Shibly v Minister for Immigration & Anor [2009] FMCA 193

1. The applicant forwarded his application to the Tribunal in Melbourne on 14th May 2008. He nominated a migration agent as his representative. The migration agent, Mr Zabde, forwarded a written submission to the Tribunal on 23rd July 2008. In that submission he explained that the applicant booked an IELTS test before applying for the visa but was given a test date of 3rd May 2008. He achieved an overall band score of 7.0.
2. The agent submitted that booking IELTS tests at short notice is impossible due to the demand but that the applicant had the booking receipt at the time of application for the visa and satisfied the requirements by obtaining an appropriate band score. The agent also referred to an earlier decision of the Tribunal where the Tribunal took into account the results of an IELTS test that had been taken after the date of application for the visa:
   • In the case of 071292782 [2007] MRTA 777 (10 December 2007), the member stated that "The Tribunal is of the view that the reference in cl. 5A407 to 'an IELTS test that was taken less than 2 years before the date of application' establishes a date after which the IELTS test must have been taken but does not require that the IELTS test must have been taken before the date of the application. Had that been intended, the legislature would no doubt have made express provision to that effect, referring, for example, to an IELTS test taken before the date of application and taken not less than 2 years before that date. The Tribunal is of the view that this interpretation accords with the obvious purpose of the relevant provision, which is to ensure that applicants have the necessary English language proficiency to undertake their proposed course of study. Furthermore, this is a criterion to be determined at time of decision."[4]
3. The Tribunal wrote to the applicant care of his migration agent on 22nd September 2008, inviting him to comment on or respond to certain information that the Tribunal considered would, subject to any comments or response he made, be the reason or a part of the reason for affirming the decision under review. The Tribunal referred to this information:
   • The Tribunal has had regard to the results which have been provided to the Tribunal in relation to the IELTS test which was undertaken on 3 May 2008. The Tribunal has also had regard to the submissions made by your representative that this should indicate that clause 572.223 was met at the time of decision. However, as you are subject to Assessment level 4, and you are not undertaking an ELICOS course before commencing your principal course, paragraph 5A404(a) of Schedule 5[5]requires that you 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. The IELTS test which you have provided shows an overall band score of 7.0, however this test was taken after the application was lodged, and there is no evidence that you have achieved an Overall Band Score of at least 5.5 in an IELTS test that was taken less than 2 years before the date of the application.[6]
4. The Tribunal's letter went on to ask the applicant to give evidence of certain matters:

Accordingly, in relation to English Language Proficiency, clause 5A404 of Schedule 5[7] requires that you must give evidence that one of the following applies:

• You will not undertake an ELICOS course before commencing your principal course; and you 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 (paragraph 5A404(a)); or
• You will undertake an ELICOS course of no more than 20 weeks duration before commencing your principal course; and 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 (paragraph 5A404(b)); or
• You are fully funded; or
• You had, less than 2 years before the date of the application successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted in English (paragraph 5A404(d)(i) and (ii); or
• As the holder of a student visa - successfully completed a substantial part of a course (other than a foundation course) that was conducted in English (paragraph 5A404(d)(iii) and (iv)); or
• Successfully completed a foundation course or a course in foundation studies that was conducted in English (paragraph 5A404(d)(v));
• You achieved, less than 2 years before the date of the application, the required score in the Paper-Based TOEFL Test, the Occupational English Test or the Computer-Based TOEFL Test (paragraph 5A404(e));
• You have at least 5 years of study in English undertaken in Australia; Canada; New Zealand; South Africa; the Republic of Ireland; the United Kingdom; the United States of America (paragraph 5A404(f)).

If you do not meet the requirements of clause 5A404, you will not be taken to have given evidence (in accordance with the requirements mentioned in Schedule 5A for Subclass 572 and Assessment Level 4) in relation to your English language proficiency for the purposes of your proposed course of study and you will not meet sub-subparagraph 572.223(2)(a)(i)(A). If you do not meet all of the requirements of subclause 572.223(2) you will not be taken to be a genuine applicant for entry and stay as a student for the purposes of subclause 572.223(1) and the Tribunal will have no option but to affirm the decision under review.[8]

1. The Tribunal also asked the applicant to provide the following information:
   • Evidence that you 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 other evidence that you meet paragraph 5A404(a) of Schedule 5.[9]
2. The applicant was asked to provide his comments, his response and his additional information by 20th October 2008. The Tribunal's letter warned the applicant that if he did not provide the information by that time the Tribunal might make a decision on the review without taking any further action to obtain his views, and he would lose any entitlement he might have had to appear before the Tribunal to give evidence and present arguments.
3. The applicant did not respond to the Tribunal's letter, which was sent under the provisions of ss 359A and 359(2) of the Migration Act and also under ss 360 and 363A of the Act. The Tribunal then proceeded to make a decision on the review without holding a hearing.

1. The Tribunal made its decision on 28th October 2008, affirming the decision not to grant the applicant a Student (Temporary) (Class TU) visa. The Tribunal noted that the criteria for a Subclass 572 visa are set out in Part 572 of Schedule 2 to the Regulations and stated that the issue in the case was whether the applicant met the criterion in cl. 572.223, which states (relevantly):
   • (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
2. The Tribunal then stated that the relevant clause in Schedule 5A is dictated by the assessment level to which the applicant is subject. The Tribunal then considered the relevant assessment level for an applicant who has applied for a Subclass 572 visa and holds an eligible passport from Bangladesh, which is Assessment Level 4.
3. The Tribunal then considered the requirements for assessment level 4, which are set out in Division 2 of Part 4 of Schedule 5A. In its Findings and Reasons, the Tribunal stated:
   1. Sub-subparagraph 572.223(2)(a)(i)(A) requires that an applicant must give to the Minister evidence in relation to the applicant's English language proficiency in accordance with the relevant assessment level. For Assessment level 4, as the applicant did not intend to undertake an ELICOS before commencing his principal course, subclause 5A404(a) requires that the applicant must give evidence that he achieved, in an IELTS test that was taken less then 2 years before the date of the application, an Overall Band Score of at least 5.5.
   2. In the present case, the applicant has provided an IELTS test result form which shows an Overall Band Score of 7.5. However, that IELTS test was undertaken two months after the application was lodged. [10]
4. The Tribunal considered the earlier Tribunal decision to which the applicant's adviser referred, but declined to follow it. The Tribunal gave these reasons:
   • However, in the present context, the Tribunal does not consider that the wording of the English Language proficiency requirement in subclauses 5A404(a) and (b) is ambiguous. To the present Tribunal, it appears plain that the provisions require that the applicant must achieve an Overall Band Score of at least 5.5 in an IELTS test that was taken less than 2 years before the date of the application, and not after the application.[11]
5. The Tribunal considered regulation 1.15B(3), relating to vocational English, where it was provided that a person would satisfy the requirement for an IELTS test if he or she achieved a test score in a test conducted either not more than 12 months before the day on which the application was lodged or during the processing of the application. The Tribunal then concluded:
   • 25. In the case of paragraphs 5A404(a) and (b), it was open to the drafters to stipulate that the IELTS test could be taken during the processing of the application. They have not done so and the Tribunal does not consider that paragraph 5A404(a) and (b) should be interpreted to read in an allowance for the test to be taken after the application.[12]
6. The Tribunal found that the applicant did not give evidence that he 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 of at least 5.0, and that there was no evidence that the applicant met any other requirements for English language proficiency set out in item 404. As a result, the applicant did not satisfy sub-subparagraph 572.223(2)(a)(i)(A) and therefore did not meet an essential requirement of subclause 572.223(2).
7. Accordingly, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

1. In his amended application, filed on 9th February 2009, the applicant seeks writs of certiorari, mandamus and prohibition. He claims that the Tribunal committed jurisdictional error by applying the wrong test.
2. The particulars of the applicant's claim are that:

1. In rejecting the application, the Tribunal held that the applicant did not satisfy clause 572.223(1)(2)(a)(i)(A) of Schedule 2 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, the Tribunal adopted a construction of clauses 5A404(a) and (b) to the effect that these provisions could never be satisfied by an International English Language Testing System (IELTS) test taken after the date of the visa application.

1. This constituted an erroneous construction of clause 572.223(1) (2) (a) (i) (A) of Schedule 2 and clauses 5A404 (a) and (b) because an IELTS test taken between the date of the visa application and the date of decision was capable of satisfying these provisions, correctly construed.

1. In applying an erroneous construction of the regulations, the Tribunal applied the wrong test.

1. Counsel for the applicant, Mr Reynolds, submitted that there is a single question for determination, namely, whether the requirement in item 5A404 (a) and (b) that an applicant achieve an Overall Band Score in an IELTS test "taken less than 2 years before the date of the application" was incapable of being satisfied by an IELTS test taken between the date of application and the date of the Tribunal's decision. He submitted that such a test would satisfy the requirements.
2. Mr Reynolds submitted that the plain meaning of the words "taken less than 2 years before the date of application" supports this construction. He submitted that the phrase denotes a single point in time and the operative phrase "taken less than" precludes any test taken prior or equal to this point in time. Absent is any limitation as to how recent the test can be.
3. He submitted that the question is whether the date of the test is more than 2 years before the date of the application. He further submitted that the situation is that:

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 the application would not comply; but

1. a test taken less than 2 years before the date of application and at any time thereafter would comply.
2. The submission is 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. Mr Reynolds went on to submit that the Tribunal's interpretation could only be supported if the words were read in such a way that the phrase reads "taken less than 2 years before, but not later than, the date of application" or "taken less than 2 years before, and before, the date of application". He submitted that the words actually used in the provisions have a plain meaning and there is no basis for reading any such words into the regulation. The applicant submits that the meaning of item 5A404 (a) and item 5A404 (b) is plain and it is unnecessary to turn to the context of the provision absent any ambiguity.
3. However, if the Court were to consider that there is ambiguity,, regulation 1.15B would not assist because it has no direct relationship with Subclass 572 or Schedule 5A. Counsel for the applicant submitted that regulation 1.15B is an example of the legislature, in a different context, making it explicit that it is permissible to lodge an IELTS test after the date of application.
4. Further, there is an internal inconsistency between regulation 1.15B and a number of provisions which purport to incorporate it. There are, for example, numerous provisions that require an applicant to hold "vocational English" at the time of application, contradicting the second limb of regulation 1.15B which permits the sitting of a test post-dating the application date. These provisions are contained in Schedule 2 of the Migration Regulations.
5. Counsel for the applicant submitted that the Court should be careful to utilise a provision affected by such an internal inconsistency to ascribe meaning to unrelated provisions. Further, the Tribunal did not address the fact that item 5A404 of Schedule 5A has effect by working in conjunction with cl. 572.223(1) (and) (2)(a)(i)(A) of Schedule 2 of the Regulations, which is a criterion at the time of decision. This, he submitted, is critical to understanding the operation of item 5A404 (a) and (b). Thus, he submitted that the construction adopted by the Tribunal gave no effect to the legislature's choice to make cl. 5A404(a) and (b) a criterion at the time of decision.
6. The distinction between criteria at the time of application as opposed to the time of decision is a distinction of substance in the Regulations. Counsel drew the court's attention to the concepts of competent English, as defined in reg. 1.15C, concessional competent English, as defined in reg. 1.15E, and vocational English. Mr Reynolds submitted that it could not have been intended to have a criterion at the time of decision that could never be satisfied if it was not satisfied prior to the application.
7. As to the point made by the Tribunal that it was open to the drafters of the regulations to stipulate that the relevant IELTS test could be taken during the processing of the application, counsel for the applicant submitted that, if the applicant's suggested construction were accepted, it would be unnecessary for the drafters to stipulate that the test could be taken during the processing of the application. It was, he submitted, equally open to the drafters to stipulate that the IELTS test could not be taken during the processing of the application, by either:
   1. inserting explicit words to this effect; or
   2. by making it a criterion at the time of application.
8. Counsel referred to a number of clauses in Schedule 2 of the Regulations as an example.
9. Further, counsel for the applicant submitted that there is no ambiguity in the interpretation of item 5A404(a) and (b) but, if the court found to the contrary, then the construction that promotes the purpose or object underlying the regulation should be preferred. He referred to s 15AA of the Acts Interpretation Act 1901 (Cth), which provides that:
   • In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
10. Mr Reynolds submitted that it is clear from the nature of cl. 572.223(1) and (2)(a)(i)(A) and item 5A404(a) and (b) of Schedule 5A that their raison d'etre is to ensure that students have recent evidence that demonstrates sufficient English language ability to undertake the course that they propose to undertake. Allowing IELTS test results obtained between the date of application and the date of decision would not impinge on that purpose, because students with test scores obtained in this period would still be required to demonstrate satisfactory English language ability for their proposed courses, and the evidence would be very recent.
11. Counsel for the applicant submitted that precluding students who sat for an IELTS test after the date of application did not promote the purpose underlying the regulation, because;

1. there is no reason why a group of persons with contemporaneous proof of their English language capability should be precluded from undertaking their proposed courses; 2. it would neuter the choice of the legislature to make cl. 5A404(a) and (b) criteria to be satisfied at the time of decision; and

1. it would give rise to an unsatisfactory situation where students who are unable to sit an IELTS test prior to the application for reasons which may be beyond their control are prevented from undertaking their proposed courses.
2. Mr Reynolds referred the Court to the decision of Smith FM in Bhattarai v Minister for Immigration[13], 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 pendency of the proceeding.
3. The applicant submits that the Minister was correct in conceding that matter and acknowledging the correctness of the construction advanced by the applicant in this case.

1. Counsel for the Minister, the first respondent, submitted that the wording of item 5A404 is not ambiguous. 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[14], per Mansfield J at [16]). The word "application" refers to the application for the visa. He submitted that it is therefore 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 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.
2. Mr Reilly, who appeared for the Minister, submitted that the fact that cl. 572.223(2)(a)(i)(A) requires the applicant to provide evidence in accordance with the requirements in Schedule 5A is a criterion to be satisfied at the time of decision means that compliance with item 5A404 is judged at the time of decision by the delegate or the Tribunal. As a result, the applicant can provide evidence of language qualifications that were not provided at the time of application for the visa.
3. Mr Reilly submitted that, whilst there is no ambiguity in item 5A404, no different result would follow if legislative purpose were to be considered under s 15AA of the Acts Interpretation Act.
4. Counsel for the Minister submitted that, on the applicant's construction of item 5A404, the application for the visa would be made on the expectation that it would be refused by the delegate for lack of evidence of language qualifications. The applicant would then seek review by the Tribunal and seek to procure evidence of language qualifications at that time. This practice would make the delegate's decision otiose and turn the Tribunal, effectively, into a primary decision maker despite its role being to review the delegate's decision. This is not in accordance with the purpose of the legislation. Possessing evidence of the requisite language skills at the time of application for the visa is consistent with the legislative intention that the applicant be a genuine applicant for entry and stay as a student, as required by cl. 572.223(1).
5. Counsel for the Minister also submitted that the conclusion reached by Smith FM in Bhattarai v Minister for Immigration at [9] does not represent the Minister's view and is incorrect.

1. There is no conflict between cl. 572.223 of Schedule 2 and item 5A404 of Schedule 5A. There is no ambiguity in the meaning of item 5A404.
2. Clause 572.223 sets out criteria that must be satisfied at the time of the decision whether or not to grant the visa. Subclause 572.223(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.
3. 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.
4. 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. In this case, for example, the applicant sat for the test on 3rd May 2008 but the Test Report Form is dated 13/5/2008, ten days later. 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.
5. The ordinary English meaning of item 5A404 (a) is clear. The applicant must give evidence that he or she will not undertake an ELICOS 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 an Overall Band Score of at least 5.5.
6. 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".
7. 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".[15] It is a test for which the applicant sat after the date of application.
8. In order to make it quite clear, if an applicant sits for an IELTS 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.
9. The time limit imposed by item 5A404(a), and 5A404(b), for that matter, has both a start point and an end point. The start point is a point of time two years before the date of application. The end point is the date of application.
10. 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 item 5A404 (a) or (b).

1. In order to meet the requirement of Subclause 572.223 (2)(a)(i)(A), the applicant must provide to the Minister evidence of having successfully completed the test by the date of decision.
2. 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 Subclause 572.223(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.
3. The logic of the provisions is easily ascertained. Subclause 572.223(1) requires that the Minister 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).
4. 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.
5. 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.
6. 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.
7. In this case, the applicant had applied for a student visa on 25th February 2008, before he had sat for an IELTS test. The application was refused on 22nd April 2008 because the applicant had not met the requirement of subclause 572.223(2)(a)(i)(A) by providing evidence of his proficiency in English.
8. He sat for an IELTS test on 3rd May 2008, and was successful. The IELTS Test Report Form dated 13th May 2008 is evidence of that. The applicant applied to the Migration Review Tribunal on 14th May 2008 and produced the IELTS Test Report Form to the Tribunal on 23rd July 2008.
9. The Tribunal correctly found that the IELTS test was conducted two months after the application for the visa was lodged. Therefore, the IELTS Test Report Form was found not to be evidence that the applicant had achieved an Overall Band Score of at least 5.5 (for 5A404(a)) or 5.0 (for 5A404(b)) in a test that was taken less than two years before the date of application.
10. The Tribunal did not fall into error in this finding. As there is no jurisdictional error in the Tribunal decision, it is a privative clause decision (s. 474(2)) and relief in the nature of certiorari, mandamus or prohibition are not available (s 474(1)).
11. 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

1. Paragraph 36 line 2 - delete "cl 572.22392)(a)(i)" insert "cl 572.223(2)(a)(i)"

2. Paragraph 40 line 1 - delete "cl 573.223 insert "cl 572.223"

3. Paragraph 41 line 1 - delete "cl 573.223 insert "cl 572.223"

4. Paragraph 41 line 2 - delete "Subclause 573.223(2)(a)(i)(A)" insert "Subclause 572.223(2)(a)(i)(A)"

5. Paragraph 43 line 9 - delete "Subclause 573.223(2)(a)(i)(A)" insert "Subclause 572.223(2)(a)(i)(A)"

6. Paragraph 50 line 1 - delete "Subclause 573.223(2)(a)(i)(A)" insert "Subclause 572.223(2)(a)(i)(A)"

7. Paragraph 51 line 3 - delete "Subclause 573.223(2)(a)(i)(A)" insert "Subclause 572.223(2)(a)(i)(A)"

8. Paragraph 52 line 1 - delete "Subclause 573.223(2)(a)(i)(A)" insert "Subclause 572.223(2)(a)(i)(A)"

9. Paragraph 56 line 4 - delete "Subclause 573.223(2)(a)(i)(A)" insert "Subclause 572.223(2)(a)(i)(A)"

10. Paragraph 59 line 4 - delete "9s 474(1) insert "s. 474(1)

[1] [2009] FMCA 123

[13] [2008] FMCA 1709

[14] (2003) 128 FCR 538; [2003] FCA 433

[15] Applicant's Outline of Submissions [20]