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Minister for Immigration and Citizenship v Kamal [2009] FCAFC 98

MIGRATION – application for Student (Temporary) (Class TU) visa under the Migration Act 1958 (Cth) – criteria for subclass 572 visa – requirement to demonstrate English language proficiency in accordance with Schedule 5A of the Migration Regulations 1994 (Cth) – meaning of “[a test] taken less than two years before the date of application” – whether provision requires that test be taken prior to date of application or whether it can be taken after date of application

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) rr 1.41(1), 1.44(1), Sch 2, sub-cll 572.223(1), 572.223(2)(a)(i), Sch 5A, Items 5A404(a), 5A404(b)

Kamal v Minister for Immigration and Citizenship [2009] FMCA 238; affirmed

Rana v Minister for Immigration and Citizenship [2009] FMCA 553; referred to

MINISTER FOR IMMIGRATION AND CITIZENSHIP v MOHAMMAD ANOWER KAMAL and MIGRATION REVIEW TRIBUNAL

NSD 299 of 2009

FINN, EMMETT & EDMONDS JJ

21 AUGUST 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 299 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Appellant

AND:

MOHAMMAD ANOWER KAMAL

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGES:

FINN, EMMETT & EDMONDS JJ

DATE OF ORDER:

21 AUGUST 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The Appellant pay the First Respondent’s costs of the appeal.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 299 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Appellant

AND:

MOHAMMAD ANOWER KAMAL

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGES:

FINN, EMMETT & EDMONDS JJ

DATE:

21 AUGUST 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1                          This appeal concerns the construction of the phrase “[a test] taken less than two years before the date of the application” in Item 5A404(a) in Schedule 5A to the Migration Regulations 1994 (Cth) (the Regulations).  The question is whether the language of that Item refers only to a test taken before the date of the application or whether it also includes a test taken after the date of the application.

2                          On 23 August 2007, the first respondent, Mohammad Anowar Kamal (Mr Kamal), applied for a Student (Temporary) (Class TU) visa under the Migration Act 1958 (Cth).  It is common ground that the only subclass of Class TU visa in respect of which Mr Kamal would have been eligible was subclass 572 – Vocational Education and Training Sector visa (572 Visa).  On 4 October 2007, a delegate of the appellant, the Minister for Immigration and Citizenship (the Minister), refused to grant a 572 Visa to Mr Kamal.  Mr Kamal then applied to the second respondent, the Migration Review Tribunal (the Tribunal), for review of the delegate’s decision. On 31 July 2008, the Tribunal affirmed the decision not to grant Mr Kamal a 572 Visa.

3                          Mr Kamal then commenced a proceeding in the Federal Magistrates Court seeking Constitutional writ relief in respect of the Tribunal’s decision.  On 20 March 2009, the Federal Magistrates Court quashed the Tribunal’s decision and ordered the Tribunal to determine its review of the delegate’s decision according to law.  By notice of appeal filed on 9 April 2009, the Minister appeals from the orders of the Federal Magistrates Court.  The Chief Justice has directed that the appeal be heard by a Full Court consisting of three judges.

RELEVANT STATUTORY PROVISIONS

4                          Division 1.8 of the Regulations, which consists of regs 1.40 to 1.44, contains special provisions for student visas.  Regulation 1.41(1) provides that the Minister must specify, in relation to each subclass of student visa, an assessment level to which an applicant for a student visa will be subject.  Under Regulation 1.44(1), an applicant for a student visa must give evidence about the applicant’s English language proficiency in accordance with the requirements set out in Schedule 5A for the relevant subclass of visa and the assessment level to which the applicant is subject.

5                          The criteria for a 572 Visa are set out in Part 572 of Schedule 2 to the Regulations.  Relevantly, an applicant must, as at the date of the decision, satisfy the criteria specified in clause 572.223.  Subclause 572.223(1) relevantly provides that the decision maker must be satisfied that the applicant meets the requirements of subclause 572.223(2).  One of those requirements, contained in paragraph 572.223(2)(a)(i), is that the applicant gives to the Minister evidence in relation to the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake.  The evidence is to be given in accordance with the requirements mentioned in Schedule 5A.

6                          The relevant part of Schedule 5A is Item 5A404.  Item 5A404 contemplates several possibilities.  One possibility is that contained in Item 5A404(a), which provides, relevantly, that an applicant must give evidence:

  • that the applicant will not undertake an ELICOS before commencing his or her principal course, and
  • that the applicant achieved, in an IELTS test that was taken less than two years before the date of the application, an Overall Band Score of at least 5.5.

Another possibility is contained in Item 5A404(b), which provides, relevantly, that an applicant must give evidence that:

  • the applicant will undertake an ELICOS of a specified duration before commencing his or her principal course, and
  • the applicant achieved, in an IELTS test that was taken less than two years before the date of the application, an Overall Band Score of 5.0.

An ELICOS is an English language intensive course for overseas students that is a registered course.  An IELTS test is the International English Language Testing System test.

7                          Thus, the scheme of Item 5A404 entails that by the time of the decision, an applicant may or may not have achieved an appropriate level of proficiency in English, as evidenced by the result of an IELTS test.  If the applicant has not achieved the relevant level of proficiency, he or she will undertake an ELICOS.  However, if the applicant has achieved the relevant level of proficiency, he or she will not need to undertake further tuition, such as an ELICOS.  There are other possibilities depending upon the level of proficiency that has been achieved by the applicant.

THE ISSUE

8                          Mr Kamal gave evidence to the Tribunal that he does not intend to take an ELICOS before commencement of his principal course.  He also gave evidence to the Tribunal that, on 8 December 2007, he achieved, in an IELTS test, an Overall Band Score of 5.5.  The question is whether that test was a test that was taken less than two years before the date of Mr Kamal’s application for a 572 Visa.  As already indicated, the date on which Mr Kamal applied for a 572 Visa was 23 August 2007.

9                          The Tribunal concluded that, in that circumstance, the IELTS test taken on 8 December 2007 was not a test that was taken less than two years before the date of Mr Kamal’s application and the requirement of Item 5A404(a) was not satisfied.  The Tribunal considered that Item 5A404 required a test to have been taken in the period commencing two years before the date of the application and ending on the date of the application.

10                       The primary judge in the Federal Magistrates Court took a different view as to the meaning of Item 5A404(a) and concluded, as a consequence, that the Tribunal’s decision was infected by jurisdictional error.  The Minister accepts that, if the Tribunal misconstrued Item 5A404 in the way found by the Federal Magistrates Court, the decision of the Tribunal was infected by jurisdictional error and Constitutional writ relief should be ordered.  The Federal Magistrates Court ordered that:

  • A writ of Certiorari issue directed to the Tribunal quashing the decision of the Tribunal.
  • A writ of Mandamus issue directed to the Tribunal requiring the Tribunal to determine Mr Kamal’s application for review according to law.
  • The Minister pay Mr Kamal’s costs.

11                       The only question before the Full Court is whether the construction of Item 5A404(a) adopted by the primary judge in the Federal Magistrates Court is correct.  No point has been taken concerning the form of the order and, in particular, as to whether a writ of Certiorari has the effect of quashing a decision.

DISPOSITION OF THE APPEAL

12                       The appeal has been conducted on the basis that one of two constructions of the relevant language of Item 5A404 is correct.  The Minister contends that the relevant phrase means:

  • an IELTS test that was taken within the period of two years before the date of the application.

The primary judge in the Federal Magistrates Court accepted Mr Kamal’s contention that the relevant language means:

  • an IELTS test that was taken no earlier than two years before the date of the application.

13                       The Minister contends that the relevant language of Item 5A404(a)(ii) is a composite phrase the natural meaning of which is to set a time period with both a start date, being the date two years before the date of the application, and an end date, being the date of the application.  The Minister says that the natural meaning of the word “before” is “prior in time to” and that the relevant phrase cannot embrace less than two years before the date of the application as well after the date of the application.

14                       The Minister points to what he characterises as good reasons of administrative efficiency for requiring an applicant to have achieved the relevant test result prior to making an application for a visa.  He contends that satisfying the language proficiency criteria is, in the context of a student visa application, part of a two step process.  The first part is the identification of the level of proficiency that an applicant has.  The second part is the provision of evidence that tuition will be put in place to remedy a relevant lack of English language proficiency by undertaking an ELICOS (see Rana v Minister for Immigration and Citizenship [2009] FMCA 553 at [36]).  The Minister says that ensuring that an applicant has undertaken an IELTS test before submitting a visa application aids the efficiency of the decision making process by enabling the second step, whether to undertake an ELICOS, to be taken once the IELTS result is known.

15                       To the extent that there is any ambiguity in the relevant language, the Minister points to the Explanatory Statement published in connection with Migration Amendment Regulations 2001 (No. 5) 2001 No 162 (Cth), pursuant to which the language in question was inserted in Schedule 5A.  The Explanatory Statement stated, inter alia, that the changes effected by the amending regulation codify, in Schedule 5A, evidentiary requirements that must be met by an applicant seeking to satisfy primary criteria for the relevant student visa subclasses, including criteria dealing with English proficiency.  The Explanatory Statement said that the IELTS test is designed to assess the language ability of candidates who need to study or work where English is used as the language of communication.  It stated that the IELTS test is readily available at centres around the world, including Australia, that arrange test administration according to local demand.  Most significantly, the Explanatory Statement then said:

Under the new student regime, potential students sit the test to gauge their English proficiency before applying for a student visa.  [emphasis added]

The Minister contends that, to the extent that there is ambiguity in the meaning of Item 5A404(a)(ii), the Explanatory Memorandum may be called in aid to resolve that ambiguity in favour of the construction contended for by the Minister.

16                       The Minister says that, if an applicant has not undertaken an IELTS test before lodging a visa application, the decision making process could be unduly delayed or frustrated.  Item 5A404 provides no requirement that an applicant is required to undertake the test by any particular date.  Accordingly, the Minister says, there would be a possibility that an applicant could delay taking the test and thus delay the making of a decision on the visa application.  On the other hand, the Minister says, if an applicant has sat for the IELTS test before lodging the application, it is only a matter of obtaining the result and giving evidence of the result to the decision maker.  However, there is nothing to suggest that such a rationale was in fact in the mind of the drafter of the relevant provisions in Schedule 5A.

17                       There is no indication in Item 5A404 that the possibility that an applicant might request a deferment of the decision while the applicant takes the relevant test should be the basis for the arbitrary exclusion of a test that happens to be the most recent and therefore the most current indication of the applicant’s proficiency.  The Minister accepts that the evidence of a result does not have to be given before the application is made, so long as it has been given prior to the decision.  An applicant could equally request some deferment of a decision while the evidence of a test result is obtained.

18                       Clearly, the question that is raised by this proceeding could have been avoided by the use of different language one way or another.  The Regulations contain various formulations of time periods that might have been employed in the drafting of Item 5A404 to avoid any possible ambiguity as to the meaning of the words in question.  For example, the Regulations contain the following formulations in various provisions:

The applicant has been employed in a skilled occupation for a period of… at least six months in the period of 12 months immediately before the day on which the application was made.

The applicant has, in the six months immediately before the day on which the application was made, completed a degree, diploma or trade qualification… for award by an Australian educational institution.

The applicant has been employed in a skilled occupation… for a period of, or for periods totalling, at least 24 months in the period of 36 months immediately before the day on which the application was made.

However, the complexity of the Regulations and the various occasions upon which they have been amended suggests that comparison of the language of Item 5A404 with the language of other provisions in the Regulations is likely to be of little assistance.

19                       The language of Item 5A404(a)(ii) is directed to the recency or currency of a test result.  The intent is to ensure that the test is sufficiently recent and current for the decision maker to be satisfied that it is a reliable indication of the proficiency of the applicant.  As a matter of logic and syntax, the words in question are clearly capable of being interpreted as meaning that the test must have been taken no earlier than two years before the date of the application.  The question of construction does not so much turn on the word “before” as on the phrase “less than two years before”, which means a test taken less than two years before.  While the question of construction is not without doubt, the construction contended for by Mr Kamal is to be preferred.

20                       That is the conclusion reached by the primary judge in the Federal Magistrates Court.  It follows that his Honour made no error in concluding as he did.  In the circumstances, the appeal should be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Emmett & Edmonds.

Associate:

Dated:        21 August 2009

Counsel for the Appellant:

Mr R Beech-Jones SC with Mr T Reilly

Solicitor for the Appellant:

Sparke Helmore

Counsel for the First Respondent:

Mr L Karp with Mr P Reynolds

Solicitor for the First Respondent:

Patience Parish Immigration Lawyers

Date of Hearing: 7 August 2009
Date of Judgment: 21 August 2009