Singh v Minister for Immigration & Anor [2009] FMCA 1149 (10 December 2009)

Last Updated: 11 December 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1149

MIGRATION – Subclass 572 – student visa – whether certificate of enrolment in a course of study required current enrolment at time of decision – statutory interpretation – literal or purposive approach – section 359A – whether information provided by applicant – whether “lack of information” covered by s.359A.

Migration Act 1958 (Cth), ss.65, 357A, 359, 474 Migration Regulations 1994, rr.1.03, 1.40A, sch.2 Acts Interpretation Act 1901, ss.13, 15AA, 15AB, cl.13

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 (FC) W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (FCA/FC) Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 Chen Xin He v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, RD Nicholson J, 23 November 1995, unreported) Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 Luu & Anor v Renevier [1989] FCA 518; (1989) 91 ALR 39 Rhandawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 SZJGV v Minister for Immigration and Citizenship [2009] HCA 40 Re Minister for Immigration and Multicultural Affairs: Ex parte Cohen (2001) 177 ACR 473 Quarm v Minister for Immigration and Citizenship [2008] [2008] FCA 1156; (2008) 171 FCR 307 Cooper Brookes (Wollongong) Proprietary Limited v Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 Broken Hill South Ltd v Commissioner of Taxation (NSW) [1937] HCA 4; (1937) 56 CLR 337 SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091 Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 Shrestha v Minister for Immigration and Citizenship [2008] FCA 1296 Kiloul v Minister for Immigration and Multicultural Affairs [2006] FCA 1055 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZMKG v Minister for Immigration and Citizenship [2009] FCAFC 99 SZKCQ v Minister for Immigration and Citizenship [2009] FCA 78

Applicant:

KIRPAL SINGH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 849 of 2009

Judgment of:

Turner FM

Hearing date:

8 October 2009

Date of Last Submission:

8 October 2009

Delivered at:

Melbourne

Delivered on:

10 December 2009

REPRESENTATION

Counsel for the Applicant:

Mr Hughan

Solicitors for the Applicant:

Erskine Rodan & Associates

Counsel for the Respondents:

Mr Felman

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) That the application filed 8 July 2009 is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 849 of 2009

KIRPAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant has been refused a Student (Temporary) (Class TU) visa and seeks judicial review of that decision.
2. The main issues relevant to the review are:

2.1 Whether the Migration Regulations 1994 (the “Regulations”) required the applicant to give to the Minister a certificate of enrolment (in an acceptable course of study), that was current at the date of decision.

2.2 Whether the Tribunal failed to afford procedural fairness to the applicant generally, and

2.3 Whether the Tribunal failed to comply with s.359AA and 359A of the Migration Act 1958 (the “Act”) by failing to give the applicant notice that his failure to provide a certificate of enrolment current at the date of decision, would be the reason, or part of the reason, for affirming the decision under review.

3. The applicant arrived in Australia on 7 April 2006 on a subclass 572 visa and commenced study for a Diploma of Hospitality Management, which was scheduled to run from 10 April 2006 until 26 March 2008. His visa was valid until 20 April 2008. He was arrested on criminal charges and detained from 24 January 2007 to 8 May 2007 when he was released on bail. His studies were therefore interrupted. He lodged another application for a temporary student visa on 4 March 2008 (Court Book 8), with documentation showing that he was enrolled from 10 April 2006 to 20 March 2008. He completed his studies, and obtained classification as a “Cook”. The applicant had completed his studies by the date of the Delegate’s decision on
   2 September 2008 (Court Book 94.4). As a result, the Delegate found that the applicant “does not have a certificate of enrolment for a registered course and is not currently enrolled in a registered course” and therefore he does not meet the requirement of cl.572.222
   (Court Book 94.5). The finding of fact that the applicant was not currently enrolled in a course was open on the material before the Delegate as the CoE showed a course end date of 13 June 2008.
   (Court Book 19.5)
4. The applicant’s migration agent told the Tribunal that the applicant wanted the visa so that he could apply for permanent residence. He said that as it had been more than six months since the applicant completed his course, he was now ineligible to apply for a permanent residence. (Court Book 27.5 and 94.8)
5. By decision on 2 September 2008 the Delegate refused the application for a visa for failing to comply with cl.572.222 of Schedule 2 to the Regulations.
6. At the time the application was made, cl.572.222 provided:
   • (1) Except if subclause (2) applies or if the application was made on form 157E, the applicant gives to the Minister a certificate of enrolment relating to the applicant undertaking a course of study the provider of which is not a suspended education provider (an acceptable course).
   • (2) If a failure of electronic transmission has prevented an education provider from sending a certificate of enrolment and the Minister is satisfied that the applicant needs to travel urgently, the applicant gives to the Minister satisfactory evidence that the applicant is enrolled in an acceptable course.
   • (3) If the application was made on form 157E, the applicant is enrolled in an acceptable course.

Clause 572.222 requires the applicant to give to the Minister a certificate of enrolment relating to the applicant undertaking a course of study.

7. The Confirmation of Enrolment (“CoE”) certificate lodged by the applicant showed a course end date of 20 March 2008. A second CoE was created on 5 March 2008 which is after the application was made (Court Book 8) and showed a course end date of 13 June 2008.
   (Court Book 19)
8. The Delegate refused to grant the applicant a visa because the applicant was seeking to complete his course on 13 June 2008 (Court Book 19). The Delegate found that the course had therefore finished at the date of decision and the system records showed that the applicant was not then enrolled in a registered course. That finding of fact was open to the Delegate on either CoE. The decision records that the applicant:
   • “does not have a certificate of enrolment for a registered course and is not currently enrolled in a registered course”
     (Court Book 33.10)
9. The application was made in visa class Student (Temporary)
   (Class TU), and was considered against the other subclasses within that class (Item 1222 of Schedule 1 to the Regulations). No claims were made for any other subclass and the applicant did not satisfy the criteria for any other subclass. (Court Book 92.6 and 96.6)
10. The application was therefore refused.
11. The applicant applied to the Migration Review Tribunal (the “MRT”) to review the decision of the Delegate. (Court Book 35)
12. The MRT wrote to the applicant’s migration agent on 7 May 2009 inviting the applicant to appear before the MRT to give evidence and present arguments (Court Book 53). The applicant appeared on
    9 June 2009 and was represented by his migration agent; an interpreter was present. (Court Book 93.6)
13. At the hearing on 9 June 2009 the MRT was handed a written submission on behalf of the applicant which included a submission that the applicant:
    • “continued his study and was a regular student of the Carrick Institute upto (sic “up to”) 9th September 2008 as he completed his Advance Diploma of Hospitality Management on 9th September 2008” (Court Book 73.9)

It also stated that:

“(completion certificate is attached)”

Various documents were attached that show completion dates of
25 August 2008 and 9 September 2008 (Court Book 79 – 87). The documents were not produced to the Delegate who made his decision on 2 September 2008. (Court Book 32)

14. By decision dated 11 June 2009 the MRT affirmed the decision of the Delegate.
15. The applicant seeks judicial review of the decision of the MRT.
    Mr Hughan appeared for the applicant and Mr Felman for the first respondent.
16. The grounds in the application for judicial review are as follows.

The application

Grounds of application

(1) In affirming the decision of a delegate of the First Respondent to refuse the Applicant a Student (Temporary) (Class TU) visa, the Tribunal made an error of law which caused it to ask itself the wrong question, to rely on irrelevant material, to make an erroneous finding and/or to reach a mistaken conclusion, and the Tribunal’s purported exercise of its jurisdiction was thereby affected.

Particulars

(a) The Tribunal misinterpreted cl.572.222 of the Migration Regulations 1994 by requiring that a visa applicant give to the First Respondent a certificate of enrolment (relating to the visa applicant undertaking an acceptable course of study) which was current at whatever date the First Respondent determined as the date to decide the visa application, such date being beyond the control of an applicant.
(b) The Tribunal misinterpreted cl.572.222 by concluding that the clause could be satisfied if a visa applicant merely handed to the First Respondent a certificate of enrolment regardless of whether the certificate was current or had expired at that time.
(c) The Tribunal misinterpreted cl.572.222 by purporting to adopt a purposive approach to the construction of the clause, but in doing so the Tribunal erroneously identified alleged flaws of a literal approach to construction, failed to identify the flaws inherent in its own approach and failed to identify accurately the objects of the regulatory scheme.
(d) As a result of the Tribunal’s misinterpretation of cl.572.222, the Tribunal failed to consider whether the certificate of enrolment given by the Applicant to the First Respondent was current and valid at the time it was given to the First Respondent.
(e) The Tribunal’s misinterpretation of cl.572.222 caused the Tribunal to consider whether the certificate of enrolment which was current and valid at the time it was provided to the First Respondent was still current at the date of the decision.

(2) The Tribunal erred in the exercise of its jurisdiction by failing to accord to the Applicant procedural fairness generally and by failing to comply with the obligations imposed on it by ss.359AA & 359A of the Migration Act 1958.

Particulars

(a) The Tribunal considered that the failure of the Applicant to provide it with a certificate of enrolment which was then current would be the reason, or a part of the reason, for affirming the decision under review.
(b) The Tribunal considered that the failure of the Applicant to comply with cl.572.231 would be the reason, or a part of the reason, for affirming the decision under review.
(c) The Tribunal did not give the Applicant clear particulars of this information before or at the hearing of the application for review.
(d) The Tribunal did not ensure before or at the hearing of the application for review that the Applicant understood why this information was relevant to the review and the consequences of reliance on this information in affirming the decision that was under review.
(e) The Tribunal did not invite the Applicant to comment on or respond to this information before or at the hearing of the application for review.

The Tribunal did not advise the Applicant that he may seek additional time to comment on or respond to this information.

17. Further and Better Particulars of the Grounds were given as follows.

Further and Better Particulars

At the hearing of this application the Applicant will seek to rely on the following Grounds of Appeal:

(1) In affirming the decision of a delegate of the First Respondent to refuse the Applicant a Student (Temporary) (Class TU) visa, the Tribunal made an error of law which caused it to ask itself the wrong question, to rely on irrelevant material, to make an erroneous finding and/or to reach a mistaken conclusion, and the Tribunal’s purported exercise of its jurisdiction was thereby affected.

Particulars

(a) The Tribunal misinterpreted cl.572.222 of the Migration Regulations 1994 by requiring that a visa applicant give to the First Respondent a certificate of enrolment (relating to the visa applicant undertaking an acceptable course of study) which was current at whatever date the First Respondent determined as the date to decide the visa application, such date being beyond the control of an applicant.
(b) The Tribunal misinterpreted cl.572.222 by concluding that the clause could be satisfied if a visa applicant merely handed to the First Respondent a certificate of enrolment regardless of whether the certificate was current or had expired at that time.
(c) The Tribunal misinterpreted cl.572.222 by purporting to adopt a purposive approach to the construction of the clause, but in doing so the Tribunal erroneously identified alleged flaws of a literal approach to construction, failed to identify the flaws inherent in its own approach and failed to identify accurately the objects of the regulatory scheme.
(d) As a result of the Tribunal’s misinterpretation of cl.572.222 the Tribunal failed to consider whether the certificate of enrolment given by the Applicant to the First Respondent was current and valid at the time it was given to the First Respondent.
(e) The Tribunal’s misinterpretation of cl.572.222 caused the Tribunal to consider whether the certificate of enrolment which was current and valid at the time it was provided to the First Respondent was still current at the date of the decision.

(2) The Tribunal erred in the exercise of its jurisdiction by failing to comply with the obligations imposed on it by s.359A of the Migration Act 1958.

Particulars

(a) The Tribunal considered that the failure of the Applicant to provide it with a certificate of enrolment which was then current would be the reason, or a part of the reason, for affirming the decision under review.
(b) The Tribunal considered that the failure of the Applicant to comply with cl.572.231 would be the reason, or a part of the reason, for affirming the decision under review.
(c) The Tribunal did not give the Applicant clear particulars of the information referred to at (a) & (b) herein before or at the hearing of the application for review.
(d) The Tribunal did not ensure before or at the hearing of the application for review that the Applicant understood why the information referred to at (a) & (b) herein was relevant to the review and the consequences of reliance on this information in affirming the decision that was under review.
(e) The Tribunal did not invite the Applicant to comment on or respond to this information before or at the hearing of the application for review.

18. One necessary criterion for a subclass 572 visa which must be satisfied at the time of decision, is in cl.572.222 of Schedule 2 to the Regulations.
19. Clause 572.222, as it was at the time of decision is set out above.
20. The Tribunal told the agent that the question was whether the applicant satisfied the non-discretionary cl.572.222?, which required him to have provided a certificate of enrolment relating to him undertaking a course of study. (Court Book 94.10)
21. The Tribunal found that to qualify for a visa the applicant must give the Minister (or Delegate) a certificate of enrolment relating to the applicant undertaking an acceptable course at the date of decision. (Court Book 95.5)
22. The Tribunal found that the applicant had not provided that evidence.
    • “Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA [1985] FCA 47; (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier [1989] FCA 518; (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA [1994] FCA 1253; (1994) 52 FCR 437 at 451.”

As stated in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 169-70: “It is no part of the duty of the decision-maker to make the applicant’s case for him [or her]”.

23. The Tribunal found that on a literal reading of cl.572.222, “the clause could be satisfied if the applicant merely handed a certificate of enrolment to the Minister, regardless of whether the certificate was current or had expired.” (Court Book 95.7)

The Tribunal continued:

“However, to take a literal interpretation in these circumstances would be problematic in a number of ways. First, it would be difficult to assess the basis of the visa application; without evidence of current enrolment or an offer of enrolment, there would be no firm basis for determining the relevant subclass under r.1.40A in order to establish an applicant’s assessment level; nor would the student be able to demonstrate that he or she has the English levels that satisfy the education provider, or there is no education provider to be satisfied. Second, the applicant would not meet the requirement of cl.572.231 that the applicant is ‘enrolled in, or is the subject of a current offer of enrolment in a course of study...’” (Court Book 95.9)

Arguments for the applicant as to Ground One

24. Mr Hughan argued that it is not possible for the applicant to give to the Minister a document at the time of application that is going to be current at the date of the Delegate’s decision (Transcript p2, line 25), and therefore cl.572.222 cannot be given its literal meaning.
    Mr Hughan argues that the words “gives to the Minister” in cl.572.222 showed he read as “has given” to the Minister (Transcript p4 line 12).
25. Mr Hughan relied on the decision in SZJGV v Minister for Immigration and Citizenship [2009] HCA 40 at [9] to argue that:
    • “where the ordinary meaning of words in a statute lead to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put on it which modifies the meaning of the words and even the structure of the sentence”

And at [9]:

“Three matters of which the court must be sure before interpreting a statue in this way were the intended purpose of the statue, the failure of the draftsman and parliament by inadvertence to give effect to that purpose, and the substance of the provision parliament would have made. The third of these conditions was described as being of crucial importance.”

The Court of course accepts those three statements of the law.

26. Mr Hughan argues that what Parliament would have done, had it thought about it clearly, would have been to draft “has given” instead of “gives”, as being part of a scheme to assess the genuineness of students. The Court rejects this argument for the reasons below.
27. Mr Hughan argues that once a current certificate is given the criterion is satisfied at whatever date the Delegate makes their decision, and that there is no requirement that it be current at the date of decision. The Court rejects this argument for the reasons below.
28. Mr Hughan acknowledges that s.65 of the Act requires the Minister to apply the criteria in force at the time of decision.
29. Mr Hughan submits that the Minister is assessing at the time of decision, whether the applicant has given a certificate relating to him undertaking a course (Transcript p7, line 8), and not whether the certificate remains current. The Court rejects this argument for the reasons set out below.
30. Mr Hughan submits that the Tribunal’s view that .222 required the provision of a certificate that is current at the date of decision is incorrect. The Court rejects this argument.
31. Mr Hughan argues that the Tribunal should look at whether a current CoE had been given and therefore whether .222 had been satisfied at some time before the Delegate’s decision (Transcript p9, line 26). That submission ignores the fact that .222 is part of reg.572.22 which is headed “Criteria to be satisfied at the time of decision.”
32. Mr Hughan argues that it is not a sensible objection to argue that if a current CoE is not required at the time of decision, an assessment under the then reg.1.40A would not be possible. The Court does not accept that it would have been hard for the Tribunal to establish the relevant subclass under reg.1.40A as a copy has not been provided to the Court. However that is merely one of the reasons for the Tribunal not giving a literal interpretation to the regulation and has no bearing on the ultimate outcome.
33. Mr Hughan argues that the Tribunal’s other reason for rejecting a literal approach being that the “student would not be able to demonstrate that they have the English levels that satisfy the education provider as there is no education provider to be satisfied”, is unsound. He submits that the assessment of English proficiency can be made when the certificate is given. Again that argument ignores the fact that cl.572.223(2)(a)(i)(A) is a “time of decision” criteria.
34. Mr Hughan argued next that the criteria is .231 is entirely different from .222. The Court accepts that submission, but decides that to give .222 the construction argued for by Mr Hughan would be inconsistent with the clear wording of .231.
35. Mr Hughan stated that the handing of an expired certificate of enrolment to the Minister would not satisfy .231
    (Transcript p12, line 8), and that an applicant needs to satisfy both .222 and .231 (Court Book 95.9). However the Tribunal did not base its decision on a failure to meet .231.
36. The Court then put to Mr Hughan that the overall purpose of the regulation is to ensure that a student is currently enrolled in a course at the time of decision. Mr Hughan responded that:
    • “The overall purpose...is to ensure that a student is a genuine student.” (Transcript p13, line 45)

Mr Hughan agreed that you assess “genuineness” by finding whether the student is enrolled in a course at the time of decision
(Transcript p14, line 3). Mr Hughan submits that .222 is a mechanical requirement, and that if you meet that requirement you go on to look at the other criteria. (Transcript p14, line 20)

37. Mr Hughan submitted that the applicant met .231 at the time of the primary decision on 2 September 2008 because the applicant provided a certificate current at the time. The Court rejects that submission. The latest CoE had a course end date of 13 June 2008 (Court Book 19.5) and the decision was made on 9 September 2008. (Court Book 32.5)
38. Mr Hughan stated that the .222 document would commonly be evidence that is relied upon for the .231 assessment, “but there will be other situations as here.” (Transcript p17, line 22)
39. Mr Hughan referred to the decision in Re Minister for Immigration and Multicultural Affairs: Ex parte Cohen (2001) 177 ACR 473 at [34] that
    • “Adopting an incorrect interpretation is not always synonymous with jurisdictional error...provided the Tribunal understood the question it had to answer.”

Mr Hughan submits that here the Tribunal did not understand the question it had to answer. The Court rejects that submission. The MRT stated the correct question to be answered. (Court Book 96.1)

Arguments for the first respondent as to Ground One

40. Mr Felman submits that it is critical that cl.572.222 is a “time of decision” criteria. As stated above, the Court agrees.

Mr Felman submits that .222 refers to the applicant “undertaking” a course of study. The Court accepts that this requires that at the time of decision the applicant is “undertaking” a course of study.

41. Mr Felman submits that a CoE is defined is reg.1.03 as a confirmation that an applicant “is enrolled” in a registered course. That is correct.
42. Mr Felman submits that the question of whether a CoE is required by .222 to be current at the date of decision depends on:
    1. Whether the validity of a CoE depends on it being current, and
    2. If so, is the currency assessed at the date of the Minister’s decision.

Mr Felman referred to the decision in Quarm v Minister for Immigration and Citizenship [2008] FCA 1156; (2008) 171 FCR 307 at [207] as authority that by virtue of s.65 of the Act, the criteria referred to are those in force at the time the Minister makes the decision. The Court accepts that submission.

43. Mr Felman submits, and the Court accepts that had Parliament intended the CoE to be assessed at the time of application it would have been easy to state that.
44. Mr Felman referred to the decision in SZJGV (supra) and the third element at [9] being
    • “the substance of the provision the Parliament would have made.”

The Court accepts there is nothing to indicate that Parliament would have inserted the words “has given” if it had turned its mind to the issue.

45. Mr Felman submits that of the two constructions open on .222 the Court should have regard to a construction that promotes the purpose of the Act (s.15AA of the Acts Interpretation Act 1901). The Court accepts that submission.
46. Mr Felman argues, and the Court accepts, that s.15AB of the Acts Interpretation Act 1901, allows the Court to have regard to extrinsic material in interpreting an Act. He refers to the Explanatory Statement to the amendments that introduced .222. Under the heading “New Clause 572.222” it is stated that
    • “The purpose is to ensure that an applicant provides evidence that he or she is enrolled in a full-time course of study.” (emphasis added)

The Court accepts that the provision requires evidence to be provided that the applicant is enrolled at the time of decision.

47. The Court accepts the submission that to accept that an applicant can rely on an expired CoE at the time of decision would defeat the purpose of .222. The Court asks itself “If that was allowed, why would the applicant need a student visa when he had no course to study?”
48. The Explanatory Statement to the amendment refers to the changes being to
    • “better target those markets that attract genuine overseas students”

See also cls.572.221(2)(b)(i)(A); 572.223(1); 572.223(2)(a)(ii). Without proof at the time of decision that the applicant is enrolled, or is the subject of an offer of enrolment, genuineness cannot be proved.

49. Mr Felman agues that the decision in Quarm (supra) does not support the applicant’s argument here, as in Quarm the Minister had to look back to ascertain if a qualification had been obtained, whereas in the present case the Minister has to be satisfied that an applicant is enrolled, or has an offer of enrolment, in a full-time course of study. The Court finds that Quarm does not support the applicant.
50. Mr Felman submits that if his primary submission is not accepted, the decision of the Tribunal requiring a current CoE is an error of fact, not of law. The Court rejects that submission. In Re Minister for Immigration and Multicultural Affairs: Ex parte Cohen (2001) 177 ACR 473 the question was whether the person had a disability, which is a question of fact, whereas here the question is whether .222 requires there to be a current CoE at the date of decision. The issue here is a question of law. The cases are distinguishable.
51. The Court finds cl.572.231 to be clear; at the time of decision the applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study. Giving cl.572.222 a literal construction contended for by Mr Hughan would be in conflict with the clearly stated meaning and purpose in cl.572.231, and not facilitate an assessment under reg.1.40A.
52. The Court refers to the Explanatory Memorandum of Statutory Rules 2001 No 162 that includes the following statement:
    • The purpose of new subclause 572.222 is to ensure that an applicant provides evidence that he or she is enrolled, by producing a certificate of enrolment, in a full-time course of study or training that is not a suspended education provider. (emphasis added)

.222 is a time of decision requirement, to “ensure that the applicant provides evidence that he or she is enrolled...in a full-time course of study” (emphasis added).

Section 65 provides for the Minister to grant a visa, if satisfied that the criteria for a visa are met. The criteria referred to are those in force when the Minister makes his decision Quarm v Minister for Immigration and Citizenship and Anor [2008] FCA 1156; (2008) 171 FCR 307 at [27].

53. The Tribunal then found, correctly, that cl.572.222 should not be read literally as it would not conform with the legislative intent as ascertained from the provisions of the statute including the policy that may be discerned from those provisions Cooper Brookes (Wollongong) Proprietary Limited v Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 per Mason and Wilson JJ at 320.

The intent of 572.222 and 572.231 is clearly to ensure that at the time of decision the applicant is enrolled in, or has a current offer to enrol in, an approved course of study.

54. The ordinary literal sense of the words (in 572.222) would produce inconsistency with 572.231 which is clearly expressed. Ibid 320.5 citing Dixon J in Broken Hill South Ltd v Commissioner of Taxation (NSW) [1937] HCA 4; (1937) 56 CLR 337. That result is to be avoided. The Court therefore does not give 572.222 its literal meaning.
55. There is a meaning that can be given to 572.222 that is consistent with 572.231, being that the applicant gives to the Minister a certificate of enrolment, (then from 572.231) that shows that he is enrolled, or is the subject of a current offer of enrolment, in a course of study at the time of decision (cl.572.22)

That is the construction the Court gives to cls.572.222 and 572.231.

The Court finds that inadvertence has resulted in 572.222 not being expressed clearly in this way. The Court finds the construction above to be “in substance the provision the Parliament would have made” had it turned its mind to it SZJGV & Anor v Minister for Immigration and Citizenship [2009] HCA 40 at [9].

56. The MRT referred to the academic transcripts and certificate from the Carrick Institute.
57. The applicant gave evidence that he completed his course on
    9 September 2008.
58. The MRT stated that the Delegate has noted advice from the applicant’s representative that the applicant “completed his studies on
    13 June 2008.” (Court Book 33.9)
59. The requirement in cl.572.222 was for a CoE relating to the applicant undertaking a course of study. The CoE before the Delegate showed a course end date of 20 March 2008. (Court Book 18)
60. The MRT noted the two CoE’s with course end dates of
    20 March 2008 and 13 June 2008.
61. The MRT stated that the applicant must give the Minister (or Delegate) a CoE relating to the applicant undertaking an acceptable course at the date of decision. The Tribunal found that he had not provided this evidence. Although the applicant provided two confirmations of enrolment, the information before the Delegate indicated that these were not for current or proposed future courses. (Court Book 95.5)

The latest end date was 13 June 2008 and the Delegate’s decision was made on 2 September 2008.

62. The Tribunal’s finding that the applicant had not provided evidence of enrolment in current or proposed future courses was a finding of fact that was open on the material before the MRT.

In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:

“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.”

The Court refers to following the decisions:

“The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence: Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA [1998] FCA 1126; (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA [2001] FCA 679; (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [137].”

Chen Xin He v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, RD Nicholson J, 23 November 1995, unreported) at [24]:

“It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible.”

63. The MRT noted that there is no decision on whether a certificate of enrolment that is no longer current would satisfy the requirements of cl.572.222 and noted that s.115A (sic “15AA”) of the Acts Interpretation Act 1901 provides that:
    • “In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”

The applicant’s case turns on this question of construction.

64. The MRT decided that on a strictly literal reading of cl.572.222 the clause could be satisfied if the applicant handed a certificate of enrolment to the Minister regardless of whether the certificate was current or had expired. The MRT noted that this would cause problems; First it would be difficult to assess the basis of the visa application without evidence of current enrolment or an offer of enrolment, for the reasons it gives; Secondly the applicant would not meet the requirement of cl.572.231 that the applicant is enrolled in, or is the subject of a current offer of enrolment in a course of study.
65. The Tribunal held that cl.572.222 should not be ready literally
    (Court Book 95.9). Clauses 572.222 and 572.231 are in reg.572.22, which is headed “Criteria to be satisfied at time of decision”. Clause 13 of the Acts Interpretation Act 1901 provides that:
    • “headings...shall be deemed to be part of the Act.”
66. To satisfy cl.572.231 the applicant must be enrolled in or be subject of a current offer of enrolment in, a course of study “at the time of decision.”
67. This is indicative of the purpose of ensuring that the applicant is a student in an approved course, or is subject to an offer to study in an approved course at the time of decision. The MRT found that the purpose of cl.572.222 is to ensure that the applicant provides evidence that he or she is enrolled. An error of law has not been shown. It would be inconsistent with the clear intention of .231 to construe subclause .222 as requiring only that the applicant gives to the Minister a CoE showing that he has been enrolled in an approved course at some time in the past.
68. The purpose of .231 is to require the applicant to be a student at the time of decision, or be subject to an offer at that time to become a student in an approved course. This goes to prove that an applicant is a genuine student.
69. The fact that the applicant had not completed examinations until after the date of decision does not satisfy the requirement to have given the Minister the required current CoE, and was not argued by the applicant to have done so.
70. The MRT found that the requirement that a certificate of enrolment be valid or current is inherent or implied in the wording of cl.572.222. An error or law has not been established in that finding. The Court agrees with the finding by the MRT that words do not have to be written into cl.572.222 to reach that conclusion.
71. The Tribunal found that an applicant is not a genuine student if their enrolment as a student is no longer current because the student has completed the course of study for which the certificate was issued (Court Book 96.2). An error of law has not been shown.
72. Ground one is dismissed.

Ground Two

73. Ground two alleges a breach of s.359AA and s.359A because the Tribunal did not give the applicant before or at the hearing, clear particulars of its conclusion that his failure to provide it with a certificate would be the reason, or part of the reason, for affirming the decision under review.

Arguments for the applicant as to Ground Two

74. Mr Hughan argued that the Tribunal made its decision on the basis of information that came to it from the Department of Immigration that the applicant was not enrolled in a course as at the date of the decision.

The Court finds that a failure to comply with cl.572.231 was not information that the Tribunal considered would be the reason or part of the reason for the Tribunal affirming the decision under review.
Section 359A(1) therefore does not apply to it.

75. Further, the CoE was something that the applicant gave during the process that led to the decision that is under review. Therefore s.359A does not apply to it. [Section 359A(4)(ba)]
76. In any event, the applicant has not shown what information the Department provided to the Tribunal, that allegedly it was required to give notice of to the applicant. The only apparent reference is in the Delegate’s decision at (Court Book 33.9) that
    • “systems records show that Mr Singh is not currently enrolled in a registered course.”

The Court understands that to be referring to the CoE’s. There is nothing to show that the Tribunal was supplied with other information that it considered would be the reason or part of the reason for it affirming the decision under review. Mr Hughan submits that the Tribunal was told by the Department that the applicant had not given the Minister a current certificate of enrolment. That appears to have been told to the Delegate, but not to the Tribunal. In any event the CoE’s were provided by the applicant for the purposes of the review. The information that the applicant was not currently enrolled was given by him, and s.359A(4)(ba) applies.

77. Mr Hughan submits that the Tribunal having decided that the applicant had not given a current CoE, it was incumbent on the Tribunal to tell the applicant and allow him an opportunity to deal with it.
    (Transcript p24, line 17)
78. The Court refers to the decision in SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091 per Justice Cowdroy at [16]-[17] as follows:
    • “In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 which applied the decision of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 the Court held that a Tribunal is not obliged to put to an applicant its own appraisals of the applicant’s evidence unless they are not an obvious and natural appraisal of such material. The meaning of natural and obvious in this context has been considered in numerous decisions: see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100 at 108. In Re Ruddock (in his capacity as Minister for Immigration and Multicultural and Affairs); Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [86] Kirby J said:
      • ‘The extent of the duty to indicate a relevant piece of apparently adverse evidence for comment obviously depends upon the importance that may be attached to that evidence and whether the importance was so obvious that it did not need to be underlined. In a body proceeding by inquisitorial methods, procedural fairness may require bringing the attention of the applicant to critical facts that appear to contradict, or cast doubt on, his or her claim. Where an observation about an applicant's case is one that is obvious and natural to the circumstances that evoked it, it is usually unnecessary for it to be specifically called to notice’.”
    • For similar observations, see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs [2000] FCA 1113; (2000) 103 FCR 539 at 557 and Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 633. Further the Tribunal is not required to give the appellant a running commentary of its reasons: see SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 at [11].
    • “The Court is satisfied that the Tribunal’s determination of the credibility of the appellant and the truthfulness of his claims comprise obvious and natural appraisals of the material and evidence presented to it. Further the Tribunal’s findings based on country information were open to it and there is no obligation to provide the appellant with such material. Accordingly no error of the Tribunal nor of Turner FM exists, and this ground of appeal is dismissed.”

As decided in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 per curiam at [89]: “As SZBEL makes clear (at [48]) the RRT is not obliged to provide ‘a running commentary upon what it thinks about the evidence that is given’”.

79. As stated in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 at [206] per Allsop J:
    • “Information does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54], Paul at [95] and VAF at [24]. In this respect, it is relevant to recall the root of the word ‘information’: that of which one has been told or apprised, or informed. The distinction can become fine: Paul at [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought processes and determination are not information does not mean they are not relevant to the operation of s.424A. The thought processes of the Tribunal may reveal the relevance of information for s.424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s.424A(1)(a), (b) or (c).”
80. Mr Hughan referred to the decision in Shrestha v Minister for Immigration and Citizenship [2008] FCA 1296 and submits that
    • “it accords with that decision that the Tribunal should have provided the applicant with written notice that it was considering the affirmation of the primary decision by reference to the lack of a then current certificate of enrolment.”

Shrestha involved an application for the same Class TU 572 visa as here. In Shrestha, the visa was refused by the Delegate because the applicant had not provided evidence of his financial capacity...as required by cl.572.223(2). The Tribunal affirmed the decision on those grounds. The decision in Shrestha involved different issues from those in the present matter, and it is of no assistance to the applicant.

81. Mr Hughan referred to the decision in Kiloul v Minister for Immigration and Multicultural Affairs [2006] FCA 1055 as being another recent decision on class 572 visas. He submitted that there the Tribunal viewed its non-satisfaction with the evidence, as requiring notice under s.359A. That is not evident from a reading of the decision of the Court. The Court did not reach that conclusion. That case involved a failure to meet the requirement that the applicant have funds to meet certain prescribed costs within cl.572.223. Mr Hughan did not make submissions as to what assistance that decision is to the applicant here, and the Court is unable to discern of what assistance that decision could be to the applicant.

Arguments for the first respondent as to Ground Two

82. Mr Felman submits that no information was identified that would trigger s.359A (Court Book 38, line 25). The Court agrees.
83. Mr Felman submits, and the Court accepts, that the applicant provided the CoE’s during the process that led to the decision under review and they are covered by s.359A(4)(ba).
84. Mr Felman submits, and the Court accepts, that if it was the appraisal that the CoE’s were not current that is alleged to be covered by s.359A, that is not “information” covered by s.359A. See SZEEU (supra).
85. The Court refers to the following passages in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]:
    • “Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”
      • does not encompass the Tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
    • If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”
86. Mr Felman submits, and the Court accepts that a lack of information is not “information” covered by s.359A. If it is an appraisal as to a lack of information, that also is not covered. (SZBYR supra)
87. Mr Felman submits, and the Court accepts, that the Tribunal’s appraisal that the applicant did not comply with .231, is not covered by s.359A(1). However as stated earlier, the Tribunal did not rely on a failure to comply with .231 as a reason, or part of the reason, for affirming the decision of the Delegate.
88. Mr Felman submits correctly that s.359AA does not impose a separate obligation on the Tribunal.
89. “Section 359AA does not itself impose a separate obligation on the Tribunal with which a failure to comply results in jurisdictional error.” “SZKCQ v Minister for Immigration and Citizenship [2009] FCA 78 at [19].

Arguments for the applicant in reply

90. Mr Hughan argued that the correct question as to .222 is
    • “has the applicant given the Minister a CoE relating to the applicant undertaking a course of study?”

As decided above, the requirement is for a CoE that is current at the date of decision.

91. Mr Hughan seeks assistance from cl.1.222 of Schedule 1 which provides for evidence that the applicant is enrolled in a registered
    full-time course of study [r.1222(3)(c)(i)].

The Court finds that that provision does not impact on the time of decision criteria in 572.222

92. The Court notes that the grounds in the Further and Better Particulars do not contain the allegation in the Application that the Tribunal failed to accord to the applicant “procedural fairness generally”. The Court refers to s.357A(1) of the Act that provides that Division 5 is an exhaustive statement of the natural justice hearing rule...in relation to matters it deals with. Apart from the allegations of a breach of s.359AA and s.359A there are no allegations of a breach of Division 5. The effect of s.357A(1) is to preclude the Tribunal from common law obligations of procedural fairness. SZMKG v Minister for Immigration and Citizenship [2009] FCAFC 99 at [49] and [50].
93. Ground two is dismissed.
94. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
95. The application is dismissed.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Erin Firns

Date: 10 December 2009