Kamal v Minister for Immigration & Anor [2009] FMCA 238

1. Mr Kamal came to Australia from Bangladesh, and studied here in at least one course which gave him a qualification in English. He studied between 1 May 2006 and 7 July 2006 at the IIBIT Academy of English, and on 28 September 2007 was given a document which certified that he "has completed the English for Academic Purposes Certificate (EAP) at Advanced level. The exit level for the EAP Advanced Certificate is registered at IELTS 6.5 on the CRICOS register".
2. Relying upon this qualification, Mr Kamal applied for a further student visa under subclass 572, to allow him to complete a diploma of hospitality (management). His application was lodged on 23 August 2007, but was refused by a delegate on 4 October 2007.
3. The delegate's reason was given that:
   • You did not satisfy Regulation 572.223(2)(a)(i)(A) for the following reasons:
   • The applicant has been unable to provide evidence that their English language proficiency meets the requirement of the legislation, as required under schedule 5A404, for the assessment level to which he is subject.
4. This was not explained to Mr Kamal in the delegate's letter, in particular, by explaining what was insufficient about his IIBIT qualification. The letter attached the Sch.5A requirements in relation to English proficiency for an assessment level 4 visa applicant. They contain a long list of alternative qualifications for establishing a proficiency in English language, of which one is the presently relevant criterion of an IELTS test result of 5.5. I extracted the list in full in Bhattarai (supra), and explained how many of the alternative qualifications are described in language which is obscure, even to a lawyer. Unfortunately, as in the case of Mr Bhattarai, Mr Kamal's qualification in English was not one of the qualifications listed, and this is now conceded by his representatives.
5. Mr Kamal appears to have discovered this after appealing to the Tribunal. He then attempted an IELTS test on 8 December 2007, and achieved a 5.5 overall band score. Evidence of this outcome was presented to the Tribunal before it made a decision on the review.
6. In a decision handed down on 15 August 2008, the Tribunal held that this was not evidence of a test falling within cl.5A404(a)(ii), because it was not taken within the period of two years before the date of the visa application. It therefore affirmed the delegate's decision.
7. Mr Kamal now seeks judicial review of that decision. It is common ground that if the Tribunal adopted an erroneous construction of the criterion, then its decision was affected by jurisdictional error, the decision should be set aside, and the matter should be remitted to the Tribunal for further consideration.

1. The criteria set out in Sch.5A Part 4 are brought into operation through the criteria for a subclass 572 vocational education and training sector visa, set out in Sch.2 of the Migration Regulations. They do not apply in relation to any other subclass of student visa, but similar provisions are contained in other Parts of Sch.5A in relation to other subclasses.
2. As with the usual pattern of criteria for visas, there are criteria elsewhere in the Regulations in relation to the making of a valid visa application. It is common ground that these do not contain any requirement as to the provision of evidence as to English language proficiency which must accompany the visa application.
3. Moreover, the Sch.2 criteria "to be satisfied at time of application" found in cl.572.21, also do not contain any criteria requiring evidence of English language proficiency to be given with or after the visa application, showing English language proficiency as at the time of visa application. The 'time-of-application' criteria only define various categories of current or previous visas which need to have been held at that time, before a decision to grant this onshore student visa can be made.
4. On my rough analysis of the prescribed categories of existing visa holders who have access to a subclass 572 visa, most people who would normally seek and qualify for this visa are probably people who have already held student visas in Australia. Certainly, this group of students is centrally within the focus of the visa criteria. The group of visa holders eligible for a subclass 572 visa under cl.572.21 is then subdivided, for the purposes of several time-of-decision criteria, by reference to 'assessment levels' prescribed by the Minister. The Minister's notice and the regulations attribute an assessment level 1 to 5 to every visa applicant, depending only upon the country whose passport they hold. Some visa criteria then apply requirements about language proficiency, financial support, and other matters, which can vary very significantly, depending upon the applicant's assessment level. Other criteria exclude altogether from eligibility some applicants who are not assessment level 1.
5. I recently attempted to analyse the assessment level scheme, in an effort to discern the policy background to the distinctions made between different applicants depending upon their assessment levels, i.e. their country of origin (see Kim v Minister for Immigration & Anor [2008] FMCA 1577). My analysis of that background was not disapproved on appeal by Buchanan J (see Kim v Minister for Immigration & Citizenship [2009] FCA 161). I was unable usefully to discern the underlying policy distinctions from the language or structure of the migration regulations, nor from the extrinsic material, so as to give a focused content to a power of exemption from the exclusion of some assessment level 2, 3, 4 and 5 applicants under cl.573.227, which is identical to a criterion also applicable to subclass 572 visa applicants. I concluded that the draftsman would not have intended that the language of these criteria should be construed by reference to underlying policies explaining the different requirements placed on visa applicants based on their assessment level. Decision-makers, and a court on judicial review, are left with the language of the regulations and the surrounding legislative context, when endeavouring to find their intended meaning.
6. Relevant to the present case, the assessment level of a subclass 572 visa applicant controls the evidence required to be presented as to English language proficiency, financial capacity, and 'other requirements', through the provisions of criterion 572.223. Its heading categorises it as one of the "criteria to be satisfied at time of decision". It provides:
   • 572.223
     • (1) 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).
     • (2) An applicant meets the requirements of this subclause if:
     • (a) for an applicant who is not a person designated under regulation 2.07AO:
       • (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
     • (b) for an applicant who is a person designated under regulation 2.07AO - the Minister is satisfied that:
       • (i) the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant:
         • (A) has access to sufficient funds of the person's own or provided by a relative; or
         • (B) is sponsored by an approved special student sponsor under Division 1.4D of these Regulations, with a sponsorship that is in force; and
       • (ii) the applicant's proficiency in English is appropriate to the proposed course of study; and
7. It should be noted that, although all these criteria are generally described in sub-cl.572.223(1) as addressing whether an applicant is "a genuine applicant for entry and stay as a student", the English language proficiency tests are supplemental to the separate general requirements in sub-paragraphs (2)(a)(ii) and (b)(iii), that the Minister is satisfied that the applicant is "a genuine applicant for entry and stay as a student", having regard to any relevant matter.
8. The group of applicants potentially covered by par.(2)(b) is narrowly defined, and is not relevant to most visa applicants for a subclass 572 visa, including Mr Kamal, who must come within par.(2)(a). It may, however, be noted that there is nothing in the language of the English proficiency requirement for these people in cl.572.223(2)(b)(ii), which suggests that it cannot be satisfied by evidence of proficiency shown in tests taken after the time of visa application and before the time of decision.
9. Furthermore, this can also be said clearly in relation to some of the applicants under par.(2)(a) who must satisfy the English proficiency requirements of Sch.5A Part 4. This part sets up different tests, or sets of tests, for applicants at each of the five assessment levels. Assessment level 2 and 1 applicants are required to "give evidence that he or she has a level of English language proficiency that satisfies his or her proposed education provider" (see cll.5A412, and 5A410). I can find no implication that this criterion precludes presenting evidence of proficiency which was acquired between date of visa application and date of decision, whether at first instance or on review.
10. The present controversy arises from a temporal reference in the sole assessment level 5 English proficiency qualification, which is also in some, but not all, of the alternative qualifications for assessment levels 4 and 3 applicants. All assessment level 5 applicants must give evidence of achieving a score of 7 in an IELTS test "taken less than 2 years before the date of the application" (see cl.5A401). One way in which assessment level 4 and 3 applicants can establish sufficient English proficiency, is to satisfy the presently relevant criterion of achieving a score of 5.5 in such a test (see cll.5A404(a)(ii), and 5A407(a)(ii)). This is the qualification which Mr Kamal attempted to demonstrate.
11. Other alternative qualifications are provided for level 4 and 3 applicants. Some of them do not use any temporal indicators as to when the described English qualification must have been achieved. Others do contain references to "less than 2 years before the date of application". For example, applicants at these levels who have successfully completed their Senior Secondary studies in Australia are deemed to have English proficiency if there is evidence that this occurred "less than 2 years before the date of the application" (see cll.5A404(d), and 5A407(d), which were considered by me in Liu v Minister for Immigration & Anor [2008] FMCA 750; (2008) 218 FLR 150, and by Barnes FM in Li v Minister for Immigration & Anor [2008] FMCA 941; (2008) 219 FLR 59). It is difficult to see why that criterion should be construed not to allow reliance upon senior secondary studies completed between the date of visa application and prior to the date of decision.

1. The language of the criterion relied upon by Mr Kamal must be addressed in its own terms, and in the legislative context sketched above. As I have indicated, it is listed as the first of the alternatives for English language proficiency for assessment level 4 applicants. It provides:
   • 5A404 English language proficiency

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; ...

1. The words of subparagraph (ii) clearly are intended to raise a temporal requirement as to the date when a sufficient IELTS test is undertaken. The temporal requirement is identified by reference to "the date of the application", and I accept that this should be read as a reference to the date of the visa application. However, there is ambiguity whether it refers to the application date only to specify a 'not earlier than' date for the IELTS test, or to delimit both a 'not earlier than' date and also a 'not later than' date. If it is doing the latter, the language might appear to be elliptic.
2. Even if it is not elliptic, it is ambiguous in its use of the term "less than 2 years before the date ...", where a date is identified which also necessarily occurs before the date at which the criterion will be applied, i.e. the date of decision. The two constructions which, in my opinion, arise from the ambiguity in the language, would give it the meaning either:
   1. an IELTS test that was taken on a date which is not earlier than the date which is 2 years before the date of the (visa) application; or:
   2. an IELTS test that was taken on a date which was within the period of 2 years before the date of the (visa) application.
3. In my opinion, the language is capable of both meanings, and is ambiguous as to which of them is intended, if examined outside its legislative context and operation. It is here that I respectfully differ from the opinion of Scarlett FM, that the criterion is unambiguous as a matter of language. I therefore do not agree with his Honour's reasoning which was based upon his Honour's opinion as to the absence of any ambiguity.
4. Counsel for the Minister maintained that there was no ambiguity in the criterion because the words: "test that was taken less than 2 years before the date of the application" adopted a colloquial reference to a period of time which would not extend indefinitely into the future. It should therefore be understood as defining a closed two year period within which a test has to be taken. However, the present debate does not contemplate a period extending indefinitely into the future, since the period within which a test must be taken will either terminate upon the date of the visa application or upon the date of decision. There are two further basic problems with this submission. The first is, as I have explained above, the colloquial or ordinary use of "less than" in a temporal sense, itself can carry ambiguity which has to be resolved by context. The second is that I must discover meaning, not in an exchange of colloquial language, but in legislation, where meaning is controlled by context.
5. Once the ordinary language is found to be ambiguous, then it is necessary to consider the statutory context in which it appears, how it operates within the legislative scheme, what the underlying policies are, what consequences flow from the two constructions, and what principles of construction should be invoked to assist its legal construction.
6. Before considering that broader context, some aspects of the language of the particular criterion can be noted. The choice of the words "less than 2 years before", rather than unambiguous words of delimitation such as "within 2 years before", tends, in my opinion, to suggest that the criterion is referring to one point of time calculated from the date of the visa application, rather than a period of time terminating at the date of the visa application. It suggests that the concern is to define the most distant point of time after which the test must be taken, rather than a closed past period within which it must be taken.
7. Moreover, to construe "less than" as indicating a closed past period of time, seems to require the implication of the further words "and not after", so as to read the criterion as meaning "taken less than 2 years before the date of application and not after that date". I do not agree with Scarlett FM that this implication must necessarily follow from the reference to "2 years", nor from the reference to the date of the visa application, nor from the word "before". Rather, in my opinion, the reference to an event occurring "before the date of the application", is suggestive that a single earliest date is being identified and nothing more (compare Mansfield J in Ruykys v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 433; (2003) 128 FCR 538 at [16]).
8. However, these semantic indicators supporting the more beneficial construction are not clear. It is better, in my opinion, to approach the ambiguity by reference to the immediate legislative context in which the criterion operates.
9. As I have indicated, the criterion is categorised as a time of decision requirement. It is not a requirement of a valid application, nor a requirement later to be found to have been satisfied at time of application. It is therefore intended to be satisfied at the time of a decision, according to the evidence available to the decision-maker at that time.
10. This suggests, in my opinion, that the first construction is more likely to have been intended than the second. First, because this context necessarily fixes the date of decision as the 'end' of a period for achieving the required test result, which period must commence "less than 2 years before the date of application". It is therefore not necessary to require those words to do more than fix the starting date for the period within which the English test must have been undertaken. Secondly, as a time of decision criterion, and not a time of application criterion, the objective of the temporal reference would appear to be to fix a period for achieving satisfaction occurring before the later date, rather than the earlier date. I therefore consider that the legislative context provides clear support for the more beneficial construction of cl.5A404(a)(ii).
11. Looking beyond the immediate legislative context, reference was made in some of the previous decisions to different language used in relation to the undertaking of an IELTS or other language test found in other Parts of Sch.5A, relating to visas of different subclasses. For example, an assessment level 4 applicant for a schools student visa can satisfy a proficiency test if they have undertaken a test "less than 2 years before the time of making the decision on the application". However, it is difficult to discern how this different phrasing can solve the issue of ambiguity in the present criterion. Chronologically, it is obscure on the information currently before me, whether the other formulation appeared in amendments to the regulations before, or after, the amendments which introduced the presently relevant criterion. In view of the complex nature of the Migration Regulations and the constant amendment of their provisions, it is dangerous to place too much weight in issues of construction upon slight differences in the wording of criteria applying to different subclasses of visas. I am therefore not persuaded that linguistic differences with criteria applying to other subclasses of visas are of assistance in solving the issue of construction in this case.
12. In terms of policy, it is difficult to see any policy objective which explains why the less beneficial construction would have been intended. Prima facie, the only concern which is apparent is that any IELTS test result which is relied upon should have been achieved at a proximate time. It is difficult to see why a visa applicant should be excluded from relying upon his or her most recent test results.
13. The Minister's submissions which were accepted by Scarlett FM attempted to locate considerations which might explain why a past closed period for satisfaction of this particular test might have been intended. However, I am not persuaded by the considerations to which they refer.
14. For example, reliance was placed upon a statement taken by the present Tribunal from the explanatory statement to the 2001 regulations which introduced the scheme of assessment level criteria for student visas. This was:
    • under the new students regime, potential students would sit the test to gauge their English proficiency before applying for a student visa.
15. I extracted other parts of this explanatory statement in my judgment in Kim. However, as I indicated in that judgment, the explanatory statement left many aspects of the legislative scheme obscure. It did not purport to be exclusive of other means of establishing English proficiency, and is problematic as a guide to construction of the present criterion if it is read in that way. This is because, in fact, as I have indicated above, many of the English language proficiency qualifications found in Sch.5A Part 4 plainly do not require the gaining of the required qualification before, and not after, applying for a student visa. This is the case, even within the alternative qualifications for assessment level 4 visa applicants. The statement taken from the explanatory statement is therefore plainly inaccurate in the context of the current - and frequently amended - regulation, and provides weak assistance to the construction of the language actually found in the regulations.
16. As in Kim, the other parts of the extrinsic material provide no assistance to this issue of construction, in particular to explain why it might be desirable to require some, but not all, visa applicants for subclass 572 visas to achieve a sufficient English language proficiency qualification before they apply for the visa, and not while it is under consideration by a delegate or by the Tribunal if this is possible.
17. It was submitted to me, and was accepted by Scarlett FM, that there is a good policy reason for requiring students such as Mr Kamal to have sat an IELTS test before he applies for his new visa, and not while it is under consideration, arising from the structure of primary decision-making and review under the Act. Scarlett FM in Shibly said:
    • 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 only lead to expense and delay.
18. With respect, I am not persuaded by this reasoning. Its premises in [53] are inaccurate, since the beneficial construction would allow a visa applicant to achieve a successful test result while the matter was pending before the delegate, and not just while it was before the Tribunal. Moreover, as I have explained above, it overlooks that many visa applicants do not need an IELTS test result, but can rely upon actual or deemed English language qualifications gained and evidenced at any time before the visa application is decided.
19. Importantly, in my opinion, the concern of "expense and delay" arising from visa applicants rectifying a gap in their cases for satisfying visa criteria while a matter is pending for decision at a review stage, is inconsistent with the statutory scheme of merits review under the Migration Act. That scheme tends to support a construction of a time-of-decision criterion which will allow an applicant to establish a qualification at any time before decision at a review level, rather than the converse.
20. The normal principle of construction of a decision-making power which is subject to a merits review system such as operates under the Migration Act 1958 (Cth), is that time-of-decision criteria are intended to be satisfied at time of decision by a review agency, even if they are not satisfied as at an earlier time. This is the implication, in particular, from the 'stand in the shoes' powers of the Migration Review Tribunal under s.349 of the Migration Act 1958 (Cth), as construed in the light of the long history of similar provisions modelled on s.43 of the Administrative Appeals Tribunal Act 1975 (Cth). In this context, but subject to contrary intention shown in the particular power of decision, a merits review Tribunal such as the present Tribunal is usually intended to have the function of performing completely afresh a primary power of decision, including by addressing criteria at the date of the Tribunal's decision and not as at the date of a primary decision. The Tribunal does not have only the function of receiving fresh evidence concerning satisfaction of criteria at an earlier date of decision. The structure of administrative decision-making under Commonwealth legislation allows, and is intended to allow, the persons affected by administrative decisions to be able to satisfy criteria during the period of pendency of an administrative appeal. This normal structure, and legislative intent, was recently confirmed by the High Court in Shi v Migration Agents Registration Authority (2008) 248 ALR 390, [2008] HCA 31, by Kirby J at [37], [40], [46], [54], Hayne and Heydon JJ at [99] and [101], and Kiefel J with whom Crennan J agreed at [143].
21. In view of the merits review scheme established under the Migration Act in relation to decisions of the present type, and with the underlying rationale for merits review explained by the High Court in Shi's case, I can see no disturbance to good administration or public policy, by construing the present criterion so as to allow Mr Kamal to satisfy this particular test before the Tribunal has made its decision. The Tribunal is under an obligation to complete a review by making a decision (see ss.348 and 349), and must follow procedures which are, inter alia, "quick" (see s.353). It is not obliged to give people adjournments to allow them to procure evidence required to satisfy time-of-decision criteria, if it does not think this appropriate.
22. However, there must be many cases such as the present, where a visa applicant might be under genuine misapprehension as to how they can satisfy English proficiency tests, and be totally bemused by the complexity of the provisions. Mr Bhattarai's case provides another example of this. In my opinion, considerations of good public policy would suggest that a more benevolent interpretation of this criterion is more likely to be intended, than otherwise.
23. Taking into account the above pointers from the language, and the statutory context of the criterion and the administrative process under the Migration Act, in my opinion, the more benevolent construction should be found to be correct. This is in the absence of clear and unambiguous language which ties the hands of a delegate and the Tribunal, so that satisfaction of the criterion can only be achieved before the time of visa application. I am therefore firmly of the opinion that the first meaning of this ambiguous criterion which I have identified above, is the correct construction, and that the present Tribunal erred in adopting a different construction.
24. For the above reasons, I am persuaded that the construction of this provision which was adopted by the legal representative of the Minister when appearing before me in Bhattarai, and was accepted by me in that case, was the correct construction. I have not been persuaded to prefer the alternative construction which has more recently attracted Scarlett FM. I therefore propose to order the issue of writs of mandamus and certiorari in this case.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Smith FM