Aziz v Minister for Immigration

[2007] FMCA 221

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AZIZ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 221

MIGRATION – MRT decision – qualification for second student visa – substantial compliance with condition 8202 – irrelevance of excuses for inability to obtain education provider’s certificate of satisfactory academic result – application for judicial review of Tribunal decision dismissed for absence from hearing – application for reinstatement refused.

Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(c), 16.05(2)(a)
Migration Act 1958 (Cth), s.353

Migration Regulations 1994 (Cth), Sch.2 item 572.212, Sch.8 items 8202, 8202(3), 8202(3)(b)

Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167
Katisat v Minister for Immigration & Ors [2005] FMCA 652
Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611
Minister for Immigration & Multicultural Affairs v Modi (2001) 116 FCR 496
Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908

Applicant: MOHAMMED ABDUL AZIZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG1918 of 2005

Judgment of: Smith FM

Hearing date: 14 February 2007

Delivered at: Sydney

Delivered on: 14 February 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr P Reynolds

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The applicant’s application under r.16.05(2)(a) to set aside orders made on 15 January 2007 is refused.

2. The applicant must pay the first respondent’s costs in the sum of $500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1918 of 2005

MOHAMMED ABDUL AZIZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The substantive application in this matter was filed on 20 July 2005 and seeks orders by way of judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) which was dated 15 July 2005.  The Tribunal affirmed a decision taken by a delegate on 5 October 2004 which refused to grant to the applicant a student (temporary) (class TU) subclass 572 visa. 

2. The applicant sought that visa so that he could undertake studies in a course expected to last from 20 September 2004 to 1 September 2006.  Due to the protraction of the proceedings in the Tribunal and in this Court, the applicant has been able to complete those studies, presumably on bridging visas.  However, he tells me that there still is a purpose in having the Tribunal’s decision set aside, because he wishes to continue more studies in Australia.  This history illustrates the effects of the present bridging visa system, but is not relevant to the issues which I must decide today. 

3. The application for review was listed for a final hearing on 15 January 2007. The applicant had previously appeared in person before me at a first court date on 16 August 2005, and at a directions hearing on 11 October 2005 when I set the matter down. He had been told on those occasions that if he did not attend Court, his case would be dismissed. He did not attend at the final hearing, and I dismissed the application under r.13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth).

4. The applicant has now filed an application seeking orders that I set aside the order made in his absence.  In support he has filed an affidavit which states: 

   I was mentally sick on 15 of January.  I had not attended the hearing for my sickness.  I believe the honourable magistrate will look into the errors of the tribunal and will give a favourable decision to me. 

5. No further details nor medical evidence of the claimed illness has been presented to the Court by the applicant.  His affidavit does not satisfy me that he was incapacitated from attending Court and from even contacting the Court to explain his absence on the day.  For that reason, I would refuse the application to reinstate the proceeding. 

6. My second reason for refusing today’s application is that, in my opinion, it would be futile to reinstate his application for judicial review.  I shall explain why. 

7. The student visa applied for by the applicant in September 2004 required him to satisfy a criterion that “the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject” (Migration Regulations 1994 (Cth), Sch.2 item 572.212). 

8. The last visa held by the applicant before his 2004 application was a visa of the same subclass, which had been granted from 2 December 2002 until 1 September 2004.  Attached to that visa was condition 8202, the obligations of which included: 

   (3)A holder meets the requirements of this subclause if: 

   (a)in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled: 

   (i)     for a course that runs for less than a semester – for the course; or

   (ii)     for a course that runs for at least a semester – for each term and semester of the course; and

   (b)in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory: 

   (i)     for a course that runs for less than a semester – for the course; or

   (ii)     for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course. 

9. The evidence before the Tribunal, which was substantially uncontested, showed that during the life of his previous visa the applicant studied an English course for some four months, and then enrolled in a Diploma of Information Technology (Software Development) at Alpha Beta College from 14 April 2003 to 30 July 2004.  The records of attendance at that course were provided by the college to the Department and to the Tribunal.  They showed that the applicant had been overseas between January and May 2004, and also had been absent at other periods, so that his attendance in all terms of the course during 2003 and 2004 was not satisfactory.  The records of the college also showed that the applicant had failed 18 of the 20 courses that he had attempted, and passed only two.  There was no evidence before the Tribunal that the college had certified that the applicant had “achieve[d] an academic result” which was “at least satisfactory”. 

10. The applicant engaged solicitors while the matter was before the Tribunal, whose submissions sought to raise doubts about some of the college’s attendance records.  However, they did not contest the essential effect of the records, and did not present any evidence of a certificate required by condition 8202(3)(b).  They also engaged the Tribunal in correspondence on whether the Tribunal should summons the college to produce more of its records.  The Tribunal ultimately declined to do that, and proceeded to make its decision. 

11. The Tribunal’s statement of reasons made clear findings:  

    33.The evidence before the Tribunal indicates that the visa applicant did not comply substantially with the visa that he held whilst a student at Alpha Beta College.  The evidence provided to the Department from the education provider stated that the visa applicant’s academic progress was not satisfactory from 2003 to 2004.  The education provider claiming that the visa applicant had attended for only 14 hours during 2004 (D1, ff. 22‑23).  Further to this that the visa applicant based on the academic transcript for the period April 2003 to July 2004 showed that he failed 17 units, and was awarded one credit and one distinction (D1, f. 16). 

    … 

    38.The Tribunal finds that based on the information before it the evidence clearly indicates that the visa applicant whilst enrolled at Alpha Beta College failed to meet the relevant attendance requirements and in addition to this did not maintain satisfactory academic performance as certified by Alpha Beta College.  The Tribunal is not satisfied on the basis of the evidence before it that the visa applicant has complied substantially with the conditions on his previously held student visa. 

12. In my opinion, those findings were undoubtedly open to the Tribunal on the evidence before it. 

13. The Tribunal also assessed various explanations the applicant gave for his absence from Australia and also for other absences from his studies due to ill health.  It referred to judicial authorities which suggested to the Tribunal that it was entitled to take into account generally “a range of subjective matters such as the applicant’s reasons for failing to satisfy those requirements” of condition 8202 (see Minister for Immigration & Multicultural Affairs v Modi (2001) 116 FCR 496 at [14]). The Tribunal’s conclusion in that respect was:

    41.The evidence before the Tribunal indicates that the visa applicant committed a significant breach of condition 8202 attached to his visa whilst a student at Alpha Beta College.  Thus he is incapable of satisfying the Tribunal on review that he had complied substantially with condition 8202 at time of application.  The visa applicant has raised through his representative issues pertaining to the collation of attendance by the education provider but has provided no evidence to corroborate these assertions.  The Tribunal having regard to the circumstances of the breach and the significance of the breach is unable to reach a finding of substantial compliance at time of application. 

14. By addressing those matters, the Tribunal may have misapprehended the effect of a failure to satisfy condition 8202(3)(b) in the context of a decision on substantial compliance under a visa criterion such as item 572.212.  The Full Court in Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167, delivered subsequent to the Tribunal’s decision, held by a majority that the present terms of condition 8202(3)(b) – which differ substantially from the terms considered in Modi – do not allow room for the assessment of explanations and surrounding circumstances to mitigate the absence of a certificate from the education provider in terms of condition 8202(3)(b).  Their Honours said: 

    14Turning to condition 8202(3), we note first that counsel accepted that the four paragraphs of the condition are cumulative; there would not be substantial compliance if an applicant satisfied three paragraphs. 

    15The substantial compliance requirement might, as counsel’s argument suggests, be apt in the case of par (c) where the condition is expressed in terms of the decision‑maker being satisfied of a particular percentage of contact hours.  However, in the present case it is not suggested there was any certificate at all.  There was thus no compliance, let alone substantial compliance.  Still less could reasons or explanations for non‑compliance amount to compliance, substantial or otherwise. 

    16There is an obvious policy behind the way the condition is framed.  Questions of academic progress should be left to the judgment of the education provider rather than a Departmental decision‑maker or the Tribunal, who are less well fitted to make such judgments: Khan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 141 at [4].

    17Baidakova and the earlier decision referred to by Katz J in that case, Kim v Witton (1995) 59 FCR 258 (Sackville J) dealt with different conditions, to which a substantial compliance criterion could be applied. In Baidakova the condition required a certain percentage of class attendance; in Kim, it was a condition requiring the temporary entry permit holder not to work. 

15. In my opinion, any misapprehension of law by the Tribunal in the present case arising from Jayasekara has not resulted in any jurisdictional error on the part of the Tribunal.  This is because its consideration of matters which, in the opinion of the Full Court, are legally irrelevant, was immaterial to the outcome of the case, since the Tribunal’s decision was not ultimately based upon any irrelevant consideration.  In my opinion, the findings of the Tribunal in paragraphs 33 and 38 sufficiently and correctly answered the applicant’s ability to satisfy item 572.212.  The Tribunal therefore provided reasons for affirming the delegate’s decision which, in my opinion, fully addressed the issue which the jurisdiction of the Tribunal required it to address. 

16. Moreover, even if the Tribunal erred materially by adopting an interpretation of item 572.212 in its application to condition 8202(3) which was overruled in Jayasekara, that interpretation when applied to the uncontested evidence before the Tribunal would render it futile to contemplate the remitter of the matter to the Tribunal.  The applicant therefore in my opinion has no prospect of obtaining the orders he seeks in the present substantive application. 

17. The applicant filed an amended application in the substantive proceeding apparently prepared by a lawyer, although at no point has he been represented by a lawyer on the Court’s record.  This contains five grounds which are explained in “contentions”: 

    The grounds of the application are: 

    1.The MRT failed to exercise its power under s363 of the Migration Act to obtain information which the MRT knew was crucial to the decision and this failure amounts to a jurisdictional error.

    2.The MRT failed to exercise its duties required under s353 of the Migration Act and this failure amounts to a jurisdictional error.

    3.The MRT failed to take into account relevant considerations in determining whether the applicant had substantially complied with the visa conditions attached to the applicant’s previous visa, this failure amounts to a jurisdictional error. 

    4.The member of the MRT failed to deal with the allegation of bias and failed to consider the issues relating to the invitation of dismissing himself when they were raised.  This failure amounts to a jurisdictional error. 

    5.The decision is otherwise against the rules of natural justice. 

    CONTENTIONS 

    37.The applicant concedes that he breached visa condition 8202. 

    38.The applicant contends that breaching a visa condition under the circumstances which existed at the time did not amount to substantial non‑compliance of the applicant’s previous visa conditions. 

    39.The applicant contends that the MRT failed to take into account considerations enunciated in the policy guidelines particularly sections 3‑6 of PAM3: Sch8 – Compliance with visa conditions. 

    40.The applicant contends that the MRT wrongly declined to exercise its discretionary power under s363(3) under the circumstances to summon the complete file of the applicant held by Alpha Beta College.  The failure to exercise its discretionary power under the circumstances showed that the presiding Member had a closed mind before and after the hearing. 

    41.The applicant contends that the MRT breached its duty required under section 353 of the Migration Act (See: Katisat v Minister for Immigration & Ors [2005] FMCA 652 (10 May 2005)). 

18. In my opinion, these grounds do not have prospect of any success. 

19. The contention that the Tribunal failed to take into account relevant considerations enunciated in the guidelines is now fully answered by the Full Court’s decision in Jayasekara. 

20. The contention that the Tribunal wrongly declined to exercise its power to issue a summons to the college does not have prospects of success.  The case cited by the applicant, Katisat v Minister for Immigration & Ors [2005] FMCA 652, was set aside in the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908, where Bennett J at [63] and [67] held that the Tribunal was not required to comply with a request for the issue of summonses. In the present case I do not consider that the applicant has prospects of persuading the Court that the Tribunal’s exercise of discretion miscarried. Moreover, even if it did, as I have explained, it would be futile to remit the matter on that ground, since a further investigation into the records of the provider for the purposes sought by the applicant’s solicitors could not produce a different outcome before the Tribunal.

21. The contention that the Tribunal either failed to consider an allegation of bias, or appeared biased, due to its decision in relation to the summons has, in my opinion, no substance shown in the material before me. 

22. The contention that the Tribunal failed to observe duties required under s.353 of the Migration Act 1958 (Cth) has no substance in view of the interpretation of that provision taken by the High Court in Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611.

23. Considering all of the arguments presented by the applicant and the Tribunal’s reasons in the manner as I have discussed above, I am not persuaded that there would be any purpose in setting aside my previous order dismissing the substantive application.  I would therefore refuse the present application for that reason also. 

I certify that the preceding twenty‑three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  2 March 2007