FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1149 |
| MIGRATION – Subclass 572 – student visa – whether certificate of enrolment in a course of study required current enrolment at time of decision – statutory interpretation – literal or purposive approach – section 359A – whether information provided by applicant – whether “lack of information” covered by s.359A. |
| Migration Act 1958 (Cth), ss.65, 357A, 359, 474 Migration Regulations 1994, rr.1.03, 1.40A, sch.2 Acts Interpretation Act 1901, ss.13, 15AA, 15AB, cl.13 |
| Applicant: | KIRPAL SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 849 of 2009 |
| Judgment of: | Turner FM |
| Hearing date: | 8 October 2009 |
| Date of Last Submission: | 8 October 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 10 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hughan |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondents: | Mr Felman |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
That the application filed 8 July 2009 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 849 of 2009
| KIRPAL SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant has been refused…
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Details
- AGLC
- Singh v MIAC [2009] FMCA 1149
- Case
- [2009] FMCA 1149
- Decision Date
CaseChat Overview and Summary
In the case of Singh v MIAC, the central issue before the court was whether a current Certificate of Enrolment (CoE) was necessary at the time of a visa decision under clause 572.222 of the Migration Regulations 1994. The applicant, represented by Mr Hughan, argued that a current CoE was not required, whereas Mr Felman, representing the Minister for Immigration and Citizenship (MIAC), contended that such a requirement was necessary to ensure that an applicant was genuinely enrolled in a full-time course of study at the time of the decision. The court had to determine the correct interpretation of the regulation, particularly in light of the legislative framework and the purpose behind the regulation.
The legal issues the court needed to decide included whether clause 572.222 of the Migration Regulations required a current CoE at the time of the visa decision and whether the regulation could be interpreted in a way that would allow for reliance on an expired CoE. The court considered the explanatory statements and purposes behind the regulation, as well as the relevant legislative provisions such as section 15AB of the Acts Interpretation Act 1901. It also examined the precedent set by previous cases like Quarm v Minister for Immigration and Citizenship and Anor and Re Minister for Immigration and Multicultural Affairs: Ex parte Cohen.
The court ultimately concluded that clause 572.222 required a current CoE at the time of the visa decision to ensure that the applicant was genuinely enrolled in a full-time course of study. The court rejected the argument that an expired CoE could suffice, reasoning that this would undermine the purpose of the regulation. The court found that the requirement of a current CoE was a matter of law, not fact, and thus distinguishable from cases like Quarm. The explanatory statements and the purpose of the regulation, as outlined in the Explanatory Memorandum of Statutory Rules 2001 No 162, supported the need for a current CoE. The court thus found that the Tribunal's decision requiring a current CoE was correct and dismissed the application.
ORDERS:
1. That the application filed 8 July 2009 is dismissed.
The legal issues the court needed to decide included whether clause 572.222 of the Migration Regulations required a current CoE at the time of the visa decision and whether the regulation could be interpreted in a way that would allow for reliance on an expired CoE. The court considered the explanatory statements and purposes behind the regulation, as well as the relevant legislative provisions such as section 15AB of the Acts Interpretation Act 1901. It also examined the precedent set by previous cases like Quarm v Minister for Immigration and Citizenship and Anor and Re Minister for Immigration and Multicultural Affairs: Ex parte Cohen.
The court ultimately concluded that clause 572.222 required a current CoE at the time of the visa decision to ensure that the applicant was genuinely enrolled in a full-time course of study. The court rejected the argument that an expired CoE could suffice, reasoning that this would undermine the purpose of the regulation. The court found that the requirement of a current CoE was a matter of law, not fact, and thus distinguishable from cases like Quarm. The explanatory statements and the purpose of the regulation, as outlined in the Explanatory Memorandum of Statutory Rules 2001 No 162, supported the need for a current CoE. The court thus found that the Tribunal's decision requiring a current CoE was correct and dismissed the application.
ORDERS:
1. That the application filed 8 July 2009 is dismissed.
Orders
Orders of the court
1.
That the application filed 8 July 2009 is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Mr Felman argues, and the Court accepts, that s.15AB of the Acts Interpretation Act 1901, allows the Court to have regard to extrinsic material in interpreting an Act. He refers to the Explanatory Statement to the amendments that introduced .222. Under the heading “New Clause 572.222” it is stated that “The purpose is to ensure that an applicant provides evidence that he or she is enrolled in a full-time course of study.” (emphasis added)The Court accepts that the provision requires evidence to be provided that the applicant is enrolled at the time of decision. The Court accepts the submission that to accept that an applicant can rely on an expired CoE at the time of decision would defeat the purpose of .222. The Court asks itself “If that was allowed, why would the applicant need a student visa when he had no course to study?” The Explanatory Statement to the amendment refers to the changes being to “better target those markets that attract genuine overseas students”See also cls.572.221(2)(b)(i)(A); 572.223(1); 572.223(2)(a)(ii). Without proof at the time of decision that the applicant is enrolled, or is the subject of an offer of enrolment, genuineness cannot be proved. Mr Felman agues that the decision in Quarm (supra) does not support the applicant’s argument here, as in Quarm the Minister had to look back to ascertain if a qualification had been obtained, whereas in the present case the Minister has to be satisfied that an applicant is enrolled, or has an offer of enrolment, in a full-time course of study. The Court finds that Quarm does not support the applicant. Mr Felman submits that if his primary submission is not accepted, the decision of the Tribunal requiring a current CoE is an error of fact, not of law. The Court rejects that submission. In Re Minister for Immigration and Multicultural Affairs: Ex parte Cohen (2001) 177 ACR 473 the question was whether the person had a disability, which is a question of fact, whereas here the question is whether .222 requires there to be a current CoE at the date of decision. The issue here is a question of law. The cases are distinguishable. The Court finds cl.572.231 to be clear; at the time of decision the applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study. Giving cl.572.222 a literal construction contended for by Mr Hughan would be in conflict with the clearly stated meaning and purpose in cl.572.231, and not facilitate an assessment under reg.1.40A. The Court refers to the Explanatory Memorandum of Statutory Rules 2001 No 162 that includes the following statement:The purpose of new subclause 572.222 is to ensure that an applicant provides evidence that he or she is enrolled, by producing a certificate of enrolment, in a full-time course of study or training that is not a suspended education provider. (emphasis added).222 is a time of decision requirement, to “ensure that the applicant provides evidence that he or she is enrolled…in a full-time course of study” (emphasis added).Section 65 provides for the Minister to grant a visa, if satisfied that the criteria for a visa are met. The criteria referred to are those in force when the Minister makes his decision Quarm v Minister for Immigration and Citizenship and Anor (2008) 171 FCR 307 at [27].
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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