Shah v Minister for Immigration & Anor [2009] FMCA 108

1. On 10th September 2007 the applicant applied to the Migration Review Tribunal for a review of the delegate's decision. The Tribunal invited him to appear before the Tribunal to give evidence on 30th June 2008. The applicant attended the hearing, accompanied by his migration agent. He provided his passport and a number of documents to the Tribunal in support of his case. One of the documents that he provided was an International English Language Testing System (IELTS) Test Report form dated 5/09/2007 from Macquarie University, showing that he had attended a test on 25th August 2007 and had obtained an Overall Band Score of 5.5.[2] The Tribunal allowed the applicant a period of two weeks after the hearing to make further submissions.
2. The applicant's migration agent wrote to the Tribunal on 14th July 2008 and advised:
   1. The client came for visa extension to our Office on 5th March 2007. His Student Visa was expiring on 15th March 2007.
   2. The client was advised to book IELTS as this was requirement of DIAC.
   3. The client tried everywhere to book IELTS - but no where the Booking was available for IELTS examination. He could only give the test on 25th August 2007 - by that time his visa application was refused.[3]
3. The Migration Review Tribunal handed down its decision on 6th August 2008, affirming the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

1. The Tribunal noted that the issue in the case was whether the applicant met the criterion in cl. 573.223 which requires that, at the time of the decision, the Minister must be satisfied that the applicant is a genuine applicant for entry and stay as a student having regard to the factors set out in cl. 573.223(2). The Tribunal set out the text of clause 5A507, relating to English language proficiency.
2. The Tribunal recorded that the applicant had applied for a subclass 573 visa to undertake the course for a bachelor of Business Administration at Southern Cross University. He had provided a number of documents with his application and some further documents at the hearing.
3. In the Decision Record, the Tribunal set out a summary of the applicant's evidence at the hearing, stating:
   1. The Tribunal indicated to the applicant that, on the basis of the available information, it would appear that he does not meet the requirements of cl. 5A507 in that he does not appear to have provided evidence that he meets the English proficiency criteria.
   2. The applicant gave evidence that he came to Australia on 6 December 2004 and that he undertook an English course, following which he was enrolled at the University of Southern Queensland Sydney Education Centre, in the Masters in Information Technology. The Tribunal noted that it would appear that he had failed all of the subjects which he undertook, with which the applicant agreed.
      1. The applicant told the Tribunal that his visa would have expired on 15 March 2007 and that he had sought advice on 5 March 2007. He said he tried to enrol in an IELTS test. He said at that time he did not know of the requirement that he had to provide appropriate IELTS test results. He said he had to get a date for the test and it took about 3 months to get a date.
      2. The Tribunal advised the applicant that the relevant issue is whether at the time of application, he was able to meet the IELTS test requirement. The Tribunal indicated that at the time of application, he does not appear to have met the requirements and the IELTS test which he undertook subsequently, would appear to be irrelevant because this is a time of application criterion rather than a time of decision.
      3. The Tribunal suggested to the applicant, that on the basis of the available information it would appear that he does not meet the requirements of cl. 5A507, relating to English language proficiency as there does not appear to be evidence that he meets any of the criteria listed in cl. 5A507. The Tribunal indicated that if the Tribunal were to form that view, then it would appear that he does not meet the requirements of the 573 visa...[4]
4. The Tribunal noted that the applicant had provided an IELTS test that he had undertaken on 25th August 2007 and said:
   • The issue is whether the Tribunal determine the matter based on IELTS test results, at the time of the Tribunal's decision. Cl. 5A507 provides that where an IELTS test result is required, the applicant must give evidence that he or she achieved a specified score 'in an IELTS test that was taken less than 2 years before the date of the application'. The expression 'less than 2 years before' in this context may be ambiguous, and there could be some question as to whether the results of an IELTS test taken after the visa application was lodged, including during the review process, can be taken into account.[5]
5. The Tribunal considered the decision in Ruykys v Minister for Immigration and Multicultural and Indigenous Affairs[6], the Explanatory Statement to the amending regulations that introduced Schedule 5A and Departmental policy before deciding that clause 573.223 which incorporates the Schedule 5A requirements is a time of decision. The Tribunal gave this reason:
   • The Tribunal is satisfied that the purpose of the English language proficiency requirement is to ensure that the applicant is 'a genuine applicant for entry and stay as a student in Australia' and that, fundamental to the genuine intention to be a student in Australia is the ability to understand the course of study. Since the applicant has to be a genuine applicant for stay as a student from the beginning of their stay (from entry), it follows that the applicant will need to possess the requisite proficiency in English as soon as the visa begins. Since the visa can be granted anytime after it has been applied for, it follows that proof of proficiency in English needs to be provided before the date of application.[7]
6. Consequently, the Tribunal was satisfied that to meet the relevant requirements of cl. 5A507 the IELTS test must have been conducted no more than two years prior to the application and not after the application. As the applicant had undertaken his IELTS test on 25th August 2007, after he lodged the visa application, he did not meet the requirements of cl. 5A507.
7. The Tribunal found that the applicant did not meet the requirements of cl. 573.223(2)(a)(i)(A) and was therefore not satisfied that the applicant was a genuine applicant for entry and stay as a student. Accordingly, the Tribunal affirmed the decision under review.

1. The applicant commenced proceedings by filing an application and affidavit in support on 27th August 2008. He claims that the Tribunal decision is infected with jurisdictional error in that the Tribunal misconstrued the requirements of cl. 5A507 to mean that the IELTS test must have been conducted no more than two years prior to the application for the visa, and not after the application for the visa was made.
2. Mr Karp of counsel appeared for the applicant. in his submission, he noted that the criteria to be satisfied at the time of the decision included:
   • 573.223 (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:

1. for an applicant who is not a person designated under regulation 2.07A0:
   1. 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...[8]

1. He submitted that the assessment level to which the applicant was subject under Migration Regulation 1.41 was Level 3. Under Regulation 1.44 he was required to provide evidence about his English language proficiency in accordance with the requirements set out in Schedule 5A. Item 5A507 required the applicant to have:
   • Achieved, in an IELTS test that was taken less than 2 years before the time of making the application, an Overall Band Score of at least 5.5 or the required score in an English language proficiency test that is specified in a Gazette Notice for clause 5A102; and...[9]
2. Whilst the applicant took the IELTS test on 25th August 2007 and achieved the necessary Overall Band Score of 5.5, this test was not before the delegate, who had already rejected his application on 21st August. The Tribunal reasoned that there was a question as to whether an IELTS test taken after the visa application was lodged can be taken into account, saying that the words "...taken less than two years before" are ambiguous. The Tribunal had concluded that Clause 573.223 is a time of decision requirement but considered that it referred to a time prior to the date of the application.
3. Mr Karp submitted that the words might be ambiguous but it is incorrect to consider those words, or the explanatory memorandum, in isolation. He further submitted that it is erroneous to consider the words of Item 5A507 in isolation from the provision which activates them, Clause 573.223 of Schedule 2. He referred to the decision of the High Court in CIC Insurance v Bankstown Football Club[10], at 408:
   • ...the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh J pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance.
4. He submitted that the context in this case includes the fact that clause 573.223 is a "time of decision" requirement, which means that the question of English language proficiency does not have to be considered until the delegate or the Tribunal is to make the decision. It does not make sense to have a time of decision requirement that insists on the applicant having done something before the date of the application.
5. Mr Karp submitted that the solution is to construe the subject words in Item 5A507 as including, inter alia, an IELTS test taken during the course of the application. Such an interpretation would harmonise Clause 573.223 with Item 5A507 and would be consistent with the Tribunal's view of the purpose of the English proficiency requirement, i.e. the "mischief" that it was designed to overcome. If that purpose is to ensure that applicants have the required English proficiency as soon as the visa begins, then this purpose could readily be served by the applicant demonstrating proficiency in English at any time before the visa is granted.
6. Counsel for the Minister, Mr Reilly, submitted that the wording of Item 5A507 requiring that the IELTS test "was taken less than 2 years before the time of making of the application" clearly requires that the test be taken before, and not after, the date of application. There is no reason to interpret the word "before" in other than its natural meaning of "prior to in time" (_Ruykys v Minister for Immigration and Multicultural and Indigenous Affairs[11]_at [16]). The word "application" refers to the application for a visa (e.g. Minister for Immigration and Multicultural Affairs v Al Shamry[12]). Thus, the reference to the IELTS test being "taken less than 2 years before the date of the application" means that the IELTS test must be taken before the date of application for a visa and not after it. Mr Reilly also submitted that it was irrelevant that previous Tribunals may not have interpreted the regulation in that way, as there is no principle of consistency binding on the Tribunal (see Soboleva v Minister for Immigration and Multicultural Affairs[13] at [21]-[22]).
7. Mr Reilly submitted that the Tribunal's construction of the regulation was correct and there was no jurisdictional error.

1. The issue in this case is whether the applicant provided evidence that he met the requirements of Clause 573.223 of Schedule 2 of the Migration Regulations. The relevant parts provide:
   • (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 573 and the assessment level to which the applicant is subject, in relation to:
         • (A) the applicant's English language proficiency for the purpose of each course of study that the applicant proposes to undertake; and...
2. The evidence required to be produced is set out in Schedule 5A to the Regulations. The applicant's assessment level indicates which clause in Schedule 5A applies. In this case it is Level 3. Division 3 of Part 5 of Schedule 5A sets out the requirements for Assessment Level 3. Clause 5A507 refers to English language proficiency and, depending on the course applied for, sets out that the applicant must provide evidence of having completed an IELTS test and achieved a particular Overall band Score.
3. The applicant had produced to the Tribunal a certificate dated 5th September 2007 showing that he had sat for an IELTS test on 25th August 2007 and achieved an Overall Band Score of 5.5. This test was taken after the applicant's application for a visa had been refused by the delegate on 21st August 2007.
4. The relevant parts of clause 5A507 state that:
   • (1) The applicant must give evidence that one of the following applies:
     • (aa) the applicant has:

(i) achieved, in an IELTS test that was taken less than 2 years before the time of making the application, an Overall Band Score of at least 5.5...

1. The applicant had not been able to produce this evidence at the time the application for a visa was considered by the delegate. He did not sit for the IELTS test until four days after his application for a visa was rejected. However, he had been able to provide this evidence to the Tribunal, because he had applied to the Tribunal on 10th September 2007.
2. What the Tribunal effectively said was that it was too late for the test result to be considered. The applicant had to have shown that he had achieved the necessary standard at the time he lodged his application for a visa.
3. The Tribunal referred to _"a number of MRT decisions adopting the view that '_less than 2 years before' means no more, or earlier, than 2 years before. As such, the results of any IELTS test that is taken more recently than the date immediately preceding the date of application may be considered. There is arguably some support for this interpretation in Ruykys v MIMIA (2003) 128 FCR 538.[14]
4. There clearly is support for that view, provided that it is understood what the phrase "the date of application" means. The issue is whether the delegate or the Tribunal considers the results of an IELTS test taken less than 2 years prior to the date when the application was lodged or one taken after the application was lodged but less than 2 years prior to the time when the application is being considered.
5. Barnes FM considered similar but not identical wording in Item 5A404 (d)(i) of the regulations in Li v Minister for Immigration & Anor[15]. Item 5A404 (d)(i) provides:
   • (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

1. In Li v Minister for Immigration, Barnes FM held at [47]:
   • However the difficulty that the applicant faces is that both Schedule 5A and the Regulations are expressed to impose mandatory requirements in relation to particular forms of evidence.
2. With respect, this appears to be correct and should be followed.
3. Smith FM considered the requirements of Item 5A404 (a) and (b) in Bhattarai v Minister for Immigration & Anor[16] at [9]. Item 5A404 (a) and (b) provide:

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;

1. In Bhattarai v Minister for Immigration at [9], Smith FM said:
   • In short, Mr Bhattarai could not satisfy either of the tests in (a) or (b) of cl. 5A404 because he had not 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 or 5. 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. There was no obligation on the Tribunal to allow Mr Bhattarai more than one chance to obtain a sufficient IELTS score.
2. With respect, I am not satisfied that I should follow the view that that it is possible for the IELTS test to be undertaken whilst the proceedings are pending. It should be noted that the decision did not turn on that point. The applicant in Bhattarai had apparently taken the test whilst the proceedings were pending but had not achieved a sufficient overall band score. His Honour was not required to consider whether it was in fact possible to undertake the test after the application had been made and the point was never argued before him. The applicant was not represented.
3. In my view, the submission on behalf of the Minister in Bhattarai was not correct.
4. The word "application" in clause 5A507 can only mean the application for the visa. Thus, it follows that the requirement on the applicant in clause 5A507(1)(aa) is to show that he or she has
   • ...achieved, in an IELTS test that was taken less than 2 years before the time of making the application, an Overall Band Score of at least 5.5...
5. Clause 5A507 is confusing in that in 5A507(1)(a) it refers to a test that was taken "less than 2 years before the time of making the application" whereas in 5A507(1)(a), and 5A507(1)(b) the test is to be taken "less than 2 years before the date of the application". It is difficult to ascertain whether there is any difference between the two time limits. In this case, however, the time of making the application is the relevant time.
6. Quite clearly, the time of making the application is the time that the application is received at the office of the Department of Immigration and Citizenship. The Tribunal did, in its reasons at paragraph 34[17] refer to the expression "less than 2 years before"
7. In this case, the applicant applied for a visa on 15th March 2007. Accordingly, the applicant had to provide evidence that he had taken an IELTS test within the previous 2 years and had obtained an Overall Band Score of at least 5.5.
8. The expression is not, in my view, ambiguous. The applicant had to have taken the IELTS test prior to lodging the application, within the previous 2 years.
9. Clause 573.223(2)(a)(i)(A) requires the applicant to give evidence in relation to his or her English language proficiency for the purposes of each course of study that the applicant proposes to take. That clause comes under the heading "573.22 Criteria to be satisfied at time of decision". This appears to have caused confusion when considered with Item 5A507, which requires, in 5A507(1)(aa), the applicant to give evidence that he or she has achieved an Overall Band Score of at least 5.5 in an IELTS test "that was taken less than 2 years before the time of making the application".
10. What that means is that the applicant must take the test less than 2 years before he or she makes the application for the visa and the delegate must be satisfied at the time of making the decision that there is evidence that the applicant achieved the required score in that test.
11. It will be seen that the applicant produced to the Tribunal an IELTS Test Report Form dated 5/9/2007 that contained the results of the tests that he took on 25/8/2007. The applicant did not therefore receive his IELTS Test Report Form until eleven days after he sat for the test.
12. Thus, it would be possible for an applicant to sit for an IELTS test on one day and apply for a Student (Temporary) (Class TU) visa the next day, even though he or she did not have the Test Report Form at the time of application. Provided that the applicant produced the IELTS Test Report Form before the decision was made by the delegate, the applicant would meet the requirement.
13. In this case, however, the applicant did not even sit for the IELTS test until after the delegate had decided to reject the visa, when, in fact, he should have sat for the test before he applied. The delegate did not fall into error by refusing the visa and, more importantly for this case, the Tribunal did not fall into error by affirming the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
14. The Tribunal decision is a privative clause decision and not subject to prohibition, mandamus, injunction, declaration or certiorari (s 474(1)(c)).
15. The application will be dismissed with costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Scarlett FM

[6] (2003) 128 FCR 538; [2003] FCA 433

[8] Applicant's Outline of Submissions at paragraph [2]

[9] Applicant's Outline of Submissions at [4]

[12] (2001) 110 FCR 27; [2001] FCA 919

[13] (2001) 113 FCR 353; [2001] FCA 528

[15] (2008) 219 FLR 59; [2008] FMCA 941

[16] [2008] FMCA 1709