SAPKOTA v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 77
•16 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAPKOTA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 77 |
| MIGRATION – Review of decision of Migration Review Tribunal – application of correct regulation – legal error – no jurisdictional error - meaning of word “will” in cl.5A404 – purpose of legislation – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.351, 360, 360A, 362B, 476 Migration Regulation 1994 (Cth), Sch. 2, 5A |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10;(2001) 177 ALR 473 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; [2001] 206 CLR 323; (2001) 180 ALR Singh v Minister for Immigration [2010] FMCA 1006 Minister for Immigration and Citizenship v Grant (2009) 1059 FCR 179 Patel v Minister for Immigration and Citizenship [2011] FMCA 875 |
| Applicant: | MIN RAJ SAPKOTA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1130 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 9 December 2011 |
| Date of Last Submission: | 9 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 16 February 2012 |
REPRESENTATION
| Appearing for the Applicant: | Mr M Newman |
| Solicitors for the Applicant: | Newman & Associates |
| Appearing for the Respondents: | Mr O Jones |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 3 June 2011 is dismissed.
There be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1130 of 2011
| MIN RAJ SAPKOTA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This application was made on 3 June 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 2 May 2011, which affirmed the decision of a delegate of the respondent Minister to refuse a student visa to the applicant on 4 January 2010.
Background
The applicant is a citizen of Nepal who arrived in Australia on 8 January 2009 on a subclass 572 student visa, which ceased on 19 May 2010. With the assistance of a migration agent, the applicant applied for a Student (Temporary) (Class TU) visa on 30 November 2009 (Court Book – “CB” – CB 1 to CB 7) in order to enable his enrolment in a three year Advanced Diploma of Business at the Australian Institute of Professional Education (CB 8 to CB 13).
The Delegate
The delegate found that the applicant had not shown that his proficiency in English was to the required level as set out in Sch.5A of the Migration Regulations 1994 (Cth) (“the Regulations”) (also see specifically cl.572.223 of Sch.2 to the Regulations). The delegate went on to consider whether the applicant satisfied the requirements of other subclasses within the Student (Temporary) (Class TU) visa, however it found that the applicant satisfied neither the primary nor secondary criteria for the grant of any relevant subclass visa (CB 20 to CB 27).
Relevant to the current proceedings, it is important to note that the reference to Sch.5A was in particular to cl.404 which was, and is, in the following terms:
“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 application, an Overall Band Score of at least 5.0
(c) the applicant:
(i) is fully funded; and
(ii) has a level of English language proficiency that satisfies his or her proposed education provider; and
(iii) if the applicant is to undertake an ELICOS before commencing his or her principle course – will undertake an ELICOS of no more than 20 weeks duration;
(d) the applicant had, less than 2 years before the date of application:
(i) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:
(A) in Australia; and
(B) in English; or
(ii) successfully completed the requirement for a Senior Secondary Certificate of Education, in a course that:
(A) is specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English; or
(iii) as the holder of a student visa – successfully completed a substantial part of a course (other than a foundation course) that:
(A) was conducted in English; and
(B) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
(iv) successfully completed a substantial part of a course that:
(A) is specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English; and
(D) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
(v) successfully completed a foundation course that was conducted:
(A) in Australia; and
(B) in English; or
(vi) successfully completed a course in foundation studies that:
(A) is specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English;
(e) the applicant achieved, less than 2 years before the date of the application, the required score in a test that is specified in a Gazette Notice under clause 5A102;
(f) the applicant has:
(i) a level of English language proficiency that satisfies the applicant's proposed education provider; and
(ii) at least 5 years of study in English undertaken in 1 or more of the following countries:
(A) Australia;
(B) Canada;
(C) New Zealand;
(D) South Africa;
(E) the Republic of Ireland;
(F) the United Kingdom;
(G) the United States of America.”
The Tribunal
Through the same migration agent, the applicant applied to the Tribunal for review of the delegate’s decision on 11 January 2010 (CB 28 to CB 38). On 5 May 2010 the applicant’s migration agent wrote to the Tribunal to submit further documentation for the Tribunal to consider. Specifically, a confirmation of enrolment, an International English Language Testing System (“IELTS”) report, and “proof of 20 weeks English Completed” (CB 42 to CB 55).
On 23 March 2011 the Tribunal invited the applicant, through his migration agent, to appear before it on 29 April 2011 (CB 57 to CB 59). Neither the applicant nor his representative appeared at that time ([19] at CB 68). Nor did the applicant provide any explanation for his non-attendance.
Having satisfied itself that the applicant had been properly invited to a hearing pursuant to s.360 of the Act, and that the applicant had notice of the requirements of s.360A of the Act, the Tribunal proceeded to make its decision on what was before it, and declined to exercise its discretion pursuant to s.362B(2) in doing so.
The Tribunal was not satisfied that the applicant met cl.5A407(a) (see further below) as the information provided to it showed that the applicant had achieved an “Overall Band Score” in his IELTS tests of 5.0. To meet this sub-clause requirement, the applicant would have needed a score of at least 5.5 ([24] – [28] at CB 69).
Further, the Tribunal was not satisfied that the applicant met cl.5A407(b) (see further below), which required that the applicant must achieve an “Overall Band Score” of at least 5 in an IELTS test taken less than two years before the making of his visa application, and that the applicant will undertake an English Language Intensive Course for Overseas Students (“ELICOS”) of no more than 30 weeks duration.
Although the Tribunal noted the information provided to it by the applicant’s representative, it was not satisfied that the applicant met cl.5A407(b)(i) in that the applicant “will” undertake a commitment in the future to complete an ELICOS before commencing his course ([29] at CB 69 – [32] at CB 70).
In addition, the Tribunal was not satisfied that the applicant was fully funded and therefore did not meet cl.5A407(c) ([33] at CB 70). The Tribunal went on to consider whether the applicant satisfied any other subdivisions of cl.5A407(d), and concluded that the applicant had not provided any evidence that “… one of the paragraphs in clause 5A407 applies to him.” ([40] at CB 71, see also [34] – [39] at CB 70).
It therefore affirmed the delegate’s decision ([42] at CB 71).
Application to the Court
The applicant put forward one ground for review:
“The tribunal found that the applicant who had applied student (Temporary) (2 years) Visa had not undertaken an ELICOS course before commencing his principal course namely a Diploma of Business. The tribunal erred in law and its Jurisdiction when it so found for the reason that within a submission provided by the applicant’s Migration Agent there was a certificate of achievement at final level issued by Navitas being a cricos provider registered number 02927C. As such the applicant submits that the course was an ELICOS course indeed having been certified by a Director of Studies (ELICOS).”
[Errors in the original.]
Before the Court
When the matter first came before the Court, on 27 June 2011, the applicant sought an adjournment on the basis that the Minister’s department (“the Department”) was, of its own initiative, entertaining the idea of requesting the Minister to intervene pursuant to s.351 of the Act, and the applicant wished to allow that intervention process to conclude.
The first respondent consented to the adjournment application and the matter was stood over to 9 December 2011 in the hope that the ministerial process would have by then concluded, and an outcome be known.
At the hearing before the Court the applicant was represented by Mr M Newman. Mr O Jones appeared for the first respondent. Written submissions were filed late by both parties. Leave was sought, and granted, for them to be filed out of time.
The applicant sought a further adjournment on the basis that the ministerial intervention process had progressed beyond intervention merely being considered, and that the process should be allowed to conclude. In support of this application a letter from the Department (Status Resolution South and West Branch) to the applicant, dated 4 August 2011, was tendered. The letter advised that “… the Department has initiated a Ministerial intervention request …”. (Applicant’s Exhibit 1 – “AE1”.)
Also tendered in support of the application was an email from the Department (Ministerial Intervention Unit – Status Resolution Branch) to the applicant’s migration agent dated 8 December 2011. The email indicated that the applicant’s health and character checks had been received and would be included in a second submission to the Minister. It stated that the Department “… would hope to have an outcome within the next few weeks …”. (Applicant’s Exhibit 2 – “AE2”.)
I understood the applicant’s submission to be that the ministerial intervention process had progressed beyond intervention merely being considered to submissions being drafted by the Department, and that an adjournment should be granted to allow that process to conclude. Particularly in light of health and character checks being completed, “second submissions” being given to the Minister shortly, and the expressed reference to the Department’s “hope” that an outcome would be known within a matter of weeks
The first respondent opposed the adjournment on the basis that ministerial intervention was supplementary to judicial review. In support of this, the first respondent drew attention to the letter from the Department which advised the applicant to “… not discontinue the application for judicial review …”. While recognising that a decision by the Minister to intervene could render this Court’s judgment moot, Mr Jones submitted that the Court process should continue as the present case posed an important question of law which could only be determined by the Court.
I raised with Mr Jones my concerns regarding the Minister’s position. First, in the present case, the Minister is considering intervention while the matter is before the Court. Further, unusually and importantly, the intervention was initiated by the Minister’s department, and initiated subsequent to the matter being brought before the Court. If there was an important question of law to be decided then the Minister should not have agreed to the earlier adjournment ([14] above) and should have pressed ahead with the litigation.
Second, the submission that there is a significant point of law to be heard, and decided, casts even greater doubt on the rationale of the Department initiating its own request to the Minister to intervene on the applicant’s behalf in the matter of his visa application and the Minister’s consideration of that intervention request.
Although the Department had expressed “hope” that an outcome may be known within “the next few weeks”, other than judicial note of the ministerial intervention process, there was no other evidence before the Court that established how far the matter had progressed within the Minister’s department. In the circumstances. I could not conclude that an outcome was imminent. Given that a “live” application was before the Court, it was proper to proceed. As such, the application for an adjournment was refused. I would hope that this situation did not arise due to a lack of coordination between different parts of the Minister’s department.
Relevant Regulation
In deciding to affirm the decision of the delegate to deny the applicant a subclass 572 visa, the Tribunal had regard to cl.5A407. The Tribunal noted that the delegate found that the applicant did not meet the relevant criteria “because the applicant did not have the requisite English language proficiency as specified in cl.5A407” ([24] at CB 69).
As was conceded in the respondent’s written submissions (at [7]), the Tribunal’s reference to this clause was in error. The delegate, correctly, relied on cl.5A404 (see at CB 24 to CB 26).
The Tribunal considered that before a subclass 572 visa can be granted the Minister’s delegate must be satisfied that the applicant has undertaken an ELICOS following the “… assessment level to which the application is subject …” (cl.572.223(2)(a)(i) of the Regulations). The assessment level that is applicable to an applicant for a subclass 572 student visa is set out in Gazette Notice IMMI 08/051, which provides that a Nepalese passport holder is assessed with reference to “assessment level 4”. The assessment level is contained in Div. 2, Pt. 4 of Sch. 5A to the Regulations, specifically cl.5A404.
The Tribunal found that the applicant held “…an eligible passport of Nepal” ([22] at CB 69), but then went on to find that the application was subject to consideration under assessment level 3 and turned its mind to cl.5A407 ([22] – [23] at CB 69).
The Tribunal’s reliance on cl.5A407 when determining the application reveals an error of law in that it relied on the wrong legislation.
However, not all errors of law will result in the Court finding a jurisdictional error (Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473 at 481 [35] per McHugh J). Rather, the Court must consider the exercise of its discretion and determine whether the error of law constitutes jurisdictional error and vitiates the Tribunal’s decision (Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; [2001] 206 CLR 323; (2001) 180 ALR). This is so in circumstance where the relief sought by the applicant is discretionary.
Clause 5A407 requires that the applicant “…. will undertake an ELICOS of no more than 30 weeks duration”, while cl.5A404 requires that the applicant “… will undertake an ELICOS of no more than 20 weeks duration”. In all but this regard the clauses are identical.
In my view, since the Tribunal’s decision in this case did not turn on the duration of the ELICOS to be undertaken, but rather turned upon the point of time when the ELICOS should have been taken, the above difference between the clauses does not alter or affect, nor would it have affected, the decision the Tribunal made.
The first respondent submitted that, given the lack of material difference between cl.5A404 and cl.5A407, the Tribunal’s error did not lead to a jurisdictional error. I understood Mr Jones’ submission to be that the outcome for the applicant would not be altered by the Tribunal considering the matter afresh and with regard to the correct statutory clause, and thus the decision should not be quashed on the sole basis of this legal error.
In oral submissions Mr Newman conceded that the two clauses were, in their essential nature with regard to the current case, the same.
In these circumstances, I declined to grant the application on the basis of the error at law. I should just note that, although the clauses do not materially differ, for the sake of accuracy, I have referred to cl.5A404 below.
The Grounds of the Application
The applicant’s ground asserts that the Tribunal erred in finding that “… the applicant will not undertake an ELICOS course before commencing his principal course” ([27] at CB 69). The applicant argued that since an ELICOS had been completed by him only some six weeks before the Tribunal hearing, he had met the requirement to undertake an ELICOS prior to the commencement of his primary course, and thus the Tribunal erred in finding otherwise.
The issue in the proceedings turns on the meaning of cl.5A404(b)(i):
“… (b) the applicant:
(i) will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course; and …”
That is, what is the effect of the word “will” in this regulation.
Clause 5A404 provides the evidentiary requirements for student visas, specifically the English language proficiency for assessment level four. The most relevant parts of the requirement, for these proceedings, are cl.5A404(a) and (b), which state:
“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 applicant, 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 application, an Overall Band Score of at least 5.0.
… ”
Given the applicant had an IELTS test score of 5.0, which the applicant had achieved within less than two years of the date of application, the Tribunal needed to be satisfied that the applicant “will” undertake an ELICOS of no more than 20 hours. There was evidence before the Tribunal that the applicant had taken an ELICOS of no more than 20 hours in the recent past, but no evidence to allow it to conclude that the applicant would undertake an ELICOS in the future.
In short, Mr Newman’s submission was that, when regard is had to the policy relevant to this requirement, cl.5A404(b)(i) is not intended to deprive an applicant of a visa where the ELICOS requirement has already been met.
Although no specific reference to evidence was made before the Court, the argument was that the policy objective underpinning the regulation, and reflected in the regulation, was to ensure that students entering into certain substantive courses of study had a sufficient level of English proficiency and that it did not matter whether the student was about to, or had already, completed the relevant requirement in this regard.
The only policy statement put before the Court, in the applicant’s written submissions, is an extract purportedly from the Explanatory Statement for cl.5A407. Despite this not being for the applicable clause (cl.5A404), Mr Newman assured the Court in oral submissions that, like the clauses, the Explanatory Statement was in all material regards the same as that for cl.5A404.
Having regard to that statement, the purpose of the regulation is to “ensure that applicants….are genuine applicants for student visas” and to “maintain the integrity of the student visa program” (see also at [17] of the first respondent’s submissions).
As was put by the applicant in oral submissions, the maintenance of the student visa program’s integrity is contingent upon student visa recipients possessing a level of English language skill sufficient to allow them to understand, and engage with, their principal course.
There was no argument that this policy objective has not been given effect in the regulations. It requires that, in order to be granted a student visa, individuals either meet a requisite level of English (cl.5A404(a) and (b)), are fully funded (cl.5A404(c)), successfully complete a Secondary Certificate of Education (cl.5A404(d)), or meet score requirements for a test in a specific Gazette Notice (cl.5A404(e)).
Clearly, the two clauses which are relevant to the applicant’s circumstances, and which are interrelated, are cl.5A404(a) and (b). The clauses, when read together, determine the IELTS and ELICOS requirements that an applicant must satisfy in order to be granted a student visa. When the clauses are read jointly, it is clear that the purpose of the regulation is to ensure that student visa applicants are only granted a student visa if they have the requisite proficiency in English (reflected in an IELTS test score of 5.5) or, in the absence of that level, have a sufficient grasp of English (indicated by an IELTS test score of 5) and are undertaking further English language study (in the form of an ELICOS of no more than 20 weeks) prior to the commencement of their primary course.
Thus cl.5A404(b) clearly provides that an applicant who has achieved an IELTS test score of 5 must, in lieu of the additional half point required under cl.5A404(a), undertake an ELICOS of no more than 20 weeks, and that that ELICOS must be prior to their substantive study, but following their attainment of an IELTS test score of 5. Thereby ensuring that applicants, proximate to the commencement of their substantive course, endeavour to further improve their English language skills if they have not yet reached the desired level. Thus the legislative intention behind the ELICOS requirement in cl.5A404(b) is to ensure that applicants are able to fully engage in, and comprehend, their primary course.
The applicant argued that the ELICOS he had completed on 19 March 2010 was in the same year as his primary course, and a mere six weeks prior to the Tribunal’s hearing, and thus fulfilled the purpose of cl.5A404(b)(i).
However a careful examination of the timing of the applicant’s ELICOS completion and IELTS tests reveals that the applicant’s recent ELICOS was completed for the purposes of achieving an IELTS test score of 5, not in lieu of his inability to, as yet, achieve a test score of 5.5
On 14 November 2009, the applicant achieved an IELTS overall band score of 4.5, rendering him ineligible for a subclass 572 student visa. From 25 January 2010 to 19 March 2010, the applicant completed ELICOS. He subsequently completed an IELTS test on 10 April 2010, in which he achieved a band score of 5. While the ELICOS had improved the applicant’s understanding and grasp of English, as evidenced by the improvement in his IELTS score from 4.5 to 5, it had not enhanced his ability sufficiently to render further ELICOS study unnecessary, as would be evidenced by an IELTS test score of 5.5 (cl.5A404(a)). Thus, in order to satisfy the regulatory requirements, in terms of its legislative intention, the applicant was required to undertake a further ELICOS.
When understood in this way the use of the word “will” in cl.5A404(b) to denote a future action by the applicant is clear and unambiguous. It is not sufficient to just complete an ELICOS at any time as the applicant submits.
On a plain and clear reading of the regulation, therefore the meaning of “will” is unequivocal. “Will” is defined as an expression of determination (Oxford English Dictionary), in this particular case, the determination to undertake an ELICOS. The word “will”, in the context of the legislation, evinces an intention and commitment by the applicant to complete an ELICOS prior to the substantive course, but following the Tribunal’s hearing and decision.
This interpretation was adopted by Lloyd-Jones FM in Singh v Minister for Immigration [2010] FMCA 1006 where his Honour found that the applicant, having completed 75% of an ELICOS, could not meet the “time of decision criterion” that he “will” complete an ELICOS.
Although that case relates to a time of decision criterion, and while cl.5A404(2)(i) is an evidentiary requirement (rather than a criterion), the same approach can be adopted. Indeed in Minister for Immigration and Citizenship v Grant (2009) 1059 FCR 179 (“Grant”) Jagot J considered cl.485.215(c) of the Regulations, and specifically the meaning of the phrase “the applicant has made arrangements to undergo a language test”. Justice Jagot held that “… the natural and ordinary meaning of the phrase denotes a future requirement …”(at [42] of Grant).
Further, Jagot J’s approach in Grant was recently applied to cl.5A404 by Raphael FM in Patel v Minister for Immigration and Citizenship [2011] FMCA 875. In that case, his Honour said that “… the ELICOS requirement in the Regulations is a future requirement …” [emphasis added] (at [8]). His Honour found that the Tribunal did not err in rejecting an application which failed to provide any evidence that the applicant would undertake a future ELICOS despite the applicant having undertaken an ELICOS prior to the hearing before the Tribunal.
Conclusion
Thus, on a plain reading of the regulation, and when viewed through the policy objectives, the Tribunal did not err in its finding that the applicant failed to satisfy the evidentiary requirements for the grant of a subclass 572 student visa. Consequently, the applicants ground is not made out. The application to the Court should be dismissed. I will make an order accordingly.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 16 February 2012
4
2