Baidakova v Minister for Immigration and Multicultural Affairs

[1998] FCA 1436

FEDERAL COURT OF AUSTRALIA

MIGRATION – review of a decision of the Immigration Review Tribunal – criterion for the grant of a Student (Temporary) visa – whether applicant had “complied substantially” with “course requirements” in connection with earlier visa – “qualitative” aspect of the matter. 

Kim v Witton (1995) 59 FCR 258

Migration Regulations – Schedule 2, cl 560.213

Migration (1993) Regulations - Schedule 2, cl 560.741(a); Schedule 9, condition 9107

NATALIA BAIDAKOVA v THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 599 of 1998

KATZ J
12 NOVEMBER 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 599  of   1998

BETWEEN:

NATALIA BAIDAKOVA

APPLICANT

AND:

THE MINISTER FOR IMMIGRATION

& MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:

KATZ J

DATE OF ORDER:

12 NOVEMBER 1998

WHERE MADE:

SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 599  of   1998

BETWEEN:

NATALIA BAIDAKOVA

APPLICANT

AND:

THE MINISTER FOR IMMIGRATION

& MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:

KATZ J

DATE OF ORDER:

12 NOVEMBER 1998

WHERE MADE:

SYDNEY

REASONS FOR JUDGMENT

Section 486 of the Migration Act 1958 (Cth) (“the Act”) confers on this Court jurisdiction with respect to “judicially-reviewable decisions”. Among the decisions which are reviewable by this Court in the exercise of that jurisdiction are decisions of the Immigration Review Tribunal (“the Tribunal”) (see par 475(1)(a) of the Act).

In this proceeding, review of a decision of the Tribunal is sought.

The decision concerned is one which was made by the Tribunal on 22 May 1998, consequent upon an application for review which had been made to it by Ms Baidakova over seventeen months earlier, on 16 December 1996.  The Tribunal’s decision affirmed an earlier decision made by the Migration Internal Review Office (“the MIRO”) on 20 November 1996, consequent upon an application for review which had been made to it by Ms Baidakova on 1 October 1996.  The decision of the MIRO had in turn affirmed an earlier decision made by a delegate of the Minister for Immigration and Multicultural Affairs (“the delegate”) on 13 September 1996, consequent upon an application which had been made to the Minister by Ms Baidakova on 18 July 1996.  Ms Baidakova’s application to the Minister, which had been made while Ms Baidakova was in Australia, had been one for a Student (Temporary) visa (Class TU, Subclass 560) and the delegate’s decision on that application had been one to refuse to grant it.

(It is probably as well to mention now that Ms Baidakova’s unsuccessful application to the Minister had been for permission to remain in Australia for the purpose of undertaking a two year Master of Education course at the University of Queensland. That course had been scheduled to begin on 17 July 1996 and end on 27 June 1998. Although the evidence before me does not appear to indicate the intended duration of the visa unsuccessfully applied for by Ms Baidakova, I infer that it would have coincided more or less with that of the course. A question therefore arises in my mind as to whether this Court should be reviewing the Tribunal’s decision, given that if that decision were now to be held to have been erroneous, the matter to which that decision related might not be capable of being usefully referred to the Tribunal for further consideration (see par 481(1)(b) of the Act), as is being sought by Ms Baidakova. The Minister, however, took no such point before me and I consider that, in the circumstances, I should proceed herein on the basis that, even if it would be useless to refer to the Tribunal for further consideration the matter to which its decision related (because the Tribunal would now no longer have the power to grant Ms Baidakova’s application), there could still be some practical benefit to Ms Baidakova in any future dealings which she may have with the Department if it were to be held that her application had not been lawfully refused during the time within which a decision on it could have been made.

I also note incidentally that the rejection of her application appears not to have prevented Ms Baidakova from undertaking the University of Queensland course while she remained in Australia, awaiting the outcome of the process which she had initiated of review of the adverse decision on her visa application.  Further, according to her sworn testimony given before the Tribunal on 17 September 1997, it would appear that she then expected (subject, presumably, to her remaining in Australia for so long) to complete that course by its scheduled completion date, 27 June 1998.  However, whether or not she did then complete it or has since done so, I do not know.)

Clause 560.213 of Schedule 2 to the Migration Regulations provides relevantly (and has so provided at all material times) that a criterion for the grant of a visa of the type for which Ms Baidakova unsuccessfully applied, which criterion is to be satisfied at the time of application therefor, is that an applicant who applies therefor in Australia “has complied substantially with the conditions to which the visa … held … by the applicant is … subject”.

On 18 July 1996, which, as already mentioned above, was the date of the making of her unsuccessful application to the Minister, Ms Baidakova held a type of visa known as a transitional (temporary) visa. She held it by virtue of subreg 4(2) of the Migration Reform (Transitional Provisions) Regulations (“the Transitional Regulations”), which provides as follows,

“If, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a temporary entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (temporary) visa that:
 (a)    permits the holder to remain in Australia; and

(b) is subject to the conditions (if any) to which the entry permit was subject; and

(c) has a visa period ending on the day on which the entry permit would have stopped being in force.”

The provision just quoted was applicable to Ms Baidakova’s circumstances because, immediately before 1 September 1994, she, a non-citizen, had been in Australia as the holder of a Class 560 (Student (Category A)) entry permit, a type of temporary entry permit which had been granted to her on 28 March 1994 in accordance with the Migration (1993) Regulations (“the 1993 Regulations”). The 1993 Regulations were repealed as of 1 September 1994 by the Transitional Regulations: see regs 2 and 40 of and the Schedule to the Transitional Regulations.

Because Ms Baidakova’s permit granted in accordance with the 1993 Regulations would have stopped being in force on 24 July 1996, her transitional (temporary) visa had, by reason of par 4(2)(c) of the Transitional Regulations, a visa period ending on that date as well. Further, because that permit had been subject (relevantly) to a condition that she satisfy the requirements of the course the undertaking of which had been the basis of the grant to her of the permit (see par 560.741(a) in Schedule 2 to the 1993 Regulations and condition 9107 in Schedule 9 to the 1993 Regulations), her transitional (temporary) visa was, by reason of par 4(2)(b) of the Transitional Regulations, subject to that condition as well.

Given the condition to which her transitional (temporary) visa was (relevantly) subject, it follows that a criterion for the grant of the visa for which Ms Baidakova unsuccessfully applied, which criterion was required to be satisfied at the time of application therefor, was that she had complied substantially with the condition of her transitional (temporary) visa that she satisfy the requirements of the course the undertaking of which had been the basis of the grant to her of her temporary entry permit in March of 1994.

In substance, the Tribunal affirmed the decision of the MIRO because it was not satisfied that, at the time of her application to the Minister, Ms Baidakova had complied, either strictly or substantially, with the condition of her transitional (temporary) visa that she satisfy the requirements of the course the undertaking of which had been the basis of the grant to her of her temporary entry permit in March of 1994.

Of the grounds of review by this Court of a judicially-reviewable decision (which grounds are primarily set out in subs 476(1) of the Act), only one was ultimately relied on for Ms Baidakova at the hearing of her application for an order of review, namely, that the Tribunal’s decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the Tribunal (see the second limb of par 476(1)(e) of the Act).

In order the better to deal with the argument on Ms Baidakova’s behalf as to the making by the Tribunal of an error of law of the type just described, I should refer first to certain background matters additional to those already mentioned above.

The course the undertaking of which had been the basis of the grant to Ms Baidakova of her temporary entry permit in March of 1994 was a two year Associate Diploma of Business Management course at an educational institution in Sydney called Alpha Beta College. The course had been scheduled to begin on 20 June 1994 and end on 20 June 1996, although it appears that, in the result, it ended on 1 March 1996.

One particular requirement of that course had been that Ms Baidakova attend at least ninety percent of the classes therein.  However, according to Alpha Beta College, Ms Baidakova had attended only thirty-five percent of the classes therein during the period between 20 June 1994 and 1 March 1996.

In a statutory declaration supplied to the Tribunal for the purpose of its review of the decision of the MIRO, Ms Baidakova swore that she believed that her level of attendance at classes in the course had been below ninety percent, but that she also believed that it had been above thirty-five percent.  At the same time, however, she acknowledged that she could not prove that her level of attendance had been above thirty-five percent.

In the circumstances just outlined, it is obvious that the only argument which was available to Ms Baidakova before the Tribunal if she wished to succeed in overturning the decision of the MIRO was that, although she had not strictly complied with the ninety percent class attendance requirement, she had “substantially” complied with it.

In determining Ms Baidakova’s application for review, the Tribunal found that she had attended only thirty-five percent of her classes, as the College had asserted.  No argument has been made in this proceeding that the Tribunal erred in making that finding.

Further, the Tribunal was not satisfied that Ms Baidakova had complied substantially with the ninety percent class attendance requirement. It was the Tribunal’s rejection of Ms Baidakova’s argument of substantial compliance with that requirement which was claimed before me to involve the error of law referred to above.

The argument before me on Ms Baidakova’s behalf relied particularly on the decision of Sackville J in Kim v Witton (1995) 59 FCR 258 and I should therefore refer to that decision before proceeding further. Kim was a case in which a decision to refuse an application for a temporary entry permit had been affirmed by the Tribunal because it was not satisfied that the applicant therefor had, as he was required to do as a condition of the grant thereof, “complied substantially” with a condition in his previous temporary entry permit that he not work during its currency. In the course of dismissing the applicant’s application for review of the Tribunal’s decision, Sackville J discussed (at 270-72) the requirement of substantial compliance as it applied in the context of the case before him.

The essence of his Honour’s view on the substantial compliance issue was as follows,

“Whether the applicant has ‘complied substantially’ with a condition prohibiting work is a question of fact, to be determined having regard to the particular circumstances of the case.

The Tribunal in the present case summarised and accepted the principles formulated by the Immigration Review Tribunal in Re Sekido. In Re Sekido, the Senior Member considered that it was appropriate, in determining the question of substantial compliance, to take into account the ‘proportionality’ of the breach and the bona fides (or lack of bona fides) of the applicant….

Neither counsel disagreed with the statement of principle in Re Sekido, and I think it is broadly correct.  In my opinion, in determining whether an applicant has complied substantially with a condition imposing a prohibition, the Tribunal should consider the relevant circumstances of the case.  Without being exhaustive, these include:

·           the nature of the breach of condition;

·the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;

·whether or not the applicant deliberately flouted the condition; and

·if  the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.

In general, it is a matter for the Tribunal to assess the weight to be accorded to these factors, having regard to the circumstances of the case….

The mere fact that an applicant did not appreciate that his or her conduct breached a condition does not necessarily establish that he or she had complied substantially with that condition.”

I should mention also that, earlier in his reasons for judgment, Sackville J had (at 263) quoted from the Tribunal’s statement of findings and reasons in Kim. The passage from the Tribunal’s statement of findings and reasons quoted by Sackville J had used the terms “quantitative” and “qualitative” when discussing the notion of “substantial compliance”, saying,

“Whether a person can be regarded as having ‘substantially complied’ with a condition is not only a quantitative matter, or question of proportionality, but also a qualitative matter which may concern factors such as the bona fides of the Applicant, so that a person who has sought to comply with the condition but made an innocent error or was thwarted from complying with the condition through no fault of his or her own may be said to have ‘substantially complied’ with the condition as distinct from a person who knowingly disregards the condition.”

In his submissions before me, counsel for Ms Baidakova wrongly attributed to Sackville J, rather than to the Tribunal, the passage which I have just quoted from the Tribunal’s statement of findings and reasons in Kim.  That led him to submit that the reasons of Sackville J in Kim had rendered it necessary for the Tribunal to take into account the “qualitative” aspect of the matter when determining the question whether Ms Baidakova had complied substantially with the course requirement of ninety percent class attendance.  He then submitted that the Tribunal had fallen into error by not taking into account the “qualitative” aspect of the matter in two particular respects.

I understood counsel to be using the term “qualitative” in the present context in the same sense in which he mistakenly believed Sackville J to have used it; in other words, in using it, counsel was submitting in a shorthand way that it had been incumbent on the Tribunal to determine Ms Baidakova’s bona fides, so that if she had sought to attend ninety percent of her classes, but had failed to do so through innocent error, or if she had been thwarted from attending ninety percent of her classes through no fault of her own, then the Tribunal should have found that she had nonetheless complied substantially with the ninety percent class attendance requirement.  I am content to proceed herein on the basis that that approach to the question of substantial compliance with the ninety percent class attendance requirement is correct.

The first respect in which it was submitted that the Tribunal had fallen into error by not taking into account the “qualitative” aspect of the matter was as follows: it was claimed that for sixty of the hours during which Ms Baidakova was supposed to have been attending Business Management classes at Alpha Beta College, she had instead been attending classes in three separate English language courses conducted by the Insearch Language Centre of the University of Technology, Sydney, each of which courses she had successfully completed.  It was further claimed that the Tribunal should have ignored that particular sixty hours’ worth of failure to attend classes at Alpha Beta College when deciding whether Ms Baidakova had complied substantially with the ninety percent class attendance requirement, because those sixty hours not spent in classes at Alpha Beta College had nevertheless been devoted successfully to study, which was, after all, the purpose of Ms Baidakova’s presence in Australia.  The fact that those sixty hours not spent in classes at Alpha Beta College had been devoted successfully to study showed Ms Baidakova’s bona fides as to them, it was submitted.

It is certainly the case that the Tribunal did not say in its statement of findings and reasons that it had ignored, in determining the issue of substantial compliance with the ninety percent class attendance requirement, the sixty hours to which reference has just been made.  In fact, the Tribunal’s only (oblique) reference in its statement of findings and reasons to the sixty hours spent in the three University of Technology courses occurred when it stated, as it was discussing the time between the beginning of Ms Baidakova’s Business Management course at Alpha Beta College in 1994 and her unsuccessful visa application in 1996, that, “[i]n the meantime”, Ms Baidakova “also pursued various other short courses”.

However, the reason for such brief reference to the three University of Technology courses is not hard to find, namely, that it had been specifically submitted on Ms Baidakova’s behalf in a letter written by her solicitors of the day to the Tribunal and dated 2 October 1997 that the evidentiary material before the Tribunal had established that the sixty hours spent in classes at the University of Technology had not been hours during which she should have been attending classes at Alpha Beta College, but had instead been “free” hours for Ms Baidakova.

Given that submission, it was hardly surprising that the Tribunal did not consider it necessary, when deciding whether Ms Baidakova had complied substantially with the ninety percent class attendance requirement at Alpha Beta College, to decide whether to ignore the sixty hours spent in classes at the University of Technology.

No attempt was made before me on Ms Baidakova’s behalf to show that the evidentiary material before the Tribunal did not support the inference which her former solicitors had urged on the Tribunal when making their submission to it of 2 October 1997.  Instead, it was merely asserted in argument that the sixty hours spent in classes at the University of Technology had overlapped with sixty class hours at Alpha Beta College, that assertion being made simply as a prelude to the submission about the Tribunal’s having ignored the “qualitative” aspect of the matter in the particular respect presently under discussion.

In circumstances in which no attempt was made before me to present an argument, based on a ground of review set out in the Act, that the Tribunal had erred in a manner reviewable by this Court by failing to find that the sixty hours spent in classes at the University of Technology had overlapped with sixty class hours at Alpha Beta College, the factual underpinning necessary to the making of this particular submission about the Tribunal’s having ignored the “qualitative” aspect of the matter obviously disappears and the submission must accordingly be rejected.

The second respect in which it was submitted that the Tribunal had fallen into error by not taking into account the “qualitative” aspect of the matter related to certain medical problems undoubtedly suffered by Ms Baidakova while in Australia.

The issue of those medical problems was dealt with by the Tribunal in its statement of findings and reasons as follows: first, it drew attention to the fact that, while in Australia, Ms Baidakova had undergone “extensive medical treatment” “over an extended period of time”; then, secondly, it said,

“The Applicant also attributed her poor attendance [at Alpha Beta College] in part to her medical problems. However the main bulk of the medical treatments which required her repeated visits to a clinic had commenced only in May 1996, one month before the course in question was supposed to have ended. There were other medical procedures which the Applicant had undergone in September 1995 and February 1996 but these did not appear to warrant any prolonged absence from her studies.”

It is apparent to me from the above passage that the Tribunal well understood that it was obliged to undertake a “qualitative” inquiry regarding Ms Baidakova’s failures to attend classes at Alpha Beta College and that it did not count against Ms Baidakova, when deciding whether she had complied substantially with the ninety percent class attendance requirement, such absences from her studies as it considered had been warranted by her medical problems.

However, the difficulty before the Tribunal from Ms Baidakova’s point of view was that there was such a yawning gulf between the ninety percent level of class attendance required of her and the thirty-five percent level of class attendance which she had actually achieved, that, even not counting against her such absences from her studies as the Tribunal considered had been warranted by her medical problems, the Tribunal still did not consider that Ms Baidakova could be said to have complied substantially with the ninety percent class attendance requirement.

In effect, counsel for Ms Baidakova sought to overcome that difficulty before me by attacking the Tribunal’s findings of fact quoted above regarding Ms Baidakova’s medical problems.  He did so by taking me to certain parts of Ms Baidakova’s sworn testimony before the Tribunal on 17 September 1997, for the purpose, as I understood it, of inviting me to conclude, contrary to the Tribunal’s factual conclusions, that Ms Baidakova’s medical problems had warranted prolonged absences from her studies and that, when those prolonged absences were taken into account, the proper conclusion was that she had complied substantially with the ninety percent class attendance requirement.

Leaving aside the very real question in my mind whether that sworn testimony of Ms Baidakova’s as to her medical problems to which I was taken was contradicted in important respects by reports from various of her treating doctors, which reports were supplied to the Tribunal on her behalf, I must decline the invitation given to me. Acceptance of it would require that I travel beyond the scope of the review which this Court is authorised to undertake under the Act and that I substitute my own view on the facts of the matter for that of the Tribunal.

I add that, even if Ms Baidakova had relied before me on the “no evidence or other material” ground under the Act (see par 476(1)(g), which must be read together with subs 476(4)), something which she did not ultimately do, she would still have failed on this aspect of the case, there having been evidentiary material before the Tribunal which justified the findings of fact which I have quoted above regarding Ms Baidakova’s medical problems.

In all the circumstances, I dismiss Ms Baidakova’s application with costs.

I certify that this and the preceding 9  pages
are a true copy of the reasons for judgment
of the Honourable Justice Katz.

Associate:

Date:   12 November 1998

Counsel for the applicant:  Mr N Poynder  
Solicitors for the applicant:  Corby Levingston
Counsel for the respondent:  Mr M J Leeming
Solicitor for the respondent:  Australian Government Solicitor
Date of hearing:  30 October 1998
Date of judgment:  12 November 1998