Fan Fan v Minister for Immigration & Anor [2009] FMCA 123 (26 February 2009)

Last Updated: 27 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAN FAN v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 123

MIGRATION – VISA – Student (Temporary) (Class TU) visa – IELTS test – date of application for visa – time of decision – IELTS test must be taken less than 2 years before the date of the application for the visa – no reviewable error.

Migration Act 1958 (Cth) ss.474, 476 Migration Regulations 1994 (Cth) Regs. 1.03, 1.41, 1.44, 2.07AO, Schedule 2, cl. 572.223, Schedule 5A, item 5A404

Li v Minister for Immigration (2008) 219 FLR 59; [2008] FMCA 941 Bhattarai v Minister for Immigration [2008] FMCA 1709

Applicant:

FAN FAN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3131 of 2008

Judgment of:

Scarlett FM

Hearing date:

11 February 2009

Date of Last Submission:

11 February 2009

Delivered at:

Sydney

Delivered on:

26 February 2009

REPRESENTATION

Applicant:

Appeared in person

Solicitors for the Applicant:

No solicitors on the record

Counsel for the First Respondent

Mr Potts

Solicitors for the Respondents

Clayton Utz

ORDERS

(1) The Application is dismissed.
(2) The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
(3) I allow six (6) months to pay.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3131 of 2008

FAN FAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant asks the Court to review a decision of the Migration Review Tribunal signed on 7th November 2008 and handed down on 10th November, affirming the decision of a delegate of the Minister not to grant him a Student (Temporary) (Class TU) visa.
2. He claims that the situation that happened to him was out of his control for a variety of reasons. He also complains that another Tribunal member in another, similar, case ruled in favour of the Applicant and the Tribunal should be consistent in its decisions.

Background

3. The Applicant is a citizen of China. He applied for a Student (Temporary) (Class TU) visa on 5th April 2007. His application was refused on 23rd November 2007.
4. The delegate stated:
   • The applicant did not satisfy Regulation 572.223(2)(a)(i)(A) for the following reasons:
   • The applicant has not provided evidence that he met the English Language proficiency requirements of Schedule 5A at time of lodgement.[1]
5. The delegate noted that the Applicant did not satisfy the requirements of Item 5A404 of Schedule 5A.

Application to the Migration Review Tribunal

6. On 21st December 2007 the Applicant applied to the Migration Review Tribunal for review of the delegate’s decision. He nominated his migration agent, Linda Yu, as his representative to act on his behalf. The Tribunal wrote to Ms Yu on 28th August 2008, inviting the Applicant to attend a hearing of the Tribunal on 7th November 2008. However, the letter also said:
   • The Tribunal notes that your application was refused because you had not provided evidence that you met the English Language proficiency requirements of Schedule 5A, specifically those of clause 5A404, which were set out in the record of decision which you enclosed with your application to the Tribunal. If you have evidence of your English language proficiency which satisfies the relevant provisions, and you submit that evidence to the Tribunal, it may not be necessary for the hearing to go ahead. However, on the basis of the evidence now before the Tribunal, it is necessary to have a hearing.[2]
7. The Applicant’s agent replied that same day, indicating that the Applicant wished to appear at the hearing. The agent also forwarded an IELTS (International English Language Testing System) Test Report form dated 26/10/2007, showing that the Applicant had attended a test on 13th Oct 2007 and achieved an Overall Band Score of 5.5. That document was received by the Tribunal on 29th August. This Test Report does not seem to have been provided to the Minister’s delegate.
8. On 8th September 2009 the agent sent a number of other documents to the Tribunal in support of the Applicant’s case.
9. The Applicant attended the Tribunal hearing on 7th November 2009 and gave evidence with the assistance of an interpreter in the Mandarin language. The Applicant’s migration agent, Ms Linda Yu, accompanied the Applicant to the hearing.
10. The Tribunal signed its decision the same day and forwarded a copy of the Decision Record to the applicant’s migration agent under cover of a letter dated 10th November.

The MRT decision

11. The Tribunal stated that the criteria for a Subclass 572 Vocational Education and Training Sector visa, which was the subclass of Student (Temporary) (Class TU) visa for which the applicant had applied, are set out in Part 572 of Schedule 2 to the Regulations. The criterion is set out in cl. 572.223, which provides in cl. 572.223(1) that:
    • The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
12. The Tribunal stated, and noted that the Applicant’s agent agreed,[3] that the relevant part of cl.572.223 that applied to the Applicant was cl.572.223(2)(a), which says:
    • (a) for an applicant who is designated under regulation 2.07.AO:
      • (i) the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 572 and the assessment level to which the applicant is subject, in relation to:
        • (A) the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake; and
        • (B) the financial capacity of the applicant to undertake each of those courses of study without contravening any condition of the visa relating to work; and
        • (C) other requirements under Schedule 5A; and
      • (ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
        • (A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
        • (B) any other relevant matter; or...
13. The Tribunal noted that the Applicant had to provide evidence in accordance with the requirements in Schedule 5A to the Regulations, the relevant clause being dictated by the assessment level to which the Applicant is subject.
14. The Tribunal noted that Regulation 1.41 of the Migration Regulations provides that the Minister must specify by Gazette Notice the Assessment Level for English language proficiency for holders of foreign passports in relation to each subclass of Student visa. The Assessment Level for an applicant for a Subclass 572 visa who holds a Chinese passport is Assessment Level 4.
15. Division 2 of part 4 of Schedule 5A to the Regulations sets out that cl.5A404 of Schedule 5A specifies the requirements for Assessment Level 4 for Subclass 572. The relevant subclauses are 5A404 (a) and (b), which read:
    • 5A404 The applicant must give evidence that one of the following applies:
      • (a) the applicant:
        • (i) will not undertake an ELICOS[4] before commencing his or her principal course; and
        • (ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5;
      • (b) the applicant:
        • (i) will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course; and
        • (ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.0.
16. The Applicant’s migration agent had provided to the Tribunal on 29th August 2008 the IELTS Test Report form showing the Applicant had achieved an Overall Band Score of 5.5 in a test conducted on 13th October 2007. The Tribunal stated:
    • At the Tribunal’s request, an officer contacted the applicant’s agent and advised her that the results of the IELTS test would not be appropriate evidence in relation to cl. 5A404(a) or (b), as the test was taken after the visa application date. The agent was advised that, in these circumstances, the hearing would proceed.[5]
17. The Tribunal discussed the issue with the Applicant at the hearing, according to the Tribunal Decision Record:
    • [22] ...The Tribunal pointed out that cl.573.223(a) required the applicant to give evidence of his English language proficiency, in accordance with the relevant provisions of Schedule 5A, in this case, cl. 5A404. It was aware that the applicant had taken an IELTS test in late 2007 but, given the provisions of subclauses (a) and (b) of cl. 5A404, the results of an IELTS test conducted after the date of application were not relevant evidence. It asked the applicant if he believed he satisfied any of the requirements of cl. 5A404 and, if so, what evidence he had to support that belief.
    • [23] The applicant said that the delegate invited him to sit for an IELTS test after the date of the application and had led him to believe that the results of such a test would be acceptable. The Tribunal said it was aware that some decision-makers had taken the view that such results were acceptable, but it did not consider that view was defensible, given the precise wording of the relevant subclauses.[6]
18. The Tribunal noted that the Applicant said that he had not taken any IELTS test between 5th April 2005 and 5th April 2007, because he had taken a test in 2004 and had been successful. He had then gone to university and had not needed to take another test. The Tribunal notes that the Applicant then said:
    • When he lodged the application which gave rise to the decision under review, he had not checked on the requirements and had not obtained any expert advice. Consequently, he did sit for a further test until requested to do so in late 2007 by the delegate.[7]
19. The Tribunal then discussed with the Applicant details of his previous tertiary study since he had arrived in Australia and considered whether he met the requirements of paragraph (c), sub-paragraphs (d)(i) to (vi), and paragraphs (e) and (f) of cl. 5A404.
20. The Applicant’s agent referred the Tribunal to another, earlier, Tribunal decision where an applicant in a similar position had been successful:
    • In that decision (Tribunal reference 0800901), the Tribunal (differently constituted) had concluded that the results of an IELTS taken after the date of visa application could be considered as relevant in relation to cl. 5A404. The Tribunal said it had previously indicated that it was aware that other decision-makers had adopted such a view, but considered that view to be wrong. It did not believe it could be bound by that decision.[8]
21. The Tribunal found that, at the time of the decision, the Applicant held an eligible passport issued by the People’s Republic of China and thus he was subject to consideration under Assessment Level 4. The Tribunal found that, because the Applicant had not taken any IELTS test “less than 2 years before the date of the application”, he could not satisfy cl.5A404(a) or (b). The Tribunal went on to say:
    • The Tribunal is aware that, in the past, some decision-makers have concluded that the results of a test taken after the date of application are acceptable for this purpose. However, it considers the wording of the two provisions excludes this interpretation.[9]
22. The Tribunal went on to find that the Applicant did not satisfy cl. 5A404(c), 5A404(d)(iii), 5A404(e) or 5A404(f). The Applicant had not given evidence in accordance with the requirements of Schedule 5A for Subclass 572 and Assessment Level 4 in relation to his English language proficiency for the purposes of the courses of study that he proposed to undertake. Accordingly, he did not satisfy the requirements of cl. 572.223(2)(a)(i)(A) and, therefore, he did not satisfy the requirements of cl. 572.223(2)(a). The Tribunal had already found that cl.572.223(2)(b) was not applicable because the Applicant was not a person designated under regulation 2.07AO. Accordingly, the Tribunal found that the Applicant did not meet the requirements of cl.572.223(2) as a whole and, as he had not provided any evidence that he met the criteria for any of the subclasses of Student (Temporary) (Class TU) visa, the delegate’s decision had to be affirmed.

Application for Judicial Review

23. In his application to this Court, the Applicant sets out under “Grounds of Application” the following:
    • 1. I disagree the decision made by member of MRT;
    • 2. The situation happened to me was out of my control.
24. Under “Orders sought by Applicant” he sets out the following:
    • 1. I have provided the decision made by other member named Bronwyn Connolly (0800901 [MRTA 580) to my member, the case was similar to my application. Mr Bruce MacCarthy did not agree.
    • 2. In my previous study, I have not completed degree because of misleading of information provided by University of Sydney, my sickness and mistake at Administration in UTS, and lectures’ strong accent and my friend’s death in CQU.
    • 3. My last education provided was Australian School of Business & Technology. It was closed the business on 05/09/2008. It was not my fault.
25. The Applicant did not file a written outline of submissions but he attended Court on 11th February and made oral submissions. He told the Court that it was misleading, because he had not been told that he should provide an IELTS test when he submitted his application. He said that another student in a similar situation had been successful before the Migration Review Tribunal and he believed that the Tribunal should be consistent in its decisions.
26. Counsel for the Minister, Mr Potts, submitted that even though the Applicant felt that he was misled by officer of the Department of Immigration and Citizenship, this was not a ground of review, nor had any evidence been put that the Applicant had been misled. Even if that were the case, this would not affect the validity of the decision.
27. The central issue, he submitted, was whether the Migration Review Tribunal correctly interpreted the regulation. The issue is whether an Applicant can comply by submitting the results of an IELTS test that was taken after the date of the application.
28. Counsel for the Minister referred the Court to the decision of Barnes FM in Li v Minister for Immigration[10], where her Honour held at [50]:
    • No discretion is given to the decision maker in relation to the evidence required as to English language proficiency.
29. Her Honour went on to hold at [54]:
    • However the Tribunal is not afforded a discretion to determine whether the applicant has demonstrated English proficiency by a method other than that provided for in the applicable regulation.
30. Mr Potts conceded that the submission being made on behalf of the Minister in this case was contrary to the conclusion reached by Smith FM in Bhattarai v Minister for Immigration[11], where his Honour said at [9]:
    • In arriving at that conclusion, the Tribunal took into account not only his lower IELTS test result in Nepal, but also that Mr Bhattarai had attempted the test in Australia and achieved 4.5. This test was taken on 28 June 2008, after the visa application and while the matter was pending before the Tribunal. Although it is not clear from the language of these criteria, I accept the submission of the Minister that it is possible for that test to be undertaken during the pendency of the proceeding.
31. It is submitted on behalf of the Minister that this decision should not be followed and that the clear language of cl.5A404(a) and (b) must prevail. Clause 5A404(a) and (b) clearly require the IELTS test to be taken “before” the visa application. Mr Potts submitted that Smith FM did not have the benefit of any contested argument on that point as the Applicant was not legally represented. In any event the Applicant had only received an Overall Band Score of 4.5 in that particular test.
32. Whilst it has been argued that this is a “time of decision” criterion, this only tells the Court that this is the time at which one must examine whether there is evidence that the Applicant meets the criteria. Mr Potts submitted that clause 5A404(a)(ii) and 5A404(b)(ii) require an IELTS test to be taken within a specific window that has a particular end date. That end date is the date of the application. The word “application” can only mean the visa application and not the application to the Migration Review Tribunal.
33. Mr Potts also noted that the Applicant was frustrated that there are seemingly inconsistent decisions of the Migration Review Tribunal and concluded that there is a need for consistency.

Conclusions

34. The meanings of cl. 573.223 of Schedule 2 and cl.5A404(a) and (b) are clear and unambiguous. The confusion that seems to have arisen with applicants and, perhaps, migration agents, would appear to have come from the adoption of a practice within the Migration Review Tribunal that does not follow the regulations.
35. Clause 573.223 of Schedule 2 sets out “Criteria to be satisfied at time of decision”. This may be where the confusion has arisen. What it means, and all that it means, is that the decision-maker must be satisfied that the Applicant has provided evidence of various mandatory requirements in subclause (2), including the Applicant’s English language proficiency. The purpose of the clause is set out in subclause (1), which provides:
    • The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
36. One of those requirements is that the Applicant’s English language proficiency meets a particular standard. Subclause (2) says, relevantly:

An applicant meets the requirements of this subclause if:

(a) for an applicant who is not a person designated under regulation 2.07.AO:

• (i) the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 573 and the assessment level to which the applicant is subject, in relation to:
  • (A) the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake; and...

37. That, then, is the requirement so far as providing evidence of English language proficiency is concerned. At the time of making the decision to grant or refuse the visa, the decision-maker must be satisfied that there is evidence of the Applicant’s English language proficiency. If there is no such evidence at the time of making the decision, the application will fail. It matters not whether the decision-maker is the Minister’s delegate or the Migration Review Tribunal; if there is no evidence that the Applicant has met the requirements in Schedule 5A for Subclass 573, the application is doomed to fail.
38. Thus, in the present case, there is no evidence that the delegate ever saw the IELTS test report form dated 26/10/2007 that the Applicant’s agent submitted to the Tribunal under cover of her letter of 28th August 2008. The delegate refused the application on 23rd November 2007 because “The applicant has not provided evidence that he met the English Language proficiency requirements of Schedule 5A at time of lodgement”.[12]
39. The delegate had no option but to refuse the application for a student visa and correctly cited the failure by the Applicant to provide the necessary evidence.
40. Subclause 573.223(2) requires evidence at the time of decision that the Applicant meets the standard of English language proficiency specified in Schedule 5A in accordance with the assessment level which applies to the particular applicant, in this case, level 4. The requirements for Assessment Level 4 are set out in item 5A404 in Division 2 of Part 4 of Schedule 5A. The requirements applicable to this Applicant are 5A404(a) and (b), which say:
    • The applicant must give evidence that one of the following applies:
      • (a) the applicant:
        • (i) will not undertake an ELICOS before commencing his or her principal course; and
        • (ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5;
      • (b) the applicant:
        • (i) will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course; and
        • (ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.0;
41. The meaning of these provisions is clear and unambiguous. The words “the date of the application” can only mean the date of the application for the visa. The date of the application for the visa can only mean the date when the application was lodged at the office of the Department of Immigration and Citizenship.
42. The date of an application is the date when the application is made, not the date when the application is decided. As counsel for the Minister has submitted, “the date of the application” cannot mean the date of the application to the Migration Review Tribunal, because if it did the delegate would never be able to decide any application and every application would have to go to the MRT.
43. The date of the application for the purposes of cl.5A404(a) and (b) means the date when the application was made to the Department.
44. That does not contradict Subclause 573.223, which requires the Minister to be satisfied at the time of the decision. The date of the application, in cl.5A404, is the date by which the IELTS test must be taken. The time of the decision is the time when the Minister must be satisfied that there is evidence of the Applicant’s level of English proficiency.
45. The reason for the two different times can clearly be seen. An applicant sits for an IELTS test on a particular day and either obtains, or does not obtain, the appropriate Overall Band Score. However, the IELTS Test Report Form may not be made available to the applicant until a week or more later. In the present case, the Test Report Form shows that the Applicant sat for his test on 13th October 2007 but the Form is dated 26th October 2007, some 13 days later.
46. It is open to an applicant to sit for an IELTS test on one day and apply for a student visa the next. It is not necessary to produce the IELTS Test Report Form when the application for the visa is lodged. It may not be available. However, it is incumbent on the Applicant to submit that evidence to the Department once it does become available and, in any event, before the decision is made.
47. In this case, the Applicant did not sit for his IELTS test until after he had applied for his visa and appears to have not supplied the Test Report Form to the Department at all. He submitted it to the Tribunal, but, as it was the result of a test conducted after the date of the application, the Tribunal correctly found that it could not be taken into account. The words “an IELTS test that was taken less than 2 years before the date of the application” cannot mean an IELTS test that was taken after the date of the application.
48. The Tribunal did not fall into jurisdictional error and the Tribunal decision is a privative clause decision as defined by subsection 474(2) of the Migration Act. The decision is not subject to prohibition, mandamus, injunction, declaration or certiorari (s.474(1)) and the application will be dismissed with costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 25 February 2009

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[1] Court Book 21
[2] Court Book 42
[3] Court Book 80 at paragraph [22]
[4] English Language Intensive Course for Overseas Students, reg. 1.03
[5] Paragraph [18], Court Book 80
[6] Paragraphs [22] and [23], Court Book 80-81
[7] Paragraph [25], Court Book 81
[8] Paragraph [37], Court Book 82-83
[9] Paragraph [42], Court Book 83
[10] (2008) 219 FLR 59; [2008] FMCA 941
[11] [2008] FMCA 1709
[12] Court Book 21