Bhatt v Minister for Immigration & Anor [2009] FMCA 219 (20 March 2009)

Last Updated: 23 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BHATT v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 219

MIGRATION – VISA – Student (Temporary) (Class TU) visa – IELTS test – where applicant had not provided evidence that he had achieved the required standard of English language proficiency for the purpose of his proposed course of study – where applicant had not undertaken an IELTS test – where applicant had applied to take an IELTS test but the test had not been held – whether the requirement in item 5A404(a) and item 5A404(b) of Schedule 5A of the Migration Regulations 1994 (Cth) that an applicant achieve an Overall Band Score in an IELTS test “taken less than 2 years before the date of application” is capable of being satisfied by an IELTS test taken between the date of application and the date of the Tribunal’s decision – no jurisdictional error.

Migration Act 1958 (Cth) ss.359, 474, 476 Migration Regulations 1994 (Cth) Regs.1.03, 2.07AO, Schedule 2, Part 572, Schedule 5A, item 5A404

Fan Fan v Minister for Immigration and Citizenship [2009] FMCA 123 Shibly v Minister for Immigration and Citizenship [2009] FMCA 193 Ruykys v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 538; [2003] FCA 433 Shah v Minister for Immigration and Citizenship [2009] FMCA 108

Applicant:

PRANAVKUMAR ROHITBAI BHATT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3289 of 2008

Judgment of:

Scarlett FM

Hearing date:

4 March 2009

Date of Last Submission:

4 March 2009

Delivered at:

Sydney

Delivered on:

20 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr Reynolds

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondents:

Mr Reilly

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The Application is dismissed.
(2) The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,500.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3289 of 2008

PRANAVKUMAR ROHITBAI BHATT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is another application to review a decision of the Migration Review Tribunal where the Tribunal has affirmed a decision to refuse the grant of a Student (Temporary) (Class TU) visa because the applicant had not provided evidence in accordance with the requirements in Schedule 5A for Subclass 572 and Assessment Level 4 in relation to his proficiency in the English language.
2. The Court has recently considered the issues in this matter in Fan Fan v Minister for Immigration and Citizenship[1] and Shibly v Minister for Immigration and Citizenship[2].

Background

3. The applicant applied for a Student (Temporary) (Class TU) visa on 5th April 2007. A delegate of the Minister refused his application for a visa on 22nd October 2007. The delegate stated that the applicant did not satisfy regulation 572.223(2)(a)(i)(A) for this reason:
   • The applicant has been unable to provide evidence that his English language proficiency meets the requirement of the legislation, as required under schedule 5A404, for the assessment level to which he is subject.[3]
4. The applicant applied to the Migration Review Tribunal for a review of the delegate’s decision on 13th November 2007.

Application to the Migration Review Tribunal

5. The Tribunal wrote to the applicant on 18th August 2008, inviting him to provide information in writing under the provisions of s 359(2) of the Migration Act. The Tribunal asked the applicant to provide this additional information in writing by 24th September 2008:
   • Evidence that you meet the English language proficiency requirements set out in clause 5A404 of Schedule 5A of the Migration Regulations 1994, which is attached. For example, if clause 5A404(a) is relevant to your circumstances, please provide evidence of having achieved between 5 April 2005 and 5 April 2007, an overall band score of at least 5.5 in an IELTS[4] test.[5]
6. The Tribunal’s letter was returned unclaimed. The applicant later telephoned the Tribunal and received a copy of the letter by hand on 2nd September 2009.
7. The applicant wrote to the Tribunal on 11th September 2008, asking for an extension of time, saying:
   • Now, I got IELTS test date on 15 November 2008. So, kindly request to consider my extention(sic) then...[6]
8. The applicant provided to the Tribunal a copy of an invoice for an IELTS test and a written confirmation of his IELTS test on 15th November 2008.
9. The Tribunal refused to grant an extension of time and informed the applicant in a series of telephone conversations and also by mail on 24th September 2009.[7] On that same day, the Tribunal invited the applicant to attend a hearing to take place on 10th October 2008.
10. The Tribunal also wrote to the applicant on 24th September 2008, seeking further information. The information sought was:
    1. a full copy of the applicant’s passport; and
    2. evidence of all his studies in Australia, including an academic transcript.
11. The Tribunal’s letter asked the applicant to provide that information by 8th October 2008.[8] In a letter dated 8th October 2008 the applicant requested an extension of time to provide the academic transcript required, as Wollongong College was closed due to the holidays and he stated he needed a further two weeks to obtain the document. He provided a Certificate of Attainment and a Leavers Report.
12. On 10th October 2008 one Ross McAlear from the Illawarra business College telephoned the Tribunal about the applicant’s request for an academic transcript. He is recorded as saying:
    • ...He explained that during the holidays the college had been undergoing renovations and that no one had accessed the emails regularly. He said he had just come across the RA’s[9] request and wished to phone and apologise for the delay. He said that someone in his office would organise for the information to be provided to the RA and Tribunal early next week. He quoted the RA’s email and confirmed the Tribunal’s fax number. He emphasised that he wished to apologise to the Tribunal and hoped that the RA had not been disadvantaged.[10]
13. Despite these requests, the Tribunal refused the application for an extension of time in a letter dated 10th October 2008. The letter sais in part:
    • The Tribunal has considered the request carefully but has decided not to grant an extension of time for providing the additional information. The Tribunal will consider any information provided to it prior to the finalisation of your case.[11]
14. The applicant attended the Tribunal hearing on 10th October and gave evidence without the assistance of an interpreter.
15. The Tribunal notes that the applicant telephoned on 27th October to explain that he still had not received his academic transcript from the college. The Tribunal officer stated in a file note:
    • I noted that he had been given until 24/10/08 to provide this transcript and mentioned that a representative of his college had called me some weeks ago and said that a transcript would be made available to him (the RA) as soon as possible.[12]
16. The applicant telephoned the Tribunal on 29th October and advised that the academic transcript would be provided “within the next two days”.[13]
17. The applicant again telephoned the Tribunal on 7th November 2008 to ask about the Tribunal decision. The Tribunal officer noted:
    • The review applicant confirmed that he had not yet provided the transcript.[14]
18. The Tribunal handed down its decision on 14th November 2008, affirming the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

The Migration Review Tribunal decision

19. In its Findings and Reasons, the Tribunal found that the applicant was not a person designated under r.2.07AO of the Migration Regulations and that at the time the applicant held an eligible passport of India. The Tribunal found the applicant to be subject to consideration under Assessment Level 4.
20. The Tribunal proceeded to consider the Schedule 5A requirements, noting that the delegate had found that the applicant did not meet the requirements of cl. 572.223(2)(a)(i)(A) as he did not have the requisite English language proficiency as specified in cl. (or item) 5A404.
21. The Tribunal went on to find:
    • The applicant confirmed in his submission to the Tribunal of 11 September 2008 and in his oral evidence that he had not undertaken an IELTS test before he applied for the Student visa as he thought his English for Academic Purposes course was sufficient and also because he was informed by DIAC that he did not need to undertake an IELTS course. There is no evidence before the Tribunal that the applicant has completed an IELTS test less than 2 years before the date of application.[15]
22. The Tribunal noted that the applicant had provided evidence that he had registered to undertake an IELTS test in November 2008 and said:
    30. The Tribunal decided not to await the results of that test because, in the view of the Tribunal, such test would not meet the requirements of cl. 5A404(a) and (b) because such a test would not be taken less than 2 years before the date of application. Rather it would be taken after the application.
    31. The wording of the application – that a test must be taken less than 2 years before the day of the application – requires, in the Tribunal’s view, the test to have been conducted within a specified period before the application is made. The past tense in the reference to the test being taken, at the time of application, also implies that the test must have been conducted before the application and not after the date of the application.[16]
23. The Tribunal stated that an IELTS test undertaken by the applicant in November 2008 could not be considered when determining whether the applicant had achieved the prescribed score in a test taken less than 2 years before the date of application. The Tribunal noted that there were previous Tribunal decisions that took a different view:
    • The Tribunal is mindful that past decisions of the Tribunal reflect a different approach. The Tribunal is of the view that such decisions are of no precedential value and while a consistency of approach is desirable, the Tribunal formed the view that the above interpretation is the correct and preferable one.[17]
24. The Tribunal was not satisfied that the applicant met the requirements of item 5A404(a) or (b) because he had not provided the evidence of having obtained the necessary score in an IELTS test.
25. The Tribunal then considered whether the applicant met the requirements of items 5A404(c), (d)(i) and (ii), (iii), (iv)(v) and (vi), (e) of (f), and decided that, for various reasons, he did not.
26. The Tribunal then stated:
    • On the basis of the above, the Tribunal finds that the applicant has not given the Tribunal evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and Assessment Level 4 to which he is subject, in relation to the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake (cl. 5A404). Accordingly, the applicant does not satisfy the requirements of cl. 572.223(2)(a)(i)(A).[18]
27. The Tribunal found that the applicant had not met an essential requirement of cl.572.223 and had not provided any evidence of meeting the criteria for any other Student (Temporary) (Class TU) subclasses. Accordingly, the Tribunal affirmed the decision under review.

Application for Judicial Review

28. The applicant filed an application and an affidavit in support on 11th December 2008. He filed an amended application on 24th February 2009. In his amended application, the applicant seeks the issue of writs of certiorari, mandamus and prohibition. He claims that the Tribunal committed jurisdictional error by applying the wrong test.
29. The particulars of the applicant’s claim are that:
    1. In rejecting the application, the Tribunal held that the applicant did not satisfy regulation 572.223(2)(a)(i)(A) of the Migration Regulations which required the applicant to comply with clauses 5A404(a) and (b) of Schedule 5A of the Regulations.
    2. In making that finding, to the extent that the Tribunal had regard to the applicant’s International English Language Testing System (IELTS) result, the Tribunal adopted a construction of clauses 5A404(a) and (b0 to the effect that these provisions could never be satisfied by an IELTS test taken after the date of the visa application.
    100. This constituted an erroneous construction of regulation 572.223(2)(a)(i)(A) and clauses 5A404(a) and (b) of Schedule 5A because an IELTS test taken between the date of the visa application and date of decision was capable of satisfying those provisions, correctly construed.
    4. In applying an erroneous construction of the regulations, the Tribunal applied the wrong test and its decision was vitiated by jurisdictional error.
30. The applicant filed an outline of submissions on 24th February 2009.

Applicant’s Submissions

31. Mr Reynolds of counsel appeared for the applicant and submitted that the issue for determination was whether the Tribunal erred when it concluded that the phrase “taken less than 2 years before the date of application” in item 5A404(a) and (b) of Schedule 5A required the IELTS test to be taken prior to the date of application. He submitted that this construction was erroneous and led the Tribunal into jurisdictional error. He submitted that the words 2 years before the date of application” denote a single point in time and the operative phrase “taken less than” precludes any test taken prior or equal to that point in time. Absent is any limitation as to how recent the test can be.
32. The submission is that 2 years before the date of application marks the start point of the time period but the date of application itself is not the endpoint. Thus, Mr Reynolds submitted:
    1. a test taken more than 2 years before the date of the application would not comply;
    2. a test taken 2 years before the date of application would not comply; but
    100. a test taken less than 2 years before the date of application and at any time thereafter would comply.
33. Mr Reynolds submitted that an IELTS test sat after the date of the application cannot be more than 2 years before the date of application, nor can it be equal to 2 years before the date of application, so it can only be less than 2 years before the date of application. The words have a plain meaning and there is no ambiguity.
34. Counsel for the applicant also referred to the decision of Smith FM in Bhattarai v Minister for Immigration[19], where his Honour said at [9]:
    • 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 currency of the proceeding.
35. It is submitted that the Minister was correct in making that concession and acknowledging the correctness of the construction advanced by the applicant in the present case.

The First Respondent’s Submissions

36. Mr Reilly of counsel, who appeared for the Minister, submitted that there is no ambiguity in item 5A404(a). The wording of 5A404(a) requires the IELTS test to have been conducted before the application for the visa is made. There is no reason to interpret the word “before” in item 5A404(a) in other than its natural meaning of prior to in time (see Ruykys v Minister for Immigration and Multicultural and Indigenous Affairs[20] at [16]). The word “application” plainly refers to the application for the visa.
37. Thus, it is submitted that it is impossible to interpret the reference to the IELTS test being ‘taken less than 2 years before the date of the application” as other than meaning that the IELTS test must be taken some time in the period commencing 2 years before the date of application for the visa and ending on that date. If it was intended that the test could be taken after the date of application for the visa then the item could have said so.
38. Counsel for the Minister submitted that the conclusion reached by the Court in Bhattarai v Minister for Immigration at [9] does not represent the view of the Minister and is incorrect.

Conclusions

39. There is no conflict between cl. 573.223 of Schedule 2 and item 5A404 of Schedule 5A. There is no ambiguity in the meaning of item 5A404.
40. Clause 573.223 sets out criteria that must be satisfied at the time of the decision whether or not to grant the visa. Subclause 573.223(2)(a)(i)(A) requires the applicant to give 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 the applicant’s English language proficiency for the purposes of each course of study that the applicant proposes to undertake.
41. The ordinary English meaning of this subclause is clear. At the time of decision, the applicant must have provided evidence of his or her English language proficiency. It is the evidence that must be provided at the time of decision. The applicant is not required to provide that evidence at the time of application.
42. The reason for this is clear. Where an applicant undergoes an IELTS test, the Test Report Form is not usually available on the date of the test. It is provided later. It is not uncommon for the Test Report Form to be produced ten days to a fortnight after the day when the applicant sat for the IELTS test (Shah v Minister for Immigration and Anor[21] at [25]; Fan Fan v Minister for Immigration and Citizenship at [16] and [38]; Shibly v Minister for Immigration and Citizenship at [43]).
43. Thus, an applicant who has completed an IELTS test but has not obtained the Test Report Form can still submit an application for a student visa. As long as he or she produces the Test Report Form, i.e. the evidence, before the date of decision, the requirement of Subclause 573.223(2)(a)(i)(A) is met.
44. The ordinary English meaning of item 5A404(a) is clear. The applicant must give evidence that he or she will not undertake an ELICOS (English Language Intensive Course for Overseas Students[22]) before commencing his or her principal course and has achieved in an IELTS test that was taken less than 2 years before the date of the application and Overall Band Score of at least 5.5.
45. There is no ambiguity. As Mansfield J said in Ruykys v Minister for Immigration and Multicultural and Indigenous Affairs at [16]:
    • The word “before’ has the ordinary and natural meaning of “in time preceding; ‘previously” or “previously to”.
46. Contrary to the applicant’s submission, an IELTS test sat after the date of application cannot be a test sat “less than 2 years before the date of application”. It is a test for which the applicant sat after the date of application.
47. In order to make it quite clear, if an applicant sits for an LELTS test after the date of application, the applicant has not sat for the test “less than 2 years before the date of application” or any time before the date of application.
48. The time limit imposed by items 5A404(a) and 5A404(b) has both a start point and an en point. The start point is a point of time two years before the date of application. The end point is the date of application.
49. Provided that the applicant sits for the test and obtains the requisite Overall Band Score:
    1. at any time after 2 years before the date of application; and
    2. at any time before the date of application,

then the applicant has met the requirement of items 5A404(a) or (b).

50. In order to meet the requirement of Subclause 573.223 (2)(a)(i)(A), the applicant must provide to the Minister evidence of having successfully completed the test by the date of decision.
51. Once it is understood that item 5A404 requires the IELTS test to be successfully completed less than two years before the date of application for the visa, and that Subclause 573.223(2)(a)(i)(A) requires the evidence of successfully completing the test to be provided before the date of decision, there is no ambiguity at all.
52. The logic of the provisions is easily ascertained. Subclause 573.223(1) requires the Minister to be satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
53. One of the requirements is that the applicant must have the requisite degree of proficiency in the English language. If the applicant’s proposition were to be accepted, an applicant could not only apply for a visa without providing evidence of having successfully completed an IELTS test, but could do so without having actually sat for such a test. Clearly, the application would be doomed to fail before the delegate.
54. However, on the applicant’s construction of item 5A404, an applicant could then apply for review by the Migration Review Tribunal and subsequently apply to sit for an IELTS test. This would have the result of making an application for review by the MRT a necessary part of the process. An applicant who sits for the IELTS test before applying for the visa and produces evidence of having obtained a satisfactory Overall Band Score will be able to obtain a visa from the delegate and would not need to apply for review by the MRT at all.
55. It is not in the public interest for every application for a student visa to be reviewed by the Migration Review Tribunal. It would lead to expense and delay.
56. In this case the applicant had applied for a student visa on 5th April 2007, but had not sat for an IELTS test. The application was refused on 22nd October 2007 because the applicant had not been able to provide evidence of his proficiency in English as required under cl. 572.223(2)(a)(i)(A) and item 5A404.
57. The applicant applied to the Migration Review Tribunal on 13th November 2007. He did not apply for an IELTS test until 4th September 2008. The test was scheduled for 15th November 2008 but the Tribunal would not wait for him to sit the test and handed down its decision the day before, 14th November 2008.
58. The Tribunal found, correctly in my view, that the results of the IELTS test would not meet the requirement of item 5A404, because it would not be a test that was taken less than two years before the date of application. It would be a test taken after the date of application. The Tribunal was not satisfied that the applicant met the requirements of item 5A404(a) and (b) because he had not provided the requisite evidence.
59. The Tribunal did not commit a jurisdictional error when it made this finding. As there is no jurisdictional error in the Tribunal decision, it is a privative clause decision as defined by subsection 474(2) of the Migration Act. Therefore, relief in the nature of certiorari, mandamus or prohibition are not available (s 474(1)).
60. The application will be dismissed with costs.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 19 March 2009

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[1] [2009] FMCA 123
[2] [2009] FMCA 193
[3] Court Book 26
[4] International English Language Testing System
[5] Court Book 47
[6] Court Book 66
[7] Court Book 71-73, 75
[8] Court Book 79
[9] Review applicant’s
[10] Court Book 92
[11] Court Book 95
[12] There is no evidence in the Court Book to show that the applicant was granted an extension until 24th October.
[13] Court Book 97
[14] Court Book 98
[15] Court Book at 106
[16] Court Book 107
[17] ibid
[18] Court Book 108
[19] [2008]FMCA 1709
[20] (2003) 128 FCR 538;[2003] FCA 433
[21] [2009] FMCA 108
[22] Migration Regulations 1994, reg. 1.03