Wake v MIAC
[2010] FMCA 272
•29 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAKE v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 272 |
| MIGRATION – MRT Decision – dependant child permanent residence visa – adult child undertaking tertiary studies – undertaken ‘since turning 18’ requires continuity from that date – alternative gap of six months or a reasonable time after completing year 12 – whether Tribunal considered relevant issues – assessment of reasonableness by reference to applicant’s submission – no jurisdictional error identified – application dismissed. |
| Acts Interpretation Act 1901 (Cth), s.15AB Legislative Instruments Act 2003 (Cth), s.13(1)(a) Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), Sch.2 cl.802.214, 802.221 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Sok v Minister for Immigration & Citizenship [2007] FCA 413 Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 190 SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487 Toia v Minister for Immigration & Citizenship [2009] FCAFC 79 |
| Applicant: | JAMES CHRISTOPHER WAKE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3019 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 8 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Turner |
| Solicitors for the Applicant: | Turner Coulson Immigration Lawyers |
| Counsel for the Respondents: | Mr G Kennett |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3019 of 2009
| JAMES CHRISTOPHER WAKE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Mr Wake was born in 1986 in the United Kingdom, where he completed his secondary education in 2003. He accompanied, or followed, his parents to Australia after they acquired permanent residence visas in 2006. He lived with them and worked in Townsville from January 2007. In January 2008 he commenced an apprenticeship with a smash repair business, and enrolled in a TAFE course leading to a Certificate III in ‘automotive vehicle body (vehicle painting)’.
On 25 November 2008, at the age of 22, he applied for a class 1108A subclass 802 ‘child’ permanent residence visa. This type of on-shore visa is available, inter alia, to dependent children of Australian citizens or holders of permanent residence visas, who are sponsored by their parents. Its ambit extends to some adult children who are under the age of 25 and are not engaged in full-time work, and who, at the time of application and decision, are undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
Eligibility for these people requires satisfaction of Migration Regulations Sch.2 cl.802.214 and 802.221(2):
802.21Criteria to be satisfied at time of application
….
802.214
(1)If the applicant has turned 18:
(a)the applicant:
(i) is not engaged to be married; and
(ii) does not have a spouse or de facto partner; and
(iii) has never had a spouse or de facto partner; 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)…
802.22 Criteria to be satisfied at time of decision
….
802.221
(1)In the case of an applicant who had not turned 18 at the time of application, the applicant:
(a)continues to satisfy the criterion in clause 802.212; or
(b)does not continue to satisfy that criterion only because the applicant has turned 18.
(2)In the case of an applicant who had turned 18 at the time of application:
(a)the applicant:
(i) continues to satisfy the criterion in clause 802.212; or
(ii) does not continue to satisfy that criterion only because the applicant has turned 25; and
(b)the applicant continues to satisfy the criterion in clause 802.214.
Mr Wake’s visa application was refused by a delegate on 16 June 2009, and this decision was affirmed by the Tribunal on 13 November 2009. Both the delegate and the Tribunal based their decisions on opinions that Mr Wake did not satisfy cl.802.214(c). The delegate also thought that he was disqualified by cl.802.214(b), but the Tribunal did not address whether full-time work in an apprenticeship came within this exclusion.
Mr Wake’s present application asks the Court to consider whether the Tribunal’s decision was affected by jurisdictional error. The Court does not have power itself to decide whether he qualifies for this visa or any other permission to stay in Australia.
The level of Mr Wake’s United Kingdom secondary school qualifications was the subject of unclear evidence which he gave the Tribunal at a hearing on 18 September 2009. He later presented documents showing that he had achieved a General Certificate of Secondary Education in June 2002, and then enrolled in several General National Vocational courses at his school, which he did not complete before he left school in May 2003. Although he told the Tribunal his opinion that his GCSE qualification and additional studies were the equivalent of Australian year 12 qualifications, his solicitor understood Mr Wake to have equivalence only to year 11 in the Australian school system (see transcript p.7).
In a submission made after the hearing, Mr Wake’s solicitor said:
The central issue is whether Mr Wake met the terms of Clause 802.214(1)(c) which provides:
“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”.
The first factual matter is the secondary school qualification attained by Mr Wake.
His evidence, although not entirely clear, was that he completed 5 years of secondary education which would indicate that he attained a year 11 equivalent. He did not go on to do his “O” levels, which are, according to the Country Education Profile for the UK, equivalent to the Australian year 12 or HSC.
This finding of fact was also found by the decision maker:
“After the applicant left high school, and simultaneously to working full-time in the United Kingdom, he worked towards the completion of the 6th Form year (Australian year 12 equivalent)”.
As Mr Wake did not complete the equivalent of year 12 he needs to show that he has been undertaking a full-time course of study leading to a trade qualification. The only way that a trade qualification can be obtained is through an apprenticeship.
Mr Wake’s evidence was that he was endeavouring to undertake an apprenticeship as a screen printer in the UK and did take up an apprenticeship as a spray painter in Australia in January 2008 which he kept until very shortly before the Tribunal hearing when he was advised by the Apprenticeship Board that his course would be suspended until his visa status was sorted out. He has, therefore, since turning 18, been undertaking a full-time course of study leading to the award of a trade qualification.
An apprenticeship is a full-time course of training including both vocational and academic programmes. By including vocational qualifications in the regulation, the Parliament has clearly intended such courses of training to come within the regulation.
Indeed, if a person wishes to come to Australia to undertake an apprenticeship, they will be granted a student visa, not an employment related visa reinforcing the submission that an apprenticeship is a full-time course of study.
Further, the regulation does not provide that the course should be undertaken continuously or currently simply that an applicant has been undertaking a full-time course.
Mr Wake, has, therefore, been undertaking a full-time course since he turned 18 and meets the terms of the regulation.
In its ‘findings and reasons’ the Tribunal summarised Mr Wake’s evidence as to his occupations after leaving school and before commencing his apprenticeship in Townsville:
At the hearing the applicant told the Tribunal that after completing his GSCE he had enrolled in a two year course but had dropped out of the course after one year. He stated that he then worked for five months as a retail assistant at Pets at Home. He stated that he then obtained a job at British Transfer Printing Company. He stated that he was not enrolled in a vocational course during the time he worked at the British Transfer Printing Company. The applicant stated that his employers taught him how to do the job. He stated that he did not obtain any trade or vocational qualification. The applicant stated that he worked for British Transfer Printing Company full time for about three years. In a document headed “work history” submitted after the hearing the applicant provided evidence that he had worked at British Transfer Printing Company from March 2004- January 2007.
When the Tribunal asked the applicant if he had ever asked his employers why they had not enrolled him in a vocational course he stated that when he had asked them they told him they had taught him everything he needed to know to do the job he was employed to do. He stated that they told him they were paying him for the job he had been taught to do.
The Tribunal’s reasoning which found Mr Wake not to satisfy cl.802.214(1)(c) was:
[51]In the Tribunal’s view Clause 802.214(1) (c) appears to contemplate participation in a full time course of study at a particular educational institution leading to the award of a trade or vocational qualification.
[52]The applicant’s advisor in his letter to the Tribunal dated 9 October 2009 submitted that the applicant was “endeavouring to undertake an apprenticeship as a screen printer in the UK”. The Tribunal accepts that the applicant may have wanted an apprenticeship. The applicant’s evidence at the hearing which the Tribunal accepts indicates that he received “on the job training”.
[53]The Tribunal is not satisfied that during his employment at British Transfer Printing Company from March 2004- January 2007 the applicant has been undertaking a fulltime course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
[54]The applicant arrived in Australia on 28 January 2007. The Tribunal accepts the evidence the applicant provided at the hearing that from January 2007 until January 2008 he worked in a number of different jobs. He first worked as a car detailer for three months he then worked as a screen printer at two different companies he then worked as a car detailer for one month. The Tribunal is not satisfied that from January 2007- January 2008 the applicant has been undertaking a fulltime course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
[55]The Tribunal accepts the evidence the applicant provided at the hearing that after his arrival in Australia he decided to make a new start in life and start a new career. The Tribunal accepts that in January 2008 he obtained an apprenticeship as a “spray painter” and enrolled in the Barrier Reef Institute of TAFE. The Tribunal accepts the evidence the applicant provided at the hearing that his apprenticeship has now been suspended.
[56]Given the evidence the applicant has provided in relation to his employment at British Transfer Printing Company and his employment in Australia from January 2007 – December 2007 the Tribunal is not satisfied that 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.
[57]The applicant did not claim and there is no evidence before the Tribunal to indicate that the applicant is, or was at any time, incapacitated for work due to the total or partial loss of her bodily or mental functions.
[58]The Tribunal is not satisfied on the evidence before it that the applicant meets the requirements of cl.802.214(1)(c).
It is apparent from cl.802.214(1)(c) that an applicant who has turned 18 before a visa application may satisfy its requirements if he or she meets either or both of its alternatives, that is, he shows that he “has been undertaking” a full-time tertiary course either “since turning 18” or from a date “within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system”. It is convenient to label these alternatives respectively as the ‘first wing’ and the ‘second wing’ of cl.802.214(1)(c).
It is apparent that the Tribunal did not separately explain why it found that Mr Wake did not satisfy either wing of cl.802.214(1)(c), and that it compressed its conclusions on both wings into its statements in [56]. The compression of its reasoning might be understandable in view of the submission made by Mr Wake’s solicitor. The compression does not necessarily evidence jurisdictional error on the part of the Tribunal.
Although additional analysis and discussion of each wing might have been desirable, the Court must examine the reasons given by the Tribunal to see whether they reflect any material error of law in the application of either of the wings of cl.802.214(1)(c), seeking to understand the actual reasoning of the Tribunal and without engaging in over-zealous judicial review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291).
Mr Wake’s application contains only one ground: that the Tribunal ‘applied the wrong test’. Although the two particulars lack clarity whether the ground relates to one or both of the wings of cl.802.214(1)(c), they appear to suggest that the Tribunal’s error was to require continuity in the undertaking of a requisite course from the age of 18 under the first wing, or from a date ‘within six months or a reasonable time after’ achieving year 12 equivalence under the second wing.
The ground was further developed in the course of oral submissions, which examined how the error emerged from the Tribunal’s findings and conclusions about Mr Wake’s occupations between 2003 and 2008. Ultimately, as I understood Mr Wake’s solicitor, he contended that the Tribunal erred in law:
i)in relation to the first wing, by construing ‘since’ as meaning ‘continuously from’ the point of time when Mr Wake turned 18, i.e. his 18th birthday in 2004 while he was working at the printing company, until the time of his enrolment in the TAFFE in Townsville in January 2008; and
ii)in relation to the second wing, by failing to address and make a finding whether Mr Wake’s United Kingdom secondary school qualifications were ‘the equivalent of year 12 in the Australian school system’; and
iii)in relation to the second wing, by failing to consider whether the period between Mr Wake leaving school in 2003 or 2004 and his commencement of his course in 2008 was ‘a reasonable time’ for the purposes of this criterion.
The Minister’s counsel submitted that the Tribunal’s paragraph [56], in the context of its preceding reasoning and Mr Wake’s solicitor’s submission to the Tribunal, correctly or sufficiently addressed both issues (i) and (iii), and that it was unnecessary for the Tribunal to address issue (ii) because it had found against Mr Wake on issue (iii).
He also submitted that, if the Tribunal erred in relation to issues (ii) or (iii), relief should be refused in the discretion of the Court, on the ground that Mr Wake’s solicitor had conceded to the Tribunal that Mr Wake could not satisfy the second wing, because his secondary schooling did not achieve year 12 equivalence. Counsel submitted that it would therefore be contrary to the interests of justice, to require the Tribunal to reconsider the matter by reference to a claim which appeared to have been abandoned before the Tribunal (citing SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487 at [51]-[52] and [98]-[99], and Toia v Minister for Immigration & Citizenship [2009] FCAFC 79 at [3]-[4] and [49]-[59]).
Mr Wake’s solicitor disputed whether his letter to the Tribunal made any concession on behalf of Mr Wake. He submitted that issues (ii) and (iii) remained live before the Tribunal, as a result of Mr Wake’s own evidence that he believed that he had year 12 equivalence and had pursued a course of education while working for the printing company. He also submitted that the Tribunal’s reasons did not, in fact, rely upon any concession that the second wing of para.(c) could not apply to Mr Wake, but had purported to address both wings in its compressed reasoning in its paragraph [56].
Although it is not clear, I accept the common ground of both counsel, that the Tribunal’s conclusions in paragraph [56] should be understood as addressing both wings of cl.802.214(1)(c). In its expressed terms it did address the full ambit of that paragraph, and in its terms and context it appears to be more than a formal restatement of that criterion.
It is clear from the Tribunal’s statement of reasons that it intended to address the written submission of Mr Wake’ solicitor. In my opinion, its reasons also suggest that it did not understand the submission to have formally waived its duty to address both wings of the paragraph. It is also clear that the Tribunal understood Mr Wake’s solicitor to have relied upon a contention that Mr Wake’s employment with the printing company from his eighteenth birthday until he came to Australia was equivalent to an apprenticeship such as he commenced in January 2008, and that, if this were accepted, then Mr Wake could be found to have satisfied cl.802.214(1)(c). This was, indeed, the claim made in that submission.
When analysed generously, the solicitor’s submission could reasonably be understood as submitting that the first wing of the paragraph could be satisfied by regarding Mr Wake’s printing company employment as being the ‘undertaking of a full-time course of study’ or, alternatively on a construction not requiring continuity, by overlooking the hiatus between his 18th birthday and his enrolment at the Townsville TAFFE. The submission could also be understood to suggest that this characterisation of the Mr Wake’s printing company employment provided reasons for regarding the four year hiatus between Mr Wake’s secondary schooling and his TAFFE enrolment as a “reasonable time” for the purposes of the second wing, if it could apply.
In my opinion, the Tribunal’s reasoning extracted above, may fairly be understood as comprehending, and sufficiently addressing, the factual claim and contentions presented to the Tribunal by Mr Wake’s solicitor, when the solicitor’s submission to the Tribunal is analysed beneficially in the above manner.
The short reason given by the Tribunal in paragraph [56] for finding that Mr Wake did not satisfy either of the wings of cl.802.214(1)(c) was: “given the evidence the applicant has provided in relation to his employment at British Transfer Printing Company and his employment in Australia from January 2007- December 2007”. This was explained and accompanied by the Tribunal’s explicit rejection in paragraph [53] of the solicitor’s general contention, which it identified at [52], that the employment at the printing works involved, or could be regarded as equivalent to, “undertaking a fulltime course of study at an educational institution leading to the award of a professional, trade or vocational qualification”. It was accompanied by findings about the nature of Mr Wake’s occupations between 2003 and 2008, and his evidence that his 2008 apprenticeship marked the start of “a new career”.
In my opinion, the expressed findings and conclusions of the Tribunal should fairly be understood as deciding that:
i)The Tribunal was not satisfied as to the first wing, because its rejection of the contention that Mr Wake’s employment at the printing company amounted to his undertaking a course of study meant that Mr Wake had not undertaken any requisite study ‘since turning 18’ in 2004. Implicitly, as was accepted by both counsel, this was based upon a construction of the word ‘since’ as meaning ‘continuously from’.
ii)The Tribunal was not satisfied as to the second wing, because its rejection of the submitted character of the employment at the printing factory and its findings about his occupations prior to 2008 prevented the long hiatus between Mr Wake’s leaving school and commencing study in 2008 being characterised as a ‘reasonable time’.
I am, at least, not persuaded that the Tribunal’s reasoning process should not be so understood.
Upon that understanding of the Tribunal’s reasoning, I can now shortly deal with the above three errors of law contended by Mr Wake’s solicitor to me.
In my opinion, the language and immediate legislative context show that ‘since’ is used in the sense of ‘continuously from’ the event of ‘turning 18’. As reference to the Macquarie Dictionary or other dictionaries show, this is the ordinary meaning of the word, whether used as an adverb, preposition or conjunction.
Moreover, I accept the submission of counsel for the Minister, that to read the word ‘since’ as merely meaning ‘at any time after’ turning 18, would give the first wing an effect which left no purpose for the inclusion of the second wing. It is a construction which, therefore, was unlikely to have been intended by the maker of the regulation.
This is because, read in the context of the preceding words in cl.802.214(1)(c), both wings necessarily relate to a person who at time of visa application and decision has ‘turned’ 18, is not working full-time, and has been undertaking a course of tertiary study before visa application. If, under the first wing, the time of commencement of that study may occur at any time before or after the applicant’s 18th birthday, then there was no purpose in making the provision in the second wing for visa applicants who were not undertaking tertiary study when they turned 18, but commenced their course after that age and after a hiatus of 6 months or a ‘reasonable time’ from completing year 12.
I therefore consider that the intention of the word ‘since’ should be identified from its ordinary usage and its legislative context, and that it has the meaning implicitly adopted by the Tribunal. Applying that construction, it was plainly open to the Tribunal to find that Mr Wake’s employment at the printing company, which he was pursuing when he turned 18, did not amount to a relevant ‘course’ being undertaken since that time, if only because it did not involve enrolment in an ‘educational institution’. I therefore do not accept the contention that the Tribunal’s reasons exhibit error of law, when concluding that it was not satisfied that Mr Wake met the first wing of cl.802.214(1)(c).
When arriving at the above construction of ‘since’, I have not found it necessary, as I was invited by counsel for the Minister, to refer to the ‘policy background’ to the criterion described in the Department of Immigration’s guide to delegates known as PAM3 (see Sok v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 190 at [20]). It appears to me that this publication would not provide permissible extrinsic material under s.13(1)(a) of the Legislative Instruments Act 2003 (Cth) and s.15AB of the Acts Interpretation Act 1901 (Cth), although at times it might illustrate alternative interpretations.
I can now turn to the two contended errors of law made by the Tribunal in its application of the second wing of cl.802.214(1)(c).
It is common ground that the Tribunal’s reasons should not be read as containing a finding that Mr Wake’s secondary school qualifications were not equivalent to year 12 in the Australian school system, nor as treating Mr Wake’s solicitor’s apparent concession to this effect as conclusive of that issue. However, I accept the submission of counsel for the Minister, that the Tribunal’s reasoning should be understood as not finding it necessary to address that issue.
This was because, as I have explained above on a fair reading of its reasons, the Tribunal found against Mr Wake in relation to the second wing by rejecting the solicitor’s submission that Mr Wake’s employment with the printing company should be characterised as equivalent to pursuing tertiary studies by way of an apprenticeship preliminary to coming to Australia and pursuing another apprenticeship. It therefore did not accept the factual basis for the implicit claim that the Tribunal could regard Mr Wake’s hiatus between leaving school and commencing a tertiary course in 2008 as being ‘six months or a reasonable time’. Having arrived at that conclusion, it was, in law, unnecessary for the Tribunal to address and make a finding upon the other element in the second wing, being the character of Mr Wake’s school qualifications.
I therefore do not accept that the Tribunal’s failure to make findings on the ‘equivalence’ element reveals either a material error of law or a jurisdictional error, by way of a failure to consider a relevant consideration.
The third error of law relied upon by Mr Wake points to the absence of any explicit discussion by the Tribunal of the concept of a ‘reasonable time’ in cl.802.214(1)(c), nor of the Tribunal’s application of that concept to Mr Wake’s circumstances. His solicitor now argues that the concept raises numerous considerations which must be separately addressed, including those identified by Reithmuller FM in Sok (supra) at [19] and [29], and those suggested in PAM3 (see that judgment at [20]-[21], and the relevant version which was Exhibit A before me).
The present Tribunal, on my above examination of its reasons, did not make the error made by the Tribunal in Sok, of looking ‘only to the period of time and not the surrounding circumstances’, nor the error of not taking into account the nature of the visa applicant’s activities during the hiatus and his claims about its relevance to his subsequent tertiary studies (see [22] and [26] of that judgment). Rather, the present Tribunal expressly considered, and did not accept, the submitted characterisation of Mr Wake’s activities during the hiatus. It concluded that his activities were purely ‘employment’, and that his commencement of his 2008 studies indicated a decision “to make a new start in life and start a new career” (see paragraph [55] of its reasons). I therefore reject the submission that the present Tribunal made the same errors which caused the remitter of the matter in Sok.
Mr Wake’s solicitor submitted that the Tribunal was bound to perform the full analysis and consideration suggested by Reithmuller FM in Sok at [19] and [29], where he said:
[19]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.
[29]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).
I do not understand Reithmuller FM to be opining that the Tribunal must address each of these matters separately in every statement of reasons addressing cl.802.214(1)(c). If this were his opinion, then I would respectfully disagree. It would imply in the legislation a set of binding considerations and procedural obligations not found in the statutory language itself.
I agree with Reithmuller FM that the Tribunal must endeavour to arrive at a conclusion on whether the hiatus occupied a time which should be regarded as ‘reasonable’ in the context of the criterion and the circumstances of the particular visa applicant. As Kenny J observed in Sok v Minister for Immigration & Citizenship [2007] FCA 413 at [66]:
The paragraph does not require there to be justification for the lapse of time; rather, the paragraph requires that an applicant has been undertaking a full-time course “within … a reasonable time after completing the equivalent of year 12”. Of course, the Tribunal’s assessment of what is a reasonable time necessarily depends on all the circumstances of the case; and if, in using the word “justify”, the Tribunal merely sought to capture this idea, then there was no error. (her Honour’s emphasis)
I accept that there may be cases where the absence of a fuller discussion of this element, or the appearance of over-simplification of the concept of ‘reasonableness’, allows a conclusion on judicial review that the Tribunal failed, in fact, to apply the statutory test. However, there may be other cases where the visa applicant’s circumstances found by the Tribunal, taking into account the manner in which his claims were put forward by him and his representatives, do not require extensive discussion, before the Tribunal makes a finding that it is not satisfied that the hiatus should be regarded as a ‘reasonable time’ for a delay in the commencement of tertiary studies, in the context of this visa criterion.
In my opinion, Mr Wake’s circumstances, as presented to the Tribunal by him and his solicitor, were of the latter character, and the absence of fuller discussion in relation to the second wing does not evidence jurisdictional error. As I have explained above, I am not satisfied that the Tribunal’s conclusion expressed in [56] and its preceding findings did not fully address all the evidence and submissions put forward by Mr Wake in support of the application of the second wing of cl.802.214(1)(c). I am not satisfied that it made any error of law when rejecting his solicitor’s submissions, and when concluding that the period between Mr Wake’s completing his secondary education and commencing his new studies in 2008 was not ‘a reasonable time’ within that paragraph.
For the above reasons, I do not accept that any of the contended jurisdictional errors have been established in the reasoning of the Tribunal. Mr Wake has therefore not established an entitlement to relief by way of writs of certiorari and mandamus. It is unnecessary for me to consider whether I would have withheld relief on the ground submitted by counsel for the Minister.
It is agreed that costs under the migration scale should follow the event.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 29 April 2010
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