SINGH v Minister for Immigration
[2011] FMCA 908
•10 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 908 |
| MIGRATION – Review of Migration Review Tribunal – student visa – application dismissed. |
| Migration Regulations 1994 (Cth), Sch. 2 Cl. 572.223, Sch. 5 |
| Applicant: | KANWERDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 922 of 2011 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 10 November 2011 |
| Date of Last Submission: | 10 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 10 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson of Counsel |
| Solicitors for the Applicant: | The applicant in person. |
| Counsel for the First Respondent: | Ms Latif of Counsel |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application for review filed 4 July 2011 and the amended application filed 3 October 2011 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 922 of 2011
| KANWERDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Amended Judgment)
The applicant in this application applied for a student visa and he sought to undertake a course at a private college. At the time of making application for the visa he did not identify the course that he intended to undertake. He did indicate that he expected it to run from October 2010 but he did not set out a finish date for any course that he expected to take. He had previously undertaken a diploma in hospitality management between June 2009 and March 2010 and before that a Certificate III in cookery (at the same college) between April 2008 and May 2009. It appears that shortly before his hearing he obtained a letter of offer to undertake a diploma of management, again at the same private college in Victoria.
The relevant visa conditions to the decision in this case are set out in clause 572.223 which is in the following terms:
(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 the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter; and
(iii) 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; or
(b) for an applicant who is a person designated under regulation 2.07AO – the Minister is satisfied that:
(i) the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant has access to sufficient funds of the person’s own or provided by a relative; and
(ii) the applicant’s proficiency in English is appropriate to the proposed cause of study; and
(iii) the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter.
The issues in this relate to the operation of clause 572.223(2)(a)(i) and also (2)(a)(ii).
Ground 1
In support of ground 1 it is argued by the applicant that the Tribunal incorrectly interpreted Schedule 5A as engaged by clause 572.223(2)(a)(i). The schedule, as referred to in the clause, sets out a number of different levels that persons may fall within dependent upon the country from which they travelled to Australia to study. There is no issue in this case that the applicant fell within level 4 and that, therefore, the relevant clause in the schedule is clause 5A405.
It provides relevantly:
5A405 Financial capacity
(1)The applicant must give, in accordance with this clause:
(a)evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 36 months:
(i)course fees;
(ii) living costs;
(iii) school costs; and
(aa)a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 36 months; and
(b) evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and
(c) evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.
The issue that was argued in this case is how the clause is meant to operate, if it operates at all, when a person is undertaking a course for a period of less than 36 months.
In this case, the applicant was undertaking a course of only 12 months duration.
It appears to me that when one reads clause 5A405 one must immediately return to clause 572.223 to understand what the reference to the first 36 months is about. It is the engaging clause that makes it clear that clause 5A405, when referring to the first 36 months, is referring to the first 36 months of the relevant visa. In this case the visa, it seems, would have been slightly longer than 12 months as it the practice of the Minister to give people a little extra time at the end of their course, presumably to pack up and move or fulfil any supplementary examinations or other requirements.
In the decision the Tribunal member, when assessing costs, looked at a period of 14 months, still well less than 36 months. To my mind an ordinary meaning to be given to the clause would be for the first 36 months of any visa longer than 36 months. If the visa proposed were to be less than 36 months, the clause is clearly intended to apply to the whole of the period but not to require costs to be the subject of evidence for greater than the actual period of the visa because the first 36 months of the visa would be a period far less and there would, in fact, be no course fees, living costs or school costs after a person returned to their country of origin in any event on expiration of their visa.
I note the argument that clause 5A405(1)(aa) provides for a declaration from the applicant stating that they have access to funds sufficient to meet the various expenses for the remainder of their proposed stay after the first 36 months. Clearly this is aimed at courses that are longer than 36 months, just as is provided in Schedule 5A for other levels of applicant: depending upon their country of origin applicants may only have to show evidence of finances for 12 or 24 months and make a declaration for the balance of the period (see the corresponding provisions, 5A 408 and 5A 411).
However, the clause is not to be interpreted in isolation. There is a definition provision at 5A 101, which sets out a number of different definitions, the relevant one being the definition of “first 36 months,” which is as follows:
first 36 months , for an applicant, means the period that:
(a) begins:
(i) if the application is made outside Australia -- on the day of the applicant's expected arrival in Australia; or
(ii) if the application is made in Australia -- on the day that the student visa is expected to be granted to the applicant; and
(b) ends on the earlier of the following:
(i) the day 36 months after the beginning of the period;
(ii) the last day of the applicant's proposed stay in Australia.
It appears to me that the definition section makes clear when the period, “first 36 months”, commences and when it ends. Parliament can, of course, deem a phrase or words to mean anything that it chooses. The defined definition need not accord with ordinary usage or indeed usage as one could determine from a dictionary. In this case parliament has defined, “first 36 months”, to mean a period that ends on the earlier of the 36 months or the last day of a person’s proposed stay. That appears to cover entirely the same ground that I would have read into the provision on an ordinary reading, but makes it abundantly clear that the phrase, “first 36 months,” as used in the provision, is intended to cover the period of stay up to the time that the person leaves the country or, if they are still here on that visa after 36 months, only the first 36 months thereof.
The Tribunal approached the matter on this basis, as is clear from their decision. Therefore I am of the view that the applicant has not established an error of law on the part of the Tribunal in approaching the case on the basis in which it did. I therefore refuse this ground.
Ground 2
The second ground, which can only allow the applicant to succeed in the case as a whole if he also succeeds on the first ground, relates to the application of clause 572.223(2)(a)(ii). As I have refused the first ground, the applicant can not ultimately succeed today before me, even if he were to succeed on this ground. However, it is appropriate that I proceed to make a determination on this ground as it may be that there is an appeal with respect to the first ground. I, therefore, turn to deal with this ground.
The relevant passage of the Tribunal’s reasons, in this respect, are set out at paragraphs 41 to 43 of their decision which are in the following terms:
[41] Further, the Tribunal must also be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and any other relevant matter.
[42] The Tribunal has considered whether the applicant is a genuine applicant to remain in Australia as a student. In addition to confirming that he has not studied for more a period of around 14 months and only obtained the CoE for the current course on his way to the Tribunal hearing; the applicant clearly stated that after completing his course in March 2010, his intention was to apply for a different type of visa and only when he calculated that he would not meet the requirements for another visa, he applied for a further student visa.
[43] On the basis of the above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student within the terms of cl.572.223(2)(a)(ii).
The applicant’s counsel argued with some detail that the Tribunal had erred either in:
a)focussing entirely upon the past conduct of the applicant rather than the question of the applicant’s intention to comply with the conditions of the visa; and
b)not ensuring that the applicant was aware that this was a real issue at the hearing.
If one simply reads the delegate’s decision and the Tribunal’s decision, there appears to be a prima facia argument in this regard. The delegate did not deal with this aspect of the matter in any detail and the Tribunal member does not discuss in detail the actual course of the hearing.
The fact this is not addressed in the decision is not of itself an error by the decision maker, indeed, in the interests of brevity in decision writing, it is good that they do not set out in summary form the entirety of the evidence and discussions throughout a hearing. This is why it has been important in this case to turn to the transcript of the hearing before the Tribunal member in order to read the interactions that occurred to determine if procedural fairness was effected by the applicant being made aware of this issue and, then, also to turn back to the decision to determine if the tribunal had erred in its interpretation or application of the relevant clause.
Dealing, firstly, with the transcript in the matter, it seems to me that there are a number of passages that make clear that there was no doubt that the applicant ought to have been aware that this was a real issue before the Tribunal member in this matter. For example, the Tribunal member says:
Mr [H]: Okay, well that’s the point, you see. The fact that you were refused a visa does not mean that you can’t continue your studies. Because you did not have a condition that restricted you from studying. The point is, one of the regulations here – well, let’s deal with the finances first. You still don’t have evidence of finance. You haven’t provided me with any evidence of finance, that you have the financial capacity – that you have access to the necessary funds. I still don’t have it. All right? Correct? Now, another issue that arises here is whether you’re a genuine student or not, Mr Singh.
You told me that after your course in March 2010, you had an intention to apply for temporary residence or permanent residence, a visa that is not a student visa. And you were preparing to sit an IELTS test for the purpose of that other visa. But you weren’t successful in getting the six, the score of six which you say – you had been informed or you became aware that you need a score of six for this other visa or visas. And then, when you found you were not successful, you applied for a further student visa in August, and you still haven’t been doing anything in the way of study. You haven’t been studying since March last year as a student. So one of the requirements, whether or not you provide the financial document, which you haven’t, is that the minister is satisfied that the applicant is a genuine applicant for entry and stay as a student.
Now, when you’ve been here more than 12 months and not studying, it’s difficult to come to the conclusion that you are a genuine applicant for entry and stay as a student. It would appear that you’ve gone, today, on the day of the hearing, and quickly acquired a confirmation of enrolment just to show that you intend to study. But you haven’t really been studying. You haven’t been enrolled in anything since March 2010. That’s a long time. If you come here to Australia as an international student, and you remain for a period of more than 12 months without undertaking any studies, it’s difficult to come to the conclusion that you’re a genuine applicant for entry and stay as a student. …
…
Mr [H]: Well, you may have completed your studies earlier than was anticipated when your first visa was granted to, which expired in September. It really doesn’t mean that you can just stay and not study. Insofar as – if I have to consider whether you’re here as a genuine student, this long gap suggests you’re not a genuine applicant as a student. In addition, you haven’t provided any financial documents. You’ve been aware of that issue since August last year.
…
Mr [H]: But that’s – I mean, that’s not the concern of the tribunal, except what goes on between you and your migration agent, your representative. The point is, from where I look at it, you’ve had the opportunity to consult somebody who’s a registered migration agent. You’ve had sufficient correspondence to tell you what is necessary to provide, which you haven’t provided. Until it’s pushed to the point of the hearing, you go and obtain this confirmation of enrolment about and hour and a half before the commencement of the hearing to show me that you intend to study. Until this time, you had done nothing to demonstrate that you’re a genuine student since March last year. And you still haven’t provided, importantly, the evidence that you have access to funds since last year. And you say to me, “No, give me 28 days and I will return it.” I’m not really inclined to say, “Well, okay, here’s another 28 days. Go and get the evidence that you have access to f[u]nds.”
There are additional passages but there is no need to set out all of them. I am of the view that it was certainly made clear that this was a real issue at the Tribunal hearing and that there is not a difficulty with respect to procedural fairness in this case.
The applicant’s argument, it appears to me, places an undue emphasis on subclause (A):
(A)The stated intention of the applicant to comply with any conditions and an assessment of whether the applicant would comply with the conditions;
– as opposed to what, in my view, is the real focus of the clause which is whether or not the applicant is:
A genuine applicant … as a student.
That is, whether the applicant is applying for this visa for the genuine purpose of being able to undertake studies in Australia, or not. The subclauses then provide for matters that the Tribunal should consider. That is, the stated intention to comply with any conditions and any other relevant matter. The Tribunal, in this case, did set out a number of other relevant matters in its reasons quoted above. When one looks at the matter as a whole and the facts that they referred to, one could not conclude that the matters were not relevant matters within the meaning of the clause, nor that there were any significant matters that were relevant under that clause that the Tribunal member ignored.
The Tribunal member then formed a view on the material before them which is set out in the quote above. It appears to me that not only is this not a case where one could point to relevant matters being ignored or irrelevant matters being taken into account, but that the finding of the Tribunal was well within the ambit of the findings open to it under that particular subclause on the facts of this particular case. In these circumstances, I find that the applicant can not succeed on this ground either.
In the circumstances, I, therefore, refuse the application for review.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Riethmuller FM.
Date: 25 November 2011
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