(2) The applicant must pay the first respondent's costs in the sum of $5,000.
[2]
In this application, Mr Liu seeks judicial review of a decision of the Tribunal handed down on 19 November 2007, which affirmed a delegate's decision made on 4 May 2006. The delegate decided that Mr Liu was not eligible for a student visa which would allow him to continue his studies in Australia, because he did not satisfy criteria requiring proficiency in the English language.
Mr Liu had studied between 2003 and 2005 at the St James College in Sydney. At the end of his study, the college issued him with a certificate which said:
This is to certify that Xing LIU has completed the Year 12 Higher School Certificate Course as per the NSW Board of Studies syllabus 2005. ... Refer to academic transcript for results.
[3]
The transcript showed that he had been enrolled in 25 subjects for the years 11 and 12 HSC courses, but had achieved results exceeding a 50 per cent grade in only four of them, being mathematics and business studies. In the eight English courses in which he had enrolled, his grades were recorded as:
[4]
He completed that study under a subclass 571 visa issued in relation to studies in the "schools sector". On 21 January 2006, he applied for a subclass 572 visa for studies in the "vocational education and training sector". He indicated that he wished to study in a hospitality (commercial cookery) course with Sydney International College.
One criterion for the visa, to be satisfied at the time of decision, arose under Sch.2 item 572.223(2)(a)(i) of the Migration Regulations 1994 (Cth). This provided:
572.223(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 ...
Schedule 5A in Pt.4 contained requirements in relation to five assessment levels. These assessment levels were specified by Gazette Notice under reg.1.41 in relation to subclass 572 visas. Under reg.1.42(1), an applicant for a student visa was subject to the assessment level specified by the Minister at the time of application in relation to the relevant subclass.
The Tribunal found, and it has not been challenged at any stage by Mr Liu or his migration agent, that the relevant Gazette Notice required him to be assessed at level 4 under Sch.5A item 5A404. A lower level of English language proficiency was specified in relation to assessment level 2, but it was found by the Tribunal that Mr Liu did not qualify under the provisions of reg.1.42(2) through (6) for being exempted from the higher level of assessment, due to his previous visa history. This finding of the Tribunal has not been challenged by Mr Liu, and in my opinion it reveals no error.
The tests for English language proficiency at assessment level 4 provided numerous alternatives for evidencing a substantial level of proficiency. They included satisfying levels of testing under IELTS, or studying in courses taught in English, but each of the alternatives was framed in precise terms:
Division 2 Requirements for assessment level 4
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;
(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;
(c) the applicant:
(i) is fully funded; and
(ii) has a level of English language proficiency that satisfies his or her proposed education provider; and
(iii) if the applicant is to undertake an ELICOS before commencing his or her principal course - will undertake an ELICOS of no more than 20 weeks duration;
(d) the applicant had, less than 2 years before the date of the application:
(i) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:
(A) in Australia; and
(B) in English; or
(ii) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that:
(A) is specified by the Minister in a Gazette Notice for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English; or
(iii) as the holder of a student visa - successfully completed a substantial part of a course (other than a foundation course) that:
(A) was conducted in English; and
(B) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
Both the delegate and the Migration Review Tribunal concluded that Mr Liu was unable to satisfy any of the alternative paragraphs or sub-paragraphs in item 5A404. The Tribunal addressed them all, and explained clear reasons for its findings. Most of them arose inevitably from uncontentious facts, and it is unnecessary for me closely to explore the reasoning of the Tribunal, except in relation to item 5A404(d)(i).
However, I note that the Tribunal did consider the other paragraphs in the light of Mr Liu's further studies during 2006 and 2007, while he was on a bridging visa during the pendency of the Tribunal's review. During these years, he twice attempted an IELTS test, and attained a score of 5 in each of them, but these scores could not satisfy paragraphs (a) or (b) or (c) because they were not achieved in the circumstances described in those paragraphs.
Mr Liu during 2006 and 2007 also completed his cookery course, which had been taught in English in Australia, but that study could not satisfy any of the alternatives under paragraph (d), because he was not the holder of a student visa at that time, but had remained in Australia on a bridging visa.
Mr Liu had attempted part of a "foundation course" in 2003 and possibly also in 2004, such a course being defined by reference to its registration under the Education Services for Overseas Students Act 2000 (Cth) (see Sch.5 item 5A101). However, he had not completed that course, for reasons which are not clear. Instead, he had been credited by St James College with part of his studies in that course towards his enrolments in the year 11 and 12 HSC courses. He therefore could not satisfy Sch.5A items 5A404(d)(v) and (vi).
As the Tribunal identified, in my opinion correctly, the only debateable basis on which Mr Liu could establish the required level 4 English language proficiency was to persuade the Tribunal that his certificate from St James College, which I have extracted above, evidenced that he had "successfully completed the requirements for a Senior Secondary Certificate of Education" within the language of Sch.5A item 5A404(d)(i).
When deciding against Mr Liu, the Tribunal referred to its researches into the meaning of that term. It said:
The Tribunal must consider what the requirements are for a Senior Secondary Certificate of Education in Australia relevant to the applicant and whether it is enough to earn the applicant an exemption from English language proficiency testing that he had successfully completed the year 12 Higher School Certificate course as per the NSW Board of Studies syllabus. This applicant was certified as doing this in September 2005. The Tribunal must determine whether the exemption required the applicant to actually be awarded the NSW Higher School Certificate. There is no evidence before the Tribunal that the applicant has done this and he has not provided evidence that he obtained the HSC.
The term - Senior Secondary Certificate of Education is not defined in the Act or Regulations. The website for the Commonwealth Education Department defines the term as follows: "Senior Secondary Certificate of Education (or SSCE) a national title for senior secondary school qualifications issued by the state and territory governments. Each state or territory has its own senior secondary certificate of education."
The Australasian Curriculum Assessment Certification Authorities/NSW Board of Studies website (http://www.boardofstudies.nsw.edu.au/acaca/nsw/section1\_nsw.html, accessed in January 06) states that students are awarded the Higher School Certificate to certify satisfactory completion of the required program of study for senior secondary students. A guide to Year 12 Certificates and Tertiary Entrance Requirements in Australia published by the Board of Studies NSW for the Australian Curriculum, Assessment and Certification Authorities (ACACA) states that students are awarded the Higher School Certificate to certify satisfactory completion of the required program of study for senior secondary students. And under the heading - What must students do to be awarded the Higher School Certificate - the following is said:
To be eligible for the award of the Higher School Certificate students must:
(a) have gained the School Certificate or such other qualifications as the Board of Studies considers satisfactory;
(b) have attended a government school, an accredited non-government school, a school outside New South Wales recognised by the Board or a college of TAFE;
(c) have satisfactorily completed courses that comprise the pattern of study required by the Board for the award of the Higher School Certificate;
(d) sit for and make a serious attempt at the requisite Higher School Certificate external examinations.
To qualify for the Higher School Certificate students must satisfactorily complete a Preliminary pattern of study comprising at least 12 units and an HSC pattern of study comprising at least 10 units.
Mr Liu now challenges the Tribunal's opinion that item 5A404(d)(i) required the production of a certificate issued under the authority of the New South Wales Board of Studies, which established that Mr Liu had successfully completed the HSC course according to the qualifications applied by the Board. He does not contend that the Tribunal made any error of fact when finding that he did not possess the qualification identified as necessary by the Tribunal, but he disputes that such a qualification is required by the language of the regulation.
This raises issues of mixed fact and law, similar to those addressed in other statutory contexts where reference is made to academic achievements (for example, compare Layt v Secretary, Department of Family and Community Services[2003] FCA 317; (2003) 73 ALD 650 and Secretary, Department of Employment, Education, Training & Youth Affairs, v Lander[1996] FCA 1088; (1996) 24 AAR 39). I shall assume, and the Minister did not contend otherwise, that an error of the Tribunal on this issue would provide jurisdictional error, for which the Court could grant relief under s.476 of the Migration Act 1958 (Cth).
In my opinion, the language of item 5A404(d)(i) clearly points towards the construction taken by the present Tribunal. The regulation assumes that there are discoverable "requirements for" the qualification which is referred to, and that they involve a judgment in relation to whether the completion of an educational course has been "successful". In a context where the words "Senior Secondary Certificate of Education" are in capital letters, the implication is that a technical reference is being made to a recognised type of educational certificate, which is issued after a process of assessment of results obtained after studying in a secondary education course.
Prima facie, the present certificate issued by St James College would not appear to be directed at providing such a qualification, since it appears to avoid any assessment of the sufficiency of the results indicated in the academic transcript. In effect, it merely certifies enrolment and attendance at classes for the Board of Studies courses. As Mr Liu's results illustrate, it says nothing about his achieved level of English proficiency. Its tender would not appear to satisfy the policy objectives of Sch.5A item 5A404.
Moreover, in the context of the features of the Australian educational system which are referred to in the extrinsic material identified by the Tribunal, the term "Senior Secondary Certificate of Education" takes a confirmed meaning, of a qualification issued by a government educational agency. The draftsperson has not thought it necessary to provide a definitional description which lists the various names of respective State and Territory senior secondary school qualifications, appearing to rely upon an inherent and understood meaning of its reference. In my opinion, the intended meaning of the reference is clearly that which was found by the Tribunal.
To the extent that this required the Tribunal to identify the meaning of a technical term, I am not satisfied that the Tribunal's reasoning reveals any error of law in its construction of the language of item 5A404(d)(i), nor of its application of that language to the relevant evidence which it located. If no question of law was involved in the interpretation of the regulation, I consider the Tribunal's conclusion of fact as to its application was open to it.
I therefore do not accept the contention made by Mr Liu that the Tribunal was bound to accept his certificate from St James College as evidence satisfying the subclass 572 criteria in item 572.223(2)(a)(i).
Mr Liu's amended application also invokes s.353(1) of the Migration Act, which requires the Tribunal to pursue objectives "of providing a mechanism of review that is fair ...", and s.357A(3), which requires the Tribunal to "act in a way that is fair and just". He submits that these required or allowed the Tribunal to disregard his inability to satisfy criteria in item 572.223(2)(a).
However, in my opinion, these submissions are misconceived. Section 353(1) has been held on the highest authority not to produce "a legislatively imposed criterion for the exercise of jurisdiction" by the MRT (see NAIS v Minister for Immigration & Multicultural & Indigenous Affairs[2005] HCA 77; (2005) 228 CLR 470 at [36]). The structure of the migration legislation makes it clear that the Minister, and on review the Tribunal, when considering the refusal of the grant of a visa is bound to refuse a visa if he or it is not satisfied that "the other criteria for it prescribed by this Act or the regulations have been satisfied" (see s.65(1)(a)). Whether or not this produces a fair outcome in the opinion of the decision-maker, is not a separate consideration.
A construction similar to that of s.353(1) may also apply to s.357A(3). However, it is unnecessary for me to decide this in the present case. This is because this provision did not govern the decision-making of the present Tribunal, since the application for review was made before 28 June 2007 (see Migration Amendment (Review Provisions) Act 2007 (Cth), Sch.1 item 33).
In this situation, the general fairness of the applicant failing to obtain a student visa to cover his studies in 2006 and 2007 is not a matter which I have jurisdiction to consider, any more than the Tribunal had jurisdiction to consider it. The policy considerations giving rise to these complex student regulations are not always apparent from the regulations themselves, although it is clear in the present case that complex tests of English language proficiency have been crafted to meet numerous different circumstances of students. Whether the discretionary and unreviewable powers of the Minister should be exercised to assist Mr Liu is not something that I feel able to make any comment upon.
For the above reasons, I am unable to find that the Tribunal's decision is affected by any jurisdictional error. I must therefore dismiss the application.
[5]
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM
Parties
Applicant/Plaintiff:
Liu
Respondent/Defendant:
Minister for Immigration & Anor [2008] FMCA 750
Legislation Cited (2)
Services for Overseas Students Act 2000
Amendment (Review Provisions) Act 2007
Cases Cited (1)
(2005) 228 CLR 470
(iv) successfully completed a substantial part of a course that:
(A) is specified by the Minister in a Gazette Notice for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English; and
(D) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or
(v) successfully completed a foundation course that was conducted:
(A) in Australia; and
(B) in English; or
(vi) successfully completed a course in foundation studies that:
(A) is specified by the Minister in a Gazette Notice for this sub-subparagraph; and
(B) was conducted outside Australia; and
(C) was conducted in English;
(e) the applicant achieved, less than 2 years before the date of the application, the required score in a test that is specified in a Gazette Notice under clause 5A102;
(f) the applicant has:
(i) a level of English language proficiency that satisfies the applicant's proposed education provider; and
(ii) at least 5 years of study in English undertaken in 1 or more of the following countries:
(A) Australia;
(B) Canada;
(C) New Zealand;
(D) South Africa;
(E) the Republic of Ireland;
(F) the United Kingdom;
(G) the United States of America.
Both patterns must include:
at least six units from Board Developed Courses;
at least two units of a Board Developed Course in English;
at least three courses of two units value or greater (either Board Developed or Board Endorsed Courses);
at least four subjects.
To satisfy pattern of study requirements for the Higher School Certificate a student may count a maximum of six Preliminary units and six HSC units from courses in science.
The above material suggests that a clear distinction is drawn by the NSW Board of Studies between the HSC and merely completing their HSC courses as per the NSW Board of Studies syllabus. The Tribunal is of the view that the more appropriate meaning to give to the term Senior Secondary Certificate of Education (or SSCE) is that it is a generic title for senior secondary school qualifications issued by the state and territory governments. In other words, in the context of NSW it refers to the award of the HSC. This reading also makes sense in the context of an exemption from English proficiency for it is a requirement for obtaining an HSC that the candidate does at least two units of a Board Developed Course in English while, as can be seen from the certificate obtained by the applicant in this review (for completing the HSC subjects), this certificate may be obtained although the candidate passes no English course.