Singh v Minister for Immigration
[2014] FCCA 2948
•19 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2948 |
| Catchwords: WORDS AND PHRASES – “will undertake”. |
| Legislation: Migration Act 1958 Migration Regulations 1994, Schedule 2, 572.223, 572.223(2)(c), Schedule 5A cl.5A404, 5A404(b)(i). |
| Patel v Minister for Immigration and Citizenship [2012] FCA 376 SZBEL v MIMIA (2006) 228 CLR 152 |
| Applicant: | MANJIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 186 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 11 December 2014 |
| Date of Last Submission: | 11 December 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 19 December 2014 |
REPRESENTATION
| The applicant appearing on his own behalf |
| Solicitor for the First Respondent: | Ms Kelly |
| Solicitors for the First Respondent: | Clayton Utz |
| The second respondent entered a submitting appearance |
ORDERS
The application filed on 3 March 2014 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 186 of 2014
| MANJIT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By his application filed on 3 March, 2014 Mr Singh seeks an order that a decision of a migration review tribunal given on 6 February, 2014 be quashed and that his application for the issue of a Student (Temporary) (subclass TU) visa be returned to a migration review tribunal to be determined according to law.
The first respondent opposes the application. The second respondent enters a submitting appearance.
Background
On 10 May, 2012 Mr Singh applied for the issue of a student visa. Given the nature of the courses that he was undertaking, his visa application fell to be assessed according to the criteria specified for subclass 572 of the student visa class.
To satisfy the criteria for a subclass 572 visa, Mr Singh was required to satisfy certain English language requirements that were set out in Schedule 5A of the Migration Regulations 1994. As the tribunal explained in its decision:
18. In the present case, as the applicant currently is enrolled in the Advanced Diploma of Business as his principal course, the subclass that may be granted is Subclass 572. The issue in the present case is whether the applicant is a ‘genuine application for entry and stay as a student’ having regard to the prescribed matters. With the exception of the student guardian visa, this is a requirement for all student visas. For Subclass 572, this requirement is contained in cl. 572.223, which is extracted in the attachment to this decision.
19. To meet this criterion, the applicant in this case must give evidence in accordance with the requirements set out in Schedule 5A to the Regulations for the highest assessment level for the applicant. Broadly speaking, these requirements relate to English language ability, financial capacity, and other prescribed matters, and differ depending upon the subclass sought and the applicant’s assessment level. Additionally, the Regulations require that the Minister is satisfied that: the applicant is a genuine student having regard to the state intention to comply with the applicable visa conditions, and any other relevant matter; and that while the applicant holds the visa he or she will have access to the funds relied upon to satisfy the Schedule 5A financial capacity requirements.
Relevantly, cl.572 provided:
572.2—Primary criteria
…
572.22—Criteria to be satisfied at time of decision
…
572.223
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.
Relevantly, Schedule 5A provided:
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;
When Mr Singh made his application for the relevant visa in May, 2012 he provided evidence that he had achieved an IELTS overall test score of 5.0 in November, 2011. He also provided evidence that he would undertake an English Language Intensive Course for Overseas Students that is a registered course (ELICOS). That was relevant to cl.5A404(b)(i) set out above. Thus, at the time that he applied for his visa, Mr Singh was able to satisfy the requirements of cl.5A404(b). Mr Singh completed the ELICOS in June, 2012 and before his application was determined by a delegate of the first respondent.
The delegate’s decision reveals that Mr Singh’s visa application was refused because he did not satisfy cl.572.223 of the Regulations in that he did not satisfy cl.572.223(2)(c) because he was unable to meet the financial capacity requirements set out in cl.5A405 of Schedule 5A to the Regulations. Contrary to Mr Singh’s assertions before me, the delegate did not determine that Mr Singh had in all other respects met the relevant criteria for the grant of the visa.
Mr Singh sought review of the delegate’s decision by a migration review tribunal.
The tribunal invited Mr Singh to attend before the tribunal to give evidence and make submissions in support of his application. The tribunal member explained to Mr Singh that he needed to be able to satisfy the relevant criteria at the time of the tribunal’s decision. As will be seen from the extract above, cl.572.223 of Schedule 2 to the Regulations must be satisfied at the time of the decision on the visa application.
The tribunal determined that Mr Singh did not satisfy the requirement of cl.5A404(b)(i) because that clause required that an applicant will undertake an ELICOS before commencing his or her principal course of study. Whilst the tribunal had accepted that Mr Singh had undertaken an English course in June, 2012 that did not, according to the tribunal, meet the requirements of cl.5A404(b)(i) because that clause required an undertaking to do something in the future rather than evidence that something had been done in the past. Specifically, the tribunal said:
25. Paragraph 5A404(b) requires that if applicant will undertake an ELICOS of no more than 20 weeks duration before commencing his principal course he must achieve an IELTS test score of at least 5.0 in a test that was taken less than 2 years before date of application. The applicant has achieved and IELTS score of 5.0 in an IELTS test undertaken in November 2011. However, there is no evidence before the Tribunal that he ‘will undertake’ and ELICOS before commencing his Advanced Diploma of Business course. The applicant argued that he has already undertaken an English course and that this was accepted by the Department. However, as explained to the applicant at hearing, he has already completed that course and cannot rely on it to meet the English requirement. Paragraph 5A404(b) requires that the applicant ‘will undertake’ an ELICOS, indicating that to satisfy this paragraph the applicant must provide evidence that he will undertake an English course in the future and before the commencement of his principal course. There is no evidence before the Tribunal that the applicant will undertake an ELICOS before commencing his principal course and the Tribunal is not satisfied that the English course completed by him in 2012 meets the requirement in paragraph 5A404(b). The applicant therefore does not meet paragraph 5A404(b).
The grounds of review
Mr Singh’s grounds of review are set out in his application as follows:
MRT refused my review application stating that I don’t satisfy cl.572.223(2)(a). Member asked himself question that at the time of decision cl.572.223(2)(a) states that applicant should satisfy Schedule 5A requirement in specific 5A404. 5A404(b) clearly states the applicant : 1. Will undergo an ELICOS of no more than 20 weeks duration before commencing his/her principal course, and 2. achieved in an IELTS test that was taken less than two years before the date of application, an overall band score of atleast 5.0. Point to be noted is 5A404 which is English requirement is considered in relation to time of application criteria. When I applied for student visa at that time I did have overall band score of 5.0 and underwent ELICOS before studying my principal course Diploma of Management. Officer of Department of immigration and border protection was satisfied with my English requirement and refused my visa on based of financial requirement. Tribunal member asked himself a wrong question and failed to put weight on fact that at time of my visa application I had IELTS score of 5.0 overall and finished ELICOS before starting Diploma of business. I had already finished my diploma of business course before MRT opened my review application and commenced certificate 4 course and later advance Diploma. Tribunal member failed to realise fact that even if the member considers any course as my primary course I had finished studying ELICOS and satisfied 5A404(b) requirement. Member interpreted law wrongfully and according to member 1 have to repeat same English course again and again before any kind of course in Australia I am going to study. There is clearly “Jurisdictional error” in Tribunal’s decision.
(faithfully reproduced, my emphasis)
The gravamen of Mr Singh’s argument is the sentence I have emphasised above. He contends that the relevant criterion is one which needs to be satisfied at the time of the visa application, whereas the tribunal treated it as one that needed to be satisfied at the time of the decision on the application.
Whilst Mr Singh’s suggestion would make more sense, cl.572.223 clearly contains time of decision criteria, not time of application criteria.
The first respondent submits that Mr Singh’s grounds of review raise two matters, namely:
a)That the tribunal considered different grounds to the Minister’s delegate and made its decision on the basis of a failure to meet an English language requirement rather than a failure to meet a financial capacity requirement; and/or
b)The tribunal made an error in deciding that he failed to meet the relevant English language requirements.
It is clearly the case that the tribunal is not bound in its review to consider the same issues as the delegate: SZBEL v MIMIA (2006) 228 CLR 152. It is clearly the case that a failure to do so is not a jurisdictional error and as the tribunal explained to the applicant in the hearing invitation letter of 4 November, 2013 and at the hearing, his ability to meet all of the relevant visa criteria was at issue. He needed to be able to satisfy the tribunal about all of those matters.
As to the second matter, the first respondent directed my attention to the decision in Patel v Minister for Immigration and Citizenship [2012] FCA 376. In that case, Siopis J was faced with an application not dissimilar to Mr Singh’s application. Factually, the two cases are slightly different in that Mrs Patel had completed her ELICOS before she made her application for the relevant student visa. It will be recalled that Mr Singh completed his ELICOS after he applied for the visa and before the delegate’s decision.
In Patel, the applicant argued that having completed an ELICOS, she was able to satisfy the relevant requirements of cl.5A404(b) notwithstanding that that clause used the words will undertake when speaking of an ELICOS. As to that argument Siopis J said at [24]:
This clause requires a visa applicant with an overall band score of 5.0 on the IELTS test, to provide evidence that he or she “will undertake” the relevant ELICOS course. It does not, therefore, avail the visa applicant to provide evidence that he or she has already undertaken such a course. The rationale for this sequence is somewhat elusive, but the construction of the requirement is clear, and Mrs Patel did not satisfy the requirement.
With respect, I agree with Siopis J’s observation that the rationale for the sequence according to which an applicant for a student visa must undertake an ELICOS is elusive. In this case, at the time the visa application was made, Mr Singh met the requirements of cl.5A404(b). It seems to be the case that he thereafter deprived himself of any prospect of succeeding in his visa application by completing his proposed ELICOS before a decision had been made on his visa application. Although the delegate did not turn his or her mind to that matter (having determined the visa application failed according to other grounds) it was the very ground upon which the tribunal determined the application against Mr Singh. As I have said above, to treat the relevant criterion as a time of application criterion would make more sense. But, cl.572.22 is clear in that it is a time of decision criterion.
That Mr Singh could deprive himself of success in respect of his visa application by diligently applying himself to completion of the relevant ELICOS before a decision was made on his visa application is an uncomfortable conclusion. Nonetheless, I am satisfied that it is the conclusion to which I must arrive having regard to the terms of cl.5A404(b) and the decision in Patel.
For those reasons, the application filed on 3 March, 2014 must be dismissed with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 19 December, 2014.
Associate:
Date: 19 December 2014
3
3
3