Sok v MIMIA
[2005] FMCA 190
•4 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SOK v MINISTER FOR IMMIGRATION | [2005] FMCA 190 |
| MIGRATION – Review of Migration Review Tribunal decision – child visa – meaning of ‘full time course of study’ – meaning of ‘reasonable time’ – relevance of courses done after schooling completed but before full time course of study – regulation 101.213. |
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Bidjara Aboriginal Housing & Land Co Ltd v Indigenous Land Corporation [2001] FCA 138
Cosgrove v Cosgrove (1996) FLC 92-700
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Thornton v The Repatriation Commission (1981) 52 FLR 285 at 292
| Applicant: | HUN CHEA SOK |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1227 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 24 January 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 4 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hurley |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondent: | Ms Costello |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That a writ of certiorari issue, quashing the decision of the Migration Review Tribunal of 16 June 2004 (V03/03417).
That a writ of mandamus issue requiring a different member of the Migration Review Tribunal to hear and determine the application according to law.
The respondent do pay the applicant’s costs fixed in the sum of $6,592.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1227 of 2004
| HUN CHEA SOK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Migration Review Tribunal (the ‘MRT’) on 16 June 2004 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant the applicant a Child (Migrant) (Class AH) visa (the ‘visa’).
Background
The applicant is a citizen of Cambodia. He lodged an application for a child visa with the Department of Immigration and Multicultural Affairs on the 7 April 2003, having previously made unsuccessful applications.
The applicant is the second eldest of 6 siblings, the youngest 4 of which were granted child visas when his mother was granted a visa.
On 8 April 2003, a delegate of the Minister refused to grant the applicant a child visa. The applicant’s mother applied for review of that decision by the MRT on 13 May 2003.
In the decision made by the Tribunal on 16 June 2004, the Tribunal affirmed the decision of the delegate not to grant the Child visa.
The relevant findings of the MRT were to the effect that:
a)The visa applicant was ‘substantially reliant on the review applicant [his mother] for financial support to meet his basic needs for food, shelter and clothing’ and as such the requirements of clause 101.211 were met (paragraph 38).
b)The MRT review applicant was the holder of an Australian permanent visa when the application was made and continued to be usually resident in Australia and as such the requirements of clause 101.212 were met (paragraph 40).
c)The requirements of clause 101.13 were not met because the visa applicant had not ‘within a reasonable time after completing his secondary schooling, undertaken a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification’ as required by paragraph 101.213(c) (paragraph 42).
On 16 July 2004 the applicant lodged an application in the Federal Court seeking a Constitutional Writ to quash the decision of the MRT. The application was remitted to the Federal Magistrates Court by Gray J on the 6 September 2004.
The grounds of the application are that ‘the MRT made an error of law which caused itself to ask the wrong question, to rely on irrelevant material, to make erroneous finding and/or to reach a mistaken conclusion, and the Tribunal’s purported exercise of power was thereby affected’.
By way of particulars, the applicant relied upon the following at the hearing:
a)That the Tribunal misinterpreted paragraph 101.213(c) of the Second Schedule of the Migration Regulations.
b)The MRT erred in law in failing to construe Cl 101.213 (1)(c) of the Migration Regulations (1994) Schedule 2 according to its purpose and failing to construe the paragraph as identifying persons who were as matter of substance engaged in fulltime study leading to the award of qualification and thereby failing to find the Applicant satisfied this criterion.
c)The MRT erred in law in construing the reference in Cl 101.213(1)(c) to “an educational institute” as excluding a person undertaking a fulltime course of study at more than one educational institute either simultaneously or sequentially or both.
At the hearing of the matter Counsel for the applicant only pursued two points:
a)whether or not the course of study undertaken by the applicant during the period after he completed his secondary schooling (equivalent) and before he commenced his course at the Institute of Technology and Management, was a course of study within the meaning of the Regulations; and
b)if not, whether the applicant had commenced a course of study within a ‘reasonable time’ after completing his secondary schooling’.
It is appropriate that I set out the terms of the relevant regulation. Regulation 101.213 provides 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.
(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.
There appears to be no case decided in the Federal Court or Federal Magistrates Court that considers this provision.
In this case the MRT made the following findings relevant to the issue:
26. Asked to describe the visa applicant’s educational pursuits since completing his secondary schooling in 2000 at the age of 20, the review applicant said that on leaving school, he had immediately enrolled in English language classes from 17.30 to 18.30 weekdays, computer classes from 07.00 to 12.00 weekdays and Chinese language classes from 13.00 to 16.45 weekdays.
27. The visa applicant informed the Tribunal that he completed his secondary schooling in 1999 as a 20 year-old. He had then studied Chinese and English fill-time for two years, before commencing a computer course at a college in 2002. This was a time-limited award course, he said, that was scheduled to finish in 2006. The Tribunal asked what he would d if he were granted a visa to travel to Australia. He said the in that event, he would transfer to a comparable course of study in Australia.
…
42. The Tribunal accepts that the visa applicant was born on 16 October 1979 and that he was therefore aged 23 years at time of application. The Tribunal also accepts the visa applicant’s assurances that he is not and has never been married, and is not engaged. It has received no evidence to suggest that he is engaged in fill-time work since he completed his secondary schooling in 1999 at the age of 20 years. However, he claims that on completing that schooling, he attended several part-time courses of study (in computing, Chinese and English) concurrently for about two years before enrolling in his present full-time award course at the Institute of Technology and Management in Phnom Penh in 2002. The Tribunal concludes that whilst the visa applicant may be argued to have been, cumulatively and effectively, engaged in full-time study, he was clearly not engaged in “…a full-time vocational qualification”, as required by paragraph 101.213(c). Nor does the Tribunal accept that the two years or thereabouts that elapsed between his completing his secondary schooling and commencing full-time study in 2002 constitutes a “reasonable period” of time within the meaning of paragraph 101.213 of Schedule 2. Having failed to meet one of the essential criteria for the grant of a visa, the Tribunal need not consider any of the remaining criteria.
On behalf of the applicant Counsel also relied upon a passage which appears in the transcript of the hearing before the MRT. At page 13 of that transcript the following exchange takes place:
MR YOUNG: Mr Tang, thank you for that. I just want to ask you a couple of questions about your application and about your background. When did you finish your secondary schooling?
INTERPRETER: 1999.
MR YOUNG: How old were you?
INTERPRETER: 20.
MR YOUNG: Right. Then what did you do?
INTERPRETER: I studied language, Chinese and English.
MR YOUNG: Anything else?
INTERPRETER: These two language full-time.
MR YOUNG: Right. So when you left school you went in to learn the English language and Chinese language on a full-time basis. Yes?
INTERPRETER: I start Cambodian - I’m not very clear. Can I ask another point?
MR YOUNG: Sure.
INTERPRETER: I start college.
MR YOUNG: Studying what?
INTERPRETER: Computer.
MR YOUNG: Okay. But between 1999 and 2002, when you started your computer course, what did you do?
INTERPRETER: When I finished secondary school in 1999, I had to learn the language first before I can start the computer course at college.
MR YOUNG: How long did this foreign language course, or these foreign language courses, go for? How long did they last, how many years, months?
INTERPRETER: More than two years.
MR YOUNG: So you’ve completed them now, have you?
INTERPRETER: Finished, but continue on. So when you finish one level, you start another level but continue on, yes.
MR YOUNG: Right, okay. So in 2002 you enrolled in a college computer course. How tong does that course go for?
INTERPRETER: Four years.
Regulation 101.213(1)(c) appears to contemplate a single full time course of study at a specific educational institution leading to an award of a qualification. To read this clause, all of the parts of which are in the singular, as including multiple courses of study appears to me to be beyond the clear terms of the regulation.
Meaning of course of study under regulation 101.213(1)(c)
The regulation looks to a particular course of study at an educational institution, such as a degree or technical college qualification (for example a qualification as a draftsman). The clause may well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions (in much the same way as one can obtain credits for some subjects towards a university degree by undertaking subjects at alternative institutions). The facts in this case do not reach this point. In the circumstances I find no error of law in the way in which the MRT has interpreted this clause.
Meaning of reasonable time under regulation 101.213(1)(c)
The question of what constitutes a ‘reasonable time’ within the meaning of the clause is more difficult. In order to properly determine whether the period that has passed is a ‘reasonable time’ the MRT must necessarily identify the relevant considerations and take them into account, placing the appropriate weight upon each of those considerations. The MRT must consider all of the relevant considerations and ought not to take into account irrelevant considerations.
In this case the MRT has not identified any factors that it took into account, simply limiting itself to the period of time (two years or thereabouts), and considering no other factor.
In determining what period of time would be reasonable one must necessarily consider the following factors:
a)the actual period of time involved;
b)what activities if any were undertaken during that period of time;
c)the purpose for which those activities were undertaken; and
d)if no activities connected with the ultimate course of study were undertaken the reason for not undertaking activities related to the course of study.
This analysis is entirely consistent with the guidelines published by the Minister and tendered by the applicant which relevantly provides:
Policy background
A child who turns 18 is considered, prima facie, to be independent. If a child progresses to further studies after secondary schooling, it is generally accepted that the child is still dependent on the parent and dependence has not been terminated.
This concept is also contained in various State and Commonwealth law., If the child has been a full-time student continuously since the age of 18 (even if post-secondary studies were commenced before that time) they will meet this requirement.
If not studying at 18
To cater for the situation where the child became a full-time student sometime after turning l8 - for example, because they started secondary school later than normal - a child will also satisfy this criterion if they commenced post-secondary studies within 6 months of (or a reasonable time after) completing secondary school.
Six months is considered a reasonable time for the child to have made the decision to undertake further study. For periods longer than six months officers should consider carefully why the decision to study was deferred and whether the applicant remained dependent on their parent during that time.
Military service
A break in studies due to compulsory military service may be considered reasonable, provided the applicant immediately resumed the studies that had been suspended.
Examples of circumstances that may justify a finding that periods of time beyond six months would be reasonable within the meaning of the clause include: a young person undertaking a one year exchange student program in another country, living and working in another country; (particularly if their ultimate studies involved fluency in foreign language spoken in that country); civil unrest interrupting studies; illness; and military service.
All of these examples show the need to approach the task in the manner I have described in paragraph 19 above. To look only to the period of time and not the surrounding circumstances would create absurd results.
In order to determine the weight to be placed on a particular reason for the time period being considered, the meaning of the term ‘reasonable’ must be seen in the context of the legislative scheme. This visa condition, read in the context of the legislation, clearly contemplates respecting reasonable ongoing support that parents may provide to enable young adult offspring to complete their education or training.
A similar community value is reflected in s.66L of the Family Law Act1975.
The condition contemplates the extent to which it is reasonable for a parent to support a child until they obtain a ‘professional trade or vocational qualification’ and, ipso facto, are able to support themselves.
In the context of this case consideration must be given to courses taken after school in order to prepare for the vocational course ultimately pursued. Whether the time is reasonable will ultimately depend upon whether a reasonable person, when considering all of the circumstances would consider the time reasonable. If the period of time were as a result of capriciousness, neglect or perversity it would not be reasonable: see Thornton v The Repatriation Commission (1981) 52 FLR 285 at 292 and Bidjara Aboriginal Housing & Land Co Ltd v Indigenous Land Corporation [2001] FCA 138.
In this case the MRT does not appear to have taken into account the purpose for which the part time courses were undertaken. The MRT has not made a finding of fact as to whether or not it accepts or rejects the applicant’s claim that he had to learn another language before he could start the computer course. These are significant relevant factors in this case.
It is clear that not every failure of a tribunal to consider a relevant consideration would justify judicial review: In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Mason J says:
15…(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision (see, for example, the various expressions in Baldwin & Francis Ltd v. Patents Appeal Tribunal (1959) AC 663, at p 693;Hanks v.Minister of Housing and Local Government (1963) 1 QB 999, at p 1020; Reg. v. Chief Registrar of Friendly Societies; Ex parte New Cross Building Society (1984) QB 227, at p 260). A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision (Reg. v. Bishop of London (1889) 24 QBD 213, at pp 226-227; Reg. v. Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd (1982) 3 AllER 761, at pp 769-770).
In this case the nature and purpose of the activities undertaken during the time between high school education and tertiary studies was not only a necessary consideration, but one central to determining whether or not that period of time would be ‘reasonable’. Indeed, even the example of military service given in the guidelines requires such considerations: In some countries compulsory military service may run for as long as the relevant time being considered in this case. Whilst compulsory military service is likely to provide a basis for finding that the time between school and a course was reasonable, another activity (such as going surfing) may not, even if the period of time were identical.
In this case I am satisfied that the MRT erred in that it failed to ask itself the correct question in considering this application. The matter should be remitted to the MRT to consider according to law. This will require the MRT to:
a)identify the relevant considerations;
b)make the necessary findings of fact relevant to those considerations;
c)determine the weight of the factors; and
d)ultimately make its finding as to whether the time is ‘reasonable’ or not.
One would expect that the MRT would provide some reasons or discussion at least on each of (a) to (c).
It is not for me to make any findings as to whether or not, on the facts of this case, a reasonable time has passed. In any event, as there is no finding of fact with respect to the degree of nexus between the course of study and the computer course I would be unable to do so on the findings of the MRT. Similarly, it does not appear to me that that MRT has formally determined whether or not the full time study currently being undertaken by the applicant at the Institute of Technology and Management in Phnom Penh is a course of study that fulfils the balance of clause 101.213(1)(c) of the definition, which will require some determination by the MRT based upon the evidence that is before it.
Conclusion
I will therefore order that the MRT decision be set aside, and remit the matter to be decided according to law.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
Date:
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