FEDERAL COURT OF AUSTRALIA

Patel v Minister for Immigration and Citizenship [2012] FCA 376

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants are to pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 24 August 2010, Mrs Hetalben Prakashbhai Patel, the first appellant (the appellant), a citizen of India, applied for a Subclass 572 student visa. The appellant’s husband, the second appellant, was also included in the visa application. Mrs Patel stated in her visa application that her intended course of study was a Diploma of Business Management course at the Technical College of Western Australia.

2    One of the conditions which Mrs Patel was required to satisfy at the time of the decision in respect of her visa application, was to provide evidence of English language proficiency. The means of satisfying this requirement, in Mrs Patel’s case, was set out in cl 5A404 of Div 2 of Pt 5 of Sch 5A to the Migration Regulations 1994 (Cth) (the Regulations). The provisions of cl 5A404 which are relevant to this appeal are the following:

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;

…

(d)    the applicant had, less than 2 years before the date of the application:

…

(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

(iv)    successfully completed a substantial part of a course that:

(A)    is specified by the Minister in an instrument in writing 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;…

3    Prior to making her application for the student visa, Mrs Patel had, from April 2009 to May 2009, completed an English Language Intensive Courses for Overseas Students (ELICOS) course at the Perth International College of English. Mrs Patel had, also, previously, undertaken, in October 2008, an International English Language Testing System (IELTS) test. Mrs Patel had achieved an “Overall Band Score“ of 5.0 on the IELTS test.

4    Mrs Patel’s visa application, also, disclosed that Mrs Patel had enrolled in two courses to be conducted in Western Australia. The first course was a Certificate III Printing and Graphic Arts Diploma course to run from 18 January 2010 to 14 January 2011. The second course was a Certificate IV Small Business Management course to run from 17 January 2011 to 15 July 2011.

5    On 7 December 2010, Mrs Patel’s student visa application was rejected by a delegate of the Minister on the basis that Mrs Patel had not satisfied the English language proficiency requirement in cl 5A404.

6    The delegate found that Mrs Patel had provided an IELTS certificate dated 6 November 2008, with an Overall Band Score of 5.0 and a certificate that she had completed a five week ELICOS course in 2009. The delegate found that by reason of the score of 5.0 which Mrs Patel had achieved on the IELTS test, cl 5A404(b) applied to her visa application. The delegate found that Mrs Patel had not provided evidence that she would be undertaking an ELICOS course of no more than 20 weeks before commencing her principal course. In those circumstances, the delegate found that Mrs Patel had failed to satisfy the delegate that she met the cl 5A404 English language proficiency requirement.

migration review tribunal

7    Mrs Patel applied for a review of the delegate’s decision to the Migration Review Tribunal (the Tribunal). The Tribunal invited Mrs Patel to a hearing which took place on 14 June 2011.

8    Before the Tribunal, Mrs Patel said that she had completed the Certificate III Printing and Graphic Arts Diploma course, referred to in her visa application. Mrs Patel, also, stated that she had enrolled in a Certificate IV Small Business Management course at the Technical College of Western Australia. However, she stated that very early on she had experienced complications in her pregnancy which had meant that she had not been able to attend class in respect of that course. She said that once she had started feeling better she had not returned to the course.

9    The Tribunal record shows that the Tribunal advised Mrs Patel that a Certificate III qualification did not assist in satisfying the English language proficiency requirements set out in the Regulations. It appears this discussion took place in the context of an inquiry made by Mr Patel of the Tribunal during the hearing, as to whether the fact that Mrs Patel had completed the Certificate III course and had enrolled in the Certificate IV course, would be of any assistance to her in satisfying the English language proficiency requirement.

10    The Tribunal did not, in its reasons, consider the questions raised by Mr Patel by reference to any specific provision of cl 5A404. Nor, on the face of it, is there any provision in cl 5A404 which refers to a Certificate IV qualification, and which otherwise applied to Mrs Patel’s circumstances.

11    The Tribunal found that by reason of her IELTS score of 5.0, cl 5A404(b)(i) applied to Mrs Patel’s visa application. That provision required that a visa applicant provide evidence that he or she “will undertake an ELICOS of no more than 20 weeks” prior to the commencement of the principal course. The Tribunal found, the fact that Mrs Patel had already completed a five week ELICOS course in May 2009, was of no assistance to Mrs Patel. Mrs Patel had failed to comply with cl 5A404(b)(i) because she had not provided evidence that she would undertake an ELICOS course of no more than 20 weeks prior to commencing her principal course.

12    The Tribunal affirmed the decision of the delegate.

federal magistrates court

13    Mrs Patel then commenced an application for judicial review in the Federal Magistrates Court. The grounds of review are set out below:

1.    I apply for student visa on 24 august 2010 to Melbourne regional office but I did not got December approval with reason that you do not meet criteria for student visa on 07 December 2010

2.    Then I apply to MRT for review of that decision, when I went for hearing to MRT they ask me to why you did not continue your study. During this time of my application for review I finished my certificate 3 on bridging visa then with my pregnancy I got morning sickness and vomiting problem so I did not go to college because my doctor told me to take full bed rest and I was not able to go to college and attend my class. During last hearing of MRT they told me that they would have been able to give me my visa back if I attend my college and continue my study

3.    When I apply for student visa I rang department several time asking if there is any information you required then tell me I will provide it but they told me that we will contact you if we required any further information but I never got single letter requesting any further information.

14    The Federal Magistrate found that none of the complaints made in Mrs Patel’s application demonstrated jurisdictional error on the part of the Tribunal.

15    The Federal Magistrate observed that there appeared to have been some discussion before the Tribunal in relation to Certificate IV courses, but on Mrs Patel’s evidence, she had from very early on in the course not attended the course by reason of her morning sickness and other health issues due to her pregnancy. In any event, the Federal Magistrate commented that it was up to Mrs Patel to demonstrate before the Tribunal that she had complied with the requirements of cl 5A404, but she had not done so.

16    As to Mrs Patel’s claims that she had not been informed of the requirements for the student visa, the Federal Magistrate, also, found that the Department of Immigration and Citizenship (the department) had by a letter dated 20 October 2010, specifically informed Mrs Patel as to the requirement to demonstrate that she would be undertaking an ELICOS course of no more than 20 weeks before she commenced her principal course.

17    In addition, the Federal Magistrate found that the Tribunal had not erred in its construction of cl 5A404(b) and that the Tribunal had properly applied that clause. The Federal Magistrate went on to find that Mrs Patel had not provided evidence which satisfied any of the requirements of cl 5A404.

the appeal

18    In the appeal, Mrs Patel repeated the same grounds of review which she had relied upon before the Federal Magistrate.

19    In the oral hearing before me, Mrs Patel said she was unable to identify any error on the part of the Federal Magistrate. However, Mrs Patel asked the Court to permit her to stay in Australia. I explained to Mrs Patel that the task of the Court was to determine whether the Federal Magistrate had erred.

20    In my view, the Federal Magistrate did not err in determining that the Tribunal had not fallen into jurisdictional error.

21    The Tribunal had regard to the question raised on behalf of the appellant, as to whether the completion of the Certificate III course could assist Mrs Patel to satisfy the English language proficiency requirement and correctly advised Mrs Patel that it did not.

22    As to the possibility of relying upon the fact that Mrs Patel had enrolled in a Certificate IV course, each of cl 5A404(d)(iii) and cl 5A404(d)(iv) does refer to, among the conditions to be satisfied, an applicant for a student visa providing evidence that he or she has substantially completed a course leading to a Certificate IV qualification. However, it is not apparent that Mrs Patel satisfied any of the other conditions which would have made either of these provisions applicable to her circumstances. In its reasons, the Tribunal found that on Mrs Patel’s evidence, Mrs Patel had withdrawn from the course leading to the Certificate IV qualification at a very early stage. I have construed this finding by the Tribunal to be a finding that Mrs Patel would not have been able to satisfy the requirement of having substantially completed a course leading to a Certificate IV qualification; and for that reason alone, even if Mrs Patel had, otherwise, been capable of satisfying the other conditions in cl 5A404(d)(iii) or cl 5A404(d)(iv), she would have failed to satisfy the requirements of cl 5A404.

23    The Federal Magistrate did not err in concluding that there was no jurisdictional error by the Tribunal in the manner in which it had dealt with this issue.

24    Further, the Federal Magistrate did not err in finding that the Tribunal had correctly applied cl 5A404(b). This clause requires a visa applicant with an Overall Band Score of 5.0 on the IELTS test, to provide evidence that he or she “will undertake” the relevant ELICOS course. It does not, therefore, avail a visa applicant to provide evidence that he or she has already undertaken such a course. The rationale for this sequence is somewhat elusive, but the construction of the requirement is clear, and Mrs Patel did not satisfy the requirement. Also, the Federal Magistrate did not err in relation to his finding that the department had advised Mrs Patel of the cl 5A404 requirements.

25     It follows that the appeal is dismissed.

Associate:

Dated:    16 April 2012