Bachalikura v Minister for Immigration
[2015] FCCA 2583
•8 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BACHALIKURA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2583 |
| Catchwords: MIGRATION – Application to review decision of Migration Review Tribunal – no jurisdictional error. |
| Legislation: Education Services for Overseas Students Act 2000 (Cth), s.19 Migration Act 1958 (Cth), s.359AA Migration Regulations 1994 (Cth) |
| Cai v Minister for Immigration & Anor [2011] FMCA 922 Jayasekara v Minister for Immigration and Multicultural Affair (2006) 156 FCR 199; [2006] FCAFC 167 Minister for Immigration and Citizenship v SZLIX (2008) 100 ALD 443; [2008] FCAFC 17 Singh v Minister for Immigration & Anor [2011] FMCA 972 Singh v Ministerfor Immigration & Anor [2012] FMCA 821 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 SZRUR v Minister for Immigration and Border Protection and Another (2013) 216 FCR 445; [2013] FCAFC 146 |
| Applicant: | RAVI KANTH BACHALIKURA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 806 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing date: | 8 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 8 September 2015 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The Application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $4,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 806 of 2014
| RAVI KANTH BACHALIKURA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application seeking review of a decision of the Migration Review Tribunal (now known as the Administrative Appeals Tribunal) affirming a decision of a delegate of the First Respondent not to grant the Applicant a student visa.
Relevantly, the Applicant applied for the visa in question on 26 April 2012. The delegate sought additional information, including financial information and an explanation for the Applicant’s unsatisfactory course attendance at Cornwell Institute and for gaps in his periods of study. The Applicant’s migration agent provided some additional documents but indicated that the Applicant needed four weeks to provide further evidence and an explanation. No further evidence was provided.
The delegate refused the application on the basis that the Applicant did not satisfy certain of the requirements for the visa in the absence of the requested information.
The Applicant sought review by the Tribunal. He attended a Tribunal hearing in February 2014. The Applicant prepared and filed and (in the absence of any opposition from the Minister), relies on a transcript of the Tribunal hearing.
In its invitation to the hearing the Tribunal asked the Applicant to provide all documents he relied on to meet the criteria for the visa, including in relation to his past studies, an explanation for any gaps in his enrolment and any documentary evidence relevant to his explanation.
In its reasons for decision the Tribunal referred to the fact that the delegate had found that the Applicant did not satisfy cl.572.235 in Schedule 2 to the Migration Regulations 1994 (Cth) because he had not complied substantially with the conditions of his last substantive or any subsequent bridging visa he held and also that he did not meet cl.572.223(2)(a) in Schedule 2.
The Tribunal summarised the Applicant’s evidence at the Tribunal hearing, including his awareness of conditions applicable to his previous student visa and his acknowledgement that on 15 December 2009 the Cornell Institute of Business & Technology (“Cornell”) had certified him as not achieving satisfactory course attendance in a Certificate IV in Business course.
The Tribunal recorded the Applicant’s explanation that he had only done three months of the course and then stopped attending because he went to undertake a Masters in IT at Central Queensland University (“CQU”). He explained to the Tribunal that he did not tell Cornell he was leaving because his migration agent said he did not have to do so. He agreed that the college was expecting him to attend, but that he did not do so. The Applicant also explained to the Tribunal that he was just filling the gap before the Masters course. He did not tell Cornell that he was not going to continue the course. After he received the offer letter from CQU, he started the Masters course.
The Tribunal recorded that it put certain information to the Applicant at the Tribunal hearing pursuant to s.359AA of the Migration Act 1958 (the “Migration Act”). The transcript prepared by the Applicant is consistent with the Tribunal’s account in its reasons. Relevantly, the Tribunal invited the Applicant to comment on the fact that his previous student visa (valid from 25 September 2009 to 27 April 2012) was subject to condition 8202(3) in Schedule 8 to the Migration Regulations which was met if his course provider did not certify his attendance or results as unsatisfactory, and also put to him that on 15 December 2009 Cornell had certified him as not achieving satisfactory course attendance in the Certificate IV in Business.
The Tribunal explained that this information was relevant because it indicated that the Applicant had not complied with condition 8202(3) and that if the Tribunal relied on that information it would find that he did not meet the criterion for the visa for which he was applying in cl.572.235 and that it would have “no other option” but to affirm the decision to refuse to grant him a student visa.
As required under s.359AA, the Tribunal advised the Applicant that he could request further time to respond or comment, including after the hearing. The Applicant indicated that he wished to respond immediately. He did so. The Tribunal recorded the Applicant’s response that he knew it was a mistake because he had to tell the college, but he was misinformed by his agent. He also told the Tribunal it was not his intention to breach his visa conditions.
The Tribunal summarised the relevant law. It found that the relevant subclass of Student visa was subclass 572 and that there was no suggestion the Applicant met the criteria for any other subclass. The Tribunal explained that one of the applicable criteria for a subclass 572 visa was the criterion in cl.572.235 which required that the Applicant had complied substantially with the conditions that applied to the last of any substantive visa held by him and to any subsequent bridging visa.
The Tribunal found that, as held by the Federal Court in Jayasekara v Minister for Immigration and Multicultural Affair (2006) 156 FCR 199; [2006] FCAFC 167, “[t]here are some conditions to which the concept of substantial compliance has no logical application” because either the condition is satisfied or it is not. In Jayasekara the majority of the Full Court of the Federal Court held that the requirement of a certificate as to academic results under condition 8202(3) as it then stood was one such condition.
The Tribunal found that such reasoning also applied to condition 8202(3) as amended and insofar as it imposed a requirement of an absence of a relevant certification of unsatisfactory course progress or attendance by the education provider. The Tribunal cited Cai v Minister for Immigration & Anor [2011] FMCA 922 and Singh v Minister for Immigration & Anor [2011] FMCA 972 in support of these propositions and concluded that the requirement in condition 8202(3) in issue in relation to the Applicant was one to which the concept of substantial compliance had no logical application because either the condition was satisfied or it was not.
The Tribunal addressed the fact that Cornell had certified that the Applicant had not achieved satisfactory course attendance in the terms specified in condition 8202(3). It found that as there had been such certification for the purposes of condition 8202(3), the Applicant did not comply with that condition and accordingly there was no substantial compliance. It found that the Applicant had not complied with the equivalent criteria in relation to other subclasses of student visa. The Tribunal therefore found that the decision under review must be affirmed.
The Applicant sought review by application filed in this Court on 26 March 2014. As indicated he filed an affidavit attaching a transcript of the Tribunal hearing.
There are three grounds in the application. The first ground is that the Applicant “was misled by [his] migration agent”. The second ground is that “[he] continued his studies in undertaking a Masters in IT at CQU and [he] did not intentionally mislead the College as [he] was advised by the migration agent that [he] did not have to tell the College”. Ground 3 is that the Tribunal ignored his explanation.
In oral submissions today the Applicant took the Court through the material in the Courtbook, and claimed that he had answered the Tribunal’s questions at the Tribunal hearing as openly and honestly as he could. He asserted that while he was not aware that a notification had been given to the Department of Immigration by Cornell, he was aware in 2009 that the college had certified him for unsatisfactory course attendance.
The Applicant submitted that all he did wrong was not to notify Cornell. He explained that he left the Cornell course in circumstance where he was attending the Masters in IT course. Because of what his migration agent told him it was his understanding that he did not have to tell Cornell when he was going to a different college. He claimed his migration agent had misled him, that it was not his intention to breach his visa conditions and that when he left Cornell he was still studying, albeit in a different course.
The Applicant submitted that while he was aware of visa conditions and understood that he had to be enrolled without a gap, in his view he had met this requirement as he was just enrolled in a different course. He had not notified the Department in 2009 that he was doing a different course.
The First Respondent submitted that no jurisdictional error had been established on any of the bases contended for by the Applicant.
The Applicant applied for a subclass 572 visa. To be granted such a visa he had to meet the applicable criteria in Schedule 2 to the Migration Regulations, in particular, the requirement in cl.572.235 of substantial compliance with the conditions that applied to his last substantive visa. As the Tribunal pointed out, the Applicant’s previous student visa, which was in force from September 2009 to April 2012, was subject to condition 8202, which relevantly provided that:
(1) The holder… must meet the requirements of subclauses (2) and (3).
…
(3) A holder meets the requirements of this subclause if neither of the following applies”
(b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
The difficulty for the Applicant is that on 15 December 2009 the education provider, Cornell, certified, for the purposes of condition 8202(3), the Applicant as not achieving satisfactory course attendance for s.19 of the Education Services for Overseas Students Act 2000 (Cth) and also for standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students.
Having regard to the certification the Tribunal found that there had been failure to comply with condition 8202 because of the fact that the certification had issued. The Tribunal also found that condition 8202 was one to which the notion of substantial compliance had no application.
No error is apparent in such reasoning. The Tribunal proceeded on the basis that the reasoning of the majority in Jayasekara applied to condition 8202(3) as amended and as applicable to this case (see in that respect Cai and Singh). There is no suggestion of any authority to the contrary. The requirement of an absence of relevant certification of unsatisfactory course progress or unsatisfactory course attendance by the education provider is one to which the concept of substantial compliance has no logical application. Either there is a certification or there is not. On this basis either condition 8202 is satisfied in the absence of a certification or not satisfied if there is a certification.
The Tribunal correctly cited and applied the reasoning in Jayasekara as followed in Cai and Singh. I am not satisfied that either of the decisions of the Federal Magistrates Court applying such reasoning to condition 8202(3) in the form applicable in this case is clearly wrong. I would follow such reasoning in the interests of comity. In any event, I agree that there is no scope for the notion of substantial compliance with this particular aspect of condition 8202.
In the circumstances, the Tribunal correctly proceeded on the basis that the Applicant’s evidence as to his personal circumstances and his explanation for not having informed Cornell of his change in courses was not relevant to its finding in relation to non-compliance with condition 8202. As was held in Singh v Ministerfor Immigration & Anor [2012] FMCA 821 at [33] the only factor required to be considered by the Tribunal in such circumstances was whether or not the Applicant was the subject of a certificate which, on its face, appeared valid. In the absence of any suggestion the certificate was invalid the Tribunal proceeded correctly in acting upon the certificate. There is nothing in the material before the Court or in the Applicant’s admissions that raises any issue as to the validity of the certification. The decision-maker (in this instance, the Tribunal) was not required to go behind the certificate.
The Applicant, who is self-represented contended that he was misled by his migration agent. While there is no evidence before the Court in that respect, this is not a case in which there would be any point in giving the Applicant the opportunity to put on further evidence in that respect. Had there been any possibility that further evidence might have been relevant to my determination I would have given him that opportunity in the interests of procedural fairness. However, taking the Applicant’s claims at their highest and, for present purposes, proceeding on the basis that he was misinformed and hence misled by his migration agent in 2009 such events would not establish any jurisdictional error on the part of the Tribunal.
There are circumstances in which migration agent fraud may be such as to stultify the operation of the legislative scheme in relation to review by a Tribunal and hence affect the validity of the Tribunal decision as considered by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35. However nothing in what the Applicant has asserted indicates any possibility that the claimed conduct of the agent might amount to a fraud on the Tribunal. Indeed, there was no suggestion of any fraud in the agent’s dealing with the Applicant. In any event, even if the migration agent had engaged in some fraud on the Applicant there is nothing to indicate that misleading the Applicant in relation to what he had to tell Cornell in 2009 in any way disabled the Tribunal from the due discharge of its imperative statutory functions with respect to the conduct of its subsequent review such as to amount to a fraud on the Tribunal (see SZFDE at [51]). I also note that the High Court made it clear in SZFDE that mere bad or negligent advice, or some other mishap, was not such as to vitiate the Tribunal decision (also see Minister for Immigration and Citizenship v SZLIX (2008) 100 ALD 443; [2008] FCAFC 17).
Accordingly, while I have had regard to the principles considered by Allsop CJ in SZRUR v Minister for Immigration and Border Protection and Another (2013) 216 FCR 445; [2013] FCAFC 146 in relation to the situation of a self-represented applicant seeking to prove fraud of a third party, in this case the circumstances relied on by the Applicant, which were explained very clearly by him, are not such as to raise concern about the possibility of any arguable case of migration agent fraud on the Tribunal in the sense considered in SZFDE. The bad advice he claims was given to him in 2009 in relation to his obligation to inform the Cornell Institute is not such as to vitiate the Tribunal review conducted in 2014.
Insofar as in grounds 1 and 2 the Applicant otherwise relied on being misled by his migration agent and his claim that he did not intentionally mislead the college, such matters do not establish jurisdictional error on the part of the Tribunal. Accepting what the Applicant has said for present purposes, the difficulty is that he did not meet condition 8202(3). In these circumstances the Tribunal has not been shown to have fallen into jurisdictional error.
It may be that the Applicant can raise his circumstances with the Minister for Immigration. However the Court has no discretion on compassionate or other grounds to quash the Tribunal decision where no jurisdictional error has been established on the part of the Tribunal.
Finally, contrary to ground 3 in the application, the Tribunal understood and summarised the Applicant’s explanation for his failure to inform Cornell. It did not ignore the explanation in the sense of not having any regard to it at all. The Tribunal was aware of the explanation, but it also properly understood that the issue was simply objectively whether the Applicant had been certified for unsatisfactory course attendance or not. It had regard to the certification.
In these circumstances, the Applicant’s explanation for why the certification occurred had no relevance, because there was no logical room for the concept of “substantial” compliance in relation to such a condition. No jurisdictional error has been established on any basis contended for by the Applicant.
The Applicant has been unsuccessful. It is appropriate that he meet the Minister’s costs. The amount sought is reasonable in light of the nature of this and other similar matters.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 21 September 2015
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