Reyes v Minister for Immigration

[2007] FMCA 1721

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REYES v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1721

MIGRATION – Migration Review Tribunal – equivalent of year 12 in Australia – completion of secondary school in the Philippines – case before Tribunal run on the basis that completing secondary school in the Philippines at the age of 18 is the equivalent of completing year 12 – application dismissed.

Migration Regulations 1994, Sch.2 cl.101.213

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294

Applicant: DANILO REYES

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 625 of 2006

Judgment of: Riley FM

Hearing date: 12 October 2007

Date of Last Submission: 12 October 2007

Delivered at: Melbourne

Delivered on: 29 November 2007

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Hymans Solicitors

Counsel for the Respondents: Mr Mosley

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 15 May 2007 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 625 of 2006

DANILO REYES

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant is a citizen of the Philippines. At the age of 23, he applied for a Child Migrant Class AH visa. The applicable criteria at the time of the application were set out in clause 101.213 of Schedule 2 to the Migration Regulations 1994. That clause is as follows:

   (1)     If the applicant has turned 18:

   (a)     the applicant:

   (i)     is not engaged to be married; and

   (ii      does not have a spouse; and

   (iii)    has never had a spouse; and

   (b)     the applicant is not engaged in full‑time work; and

   (c)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 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. (emphasis added)

   (2)Paragraph (1) (c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b) (ii) of the definition of dependent child.

2. All of the issues in this case concern clause 101.213(1)(c), and in particular, the meaning of “the equivalent of year 12 in the Australian school system”. It appears that, in the Philippines, secondary school lasts for four years, rather than six, as in the Australian education system.

3. The evidence was that the applicant, at the age of 18 years, finished secondary school in April 2000. At that point, he was eligible for college. He commenced an electrician’s course in October 2001. It was a 72 hour course, which he completed in November 2001. Between June 2003 and February 2004, the applicant was enrolled in a telecommunications systems course. He then enrolled in a full-time computer course starting in June 2004.

4. The applicant argued before the Tribunal that the delay between finishing school and starting the computer course was reasonable. The applicant said that he had been unable to study immediately after concluding secondary school due to financial and family problems. The Tribunal rejected that explanation and affirmed the delegate’s decision. The applicant now seeks judicial review of the Tribunal’s decision.

Grounds of review

1. The grounds of review are as follows:

   1.The decision was affected by jurisdictional error in that the Migration Review Tribunal failed to have regard to relevant considerations.

   PARTICULARS

   (a)The Tribunal failed to consider and to determine what was the equivalent in the Philippines of year 12 in the Australian school system pursuant to clause 101.213(1)(c) of Schedule 2 to the Migration Regulations 1994;

   (b)The Tribunal failed to consider and to determine when the visa applicant completed the equivalent of year 12 in the Australian school system pursuant to clause 101.213(1)(c) of Schedule 2 to the Migration Regulations 1994.

   2.The conduct was affected by jurisdictional error in that the Migration Review Tribunal erred in interpreting or applying the law.

   PARTICULARS

   The Tribunal assumed without evidence or consideration that the completion of secondary school by the visa applicant in April 2000 was completion of the equivalent of year 12 in the Australian school system pursuant to clause 101.213(1)(c) of Schedule 2 to the Migration Regulations 1994. (Tribunal’s decision, pages 7.7, 8.7, 10.2)

   3.The conduct was affected by jurisdictional error in that the Migration Review Tribunal based its decision on a finding not open on the evidence or material before the Tribunal.

   PARTICULARS

   The Tribunal had no evidence for its assumption that the completion of secondary school by the visa applicant in April 2000 was completion of the equivalent of year 12 in the Australian school system pursuant to clause 101.213(1)(c) of Schedule 2 to the Migration Regulations 1994, but this was a critical finding on which the decision was based in part. (Tribunal’s decision, pages 7.7, 8.7, 10.2)

   4.The conduct was affected by jurisdictional error in that the Migration Review Tribunal had regard to irrelevant considerations.

   PARTICULARS

   The Tribunal considered the visa applicant’s not having undertaken full-time studies from April 2000 to September 2002 as a relevant matter adverse to the application (Tribunal’s decision, pages 7.7, 8.7, 10.2), but either the whole or part of this period was not a period after completion of the equivalent of year 12 in the Australian school system pursuant to clause 101.213(1)(c) of Schedule 2 to the Migration Regulations 1994. (emphasis added)

Discussion

1. The relevant PAM guidelines in paragraph 9.3 treat “completing secondary school” as being identical with the relevant words used in the regulations, namely, “completing the equivalent of year 12 in the Australian school system”. The applicant’s advisers apparently accepted that formulation. They did not suggest to the Tribunal, as they now claim, that completing secondary school in the Philippines is not the same as completing the equivalent of year 12 in the Australian school system. They did not suggest that the applicant had completed the equivalent of year 12 at some point other than when he completed secondary school. They did not suggest that he had not completed the equivalent of year 12 at all.

2. Rather, in a submission dated 24 October 2006 addressed to the Tribunal, the applicant’s solicitor said:

   The sole issue in this case is whether any break in studies for longer than six months is reasonable.

   The applicant’s case before the Tribunal was fought on the basis that the applicant had finished secondary school in April 2000 but that he had good reasons for not commencing full-time post-secondary study earlier than June 2004. The applicant implicitly accepted that completing secondary school was the same as completing the equivalent of year 12 in the Australian school system. He stated clearly and repeatedly that he had completed secondary school in 2000.

3. In these circumstances, in my view, the Tribunal’s decision cannot be impugned on the basis that the Tribunal failed to consider and determine the equivalent in the Philippines of year 12 in the Australian school system or failed to consider and determine when the visa applicant completed the equivalent of year 12 in the Australian school system. The applicant implicitly invited the Tribunal to accept that completion of secondary schooling in the Philippines was the equivalent of the completion of the Australian year 12. The Tribunal proceeded on that basis. It used the notions of the completion of secondary schooling and the completion of year 12 interchangeably. As the applicant did not require the Tribunal to consider and determine the particular issue, because there was a common understanding of how that issue should be resolved, there can be no jurisdictional error consisting of failing to set out the detail of the Tribunal’s consideration and determination that issue.

4. The same can be said of the grounds 2 and 3. The Tribunal does not need evidence of a point that is effectively conceded. The Tribunal’s conclusion is necessarily open on the material before it, namely, the concession.

5. Similarly, in relation to ground 4, the applicant invited the Tribunal to consider all of his studies after completion of secondary school, including the 72 hour course and the telecommunication technician’s course. The applicant’s adviser proffered an explanation for the applicant being unable to study continuously from December 2001 to September 2002: see page 3 of the applicant’s submission to the Tribunal. In these circumstances, it cannot be said that these were irrelevant matters that the Tribunal erroneously took into account.

6. In the alternative, even if there had been a jurisdictional error of one or more of the types mentioned, I regard the manner in which the applicant ran his case before the Tribunal as a discretionary reason for refusing relief. In a sense, the applicant has acquiesced in the invalidity, if any: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [80].

7. The applicant submitted to the court that he should not be bound by the manner in which he ran his case before the Tribunal. The applicant argued that, in matters of public law, it is incumbent on the Tribunal to apply the law correctly, and not shelter behind the misapprehensions of the applicant.

8. There might be merit in that submission if the Tribunal had proceeded on a view of the law or facts that was not on any view open to it. However, I consider that it was open to the Tribunal to conclude that the applicant’s completion of secondary schooling in the Philippines at the age of 18 was the equivalent of the completion of year 12 in Australia. That seems to me to be a simple and obvious conclusion.

9. Notwithstanding the direction of some of the submissions at the hearing before this court, it seems to me that the regulation is not concerned with whether a person is entitled to enter college or university. Rather, it is concerned with allowing people who are 18 or more, and who are thus legally adults, to continue to be eligible for child migrant visas on the basis that they are doing full-time, career-oriented, post-secondary courses of the sort usually undertaken by young adults.

10. Accordingly, in my view, it was open to the Tribunal to conclude that the applicant’s completion of secondary schooling in the Philippines, at the age of 18, was the equivalent of year 12. In view of the applicant’s implicit acceptance of that view, the Tribunal did not need to expose its reasoning process or marshal the evidence on which it was based.

11. Moreover, whether a particular educational qualification is the equivalent of year 12 in Australia is a question of fact. While determinations of fact may be reviewable, in exceptional circumstances, I do not consider that any of those circumstances arise in this case. The applicant simply did not ask the Tribunal to depart from the simple and obvious view that the completion of secondary school in the Philippines, at the age of 18, is the equivalent of the completion of year 12 in Australia.

1. For these reasons, the application must be dismissed with costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate:  Melissa Gangemi

Date:  29 November 2007