is logical enough, but it lacks reality when dealing with mundane life.
Smith FM also found the Explanatory Statement to have left many aspects of the legislative scheme obscure and to be inaccurate in the context of cl.5A404(a)(ii). For the following reasons, I cannot agree.
Although his Honour noted in respect of pt.4 of sch.5A that for level 4 and 3 applicants some English language qualifications did not have a temporal element, his Honour did not go on to note that all those which did have a temporal element referred to IELTS tests “taken less than two years before the date of the application”.[1] Indeed, that form of words can be found elsewhere in sch.5A.[2] At the time of the Tribunal’s decision, all of these provisions stood in terms identical or relevantly identical to the ones which were originally inserted into the Regulations in 2001. In respect of each of cls.201, 204, 301, 401, 404, 407, 501, 504, 507, 601, 604, 607, 701, 704, 707 and 801, the Explanatory Statement states:
Under the new students regime, potential students would sit the test to gauge their English proficiency before applying for a student visa.
[1] Clauses 5A401; 5A404(a)(ii); 5A404(b)(ii); 5A404(d); 5A404(e); 5A407(a)(ii); 5A407(b)(ii); 5A407(d); and 5A407(e).
[2] Clauses 5A201; 5A204(a); 5A204(c); 5A204(d); 5A301(1); 5A501; 5A504(1)(a)(ii); 5A504(1)(b)(ii); 5A504(1)(d); 5A507(1)(a)(ii); 5A507(1)(b)(ii); 5A507(1)(d); 5A601; 5A604(2)(a)(ii); 5A604(2)(b)(ii); 5A604(d); 5A604(e); 5A607(2)(a)(ii); 5A607(2)(b)(ii); 5A607(2)(d); 5A607(2)(e); 5A701; 5A704(a)(ii); 5A704(b)(ii); 5A704(d); 5A704(e); 5A707(a)(ii); 5A707(b)(ii); 5A707(d); 5A707(e); and 5A801.
In such circumstances, respectfully I cannot agree with Smith FM’s conclusion that the Explanatory Statement is obscure as far as it deals with the time by which an applicant has to have sat an IELTS test. In respect of each clause which deals with this question it expresses the relevant intention and purpose of the regulation in the terms quoted above at [43].
Nor, for the reasons given earlier, do I agree that the Explanatory Statement is inaccurate in the context of cl.5A404(a)(ii) or, relevantly, cl.5A407(a)(ii). I have concluded that the expression in question, properly understood, requires an applicant to sit his or her IELTS test before lodging the visa application. This is the purpose of the relevant provision as explained by the Explanatory Statement.
In summary, and having regard to the stated purpose of the clause and verbal formula in question, I conclude that cls.5A407(a) and (b) require a visa applicant to have sat an IELTS test before lodging his or her visa application.
Finally, the parties agreed that such a determination would also dispose of the question of how cl.5A404 ought to have been construed had the Tribunal correctly identified that clause as the one which it had to consider. It is appropriate to note that even absent such a concession, in the exercise of discretion I would, nevertheless, not have quashed the Tribunal’s decision. It would be futile to remit the matter to the Tribunal for re-hearing as an identical outcome would necessarily be the result.
Conclusion
For these reasons, I conclude that the Tribunal’s decision was not affected by jurisdictional error.
Consequently, the application will be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 16 June 2009
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