Chen v Minister for Immigration & Anor

[2011] FMCA 177

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 177

MIGRATION – Judicial review – failure to substantially comply with condition of last held visa – construction of condition 8202 – error in reasoning not material to decision – no basis to exercise decision to remit.

Migration Act 1958 (Cth), s.65
Migration Regulations 1994 (Cth)

Natalia Baidakova v Minister for Immigration and Multicultural Affairs  [1998] FCA 1436
BRGAO of 2008 v Minister for Immigration and Citizenship & Anor [2008] FMCA 1574
Buck v Bavone (1976) 135 CLR 110
Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 156 FCR 199; [2006] FCAFC 167
Kim v Witton & Anor (1995) 59 FCR 258
Minister for Immigration v Eshetu [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Modi (2001) 116 FCR 496
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609
Wang v Minister for Immigration and Citizenship [2007] FCA 1188
Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 261

Applicant: YI-KAI CHEN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 432 of 2009

Judgment of: Burnett FM

Hearing date: 9 February 2010

Date of Last Submission: 9 February 2010

Delivered at: Brisbane

Delivered on: 8 April 2011

REPRESENTATION

Counsel for the Applicant: Ms A. Julian-Armitage

Solicitors for the Applicant: Eric Muir Solicitors

Counsel for the first Respondent: Ms A. Wheatley

Solicitors for the first Respondent: Clayton Utz

Counsel for the second Respondent: Ms A. Wheatley

Solicitors for the second Respondent: Clayton Utz

ORDERS

1. That the application filed 1 July 2009 be dismissed.

2. That subject to any application by either party within seven (7) days of this order, direct the applicant pay the respondent’s costs of the application fixed in the sum of $5,865.00.

3. That the applicant pay the respondent’s costs in respect of orders made 9 December 2009 assessed in the sum of $2,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 432 of 2009

YI-KAI CHEN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 19 June 2007 the applicant applied to the Department of Immigration and Citizenship for a Student (Temporary) (Class TU) Visa. The delegate refused the application and notified the applicant of his decision by letter dated 29 August 2007. The application was refused because the applicant did not satisfy cl.573.235 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) as he had failed to substantially comply with Condition 8202 of the Sub Class 572 Vocational Education and Training Sector Visa, being the last substantive visa held by the applicant. 

2. On 21 September 2007 the applicant applied for review of that decision by the Migration Review Tribunal (the Tribunal).  His application was unsuccessful and the delegate’s decision was affirmed by the Tribunal by its decision made 27 May 2009 for reasons given at that time.  He now seeks judicial review of the Tribunal’s determination.

Grounds

1. In his Second Further Amended Application the relief sought was for a declaration that the Tribunal’s decision was void and of no effect; that the decision not to grant the applicant a Student (Temporary) (Class TU) 573 Visa be quashed and a writ of certiorari issued; and the issue of a writ of mandamus and prohibition in respect of the Tribunal’s decision.

2. The stated relief was sought on the basis that the Tribunal’s decision was infected with jurisdictional error.  The grounds contended for were:

   a)The Tribunal misconstrued the requirement of cl.573.235 of Schedule 2 of the Regulations;

   b)The Tribunal erred by identifying the incorrect breach of the visa holder’s 572 Visa;

   c)The Tribunal took into consideration irrelevant considerations and failed to consider relevant facts.

   The particulars provided in his grounds of application appeared to apply generally to the stated grounds of application.  They were:

   “(1)The Tribunal misinterpreted the requirement of cl.573.235 to mean that the Applicant was required to substantially comply with each and every condition of his visa as opposed to the cl. 573.235 requirement that the visa applicant having to substantially comply with the conditions that applied to his last substantive visa.

   (2)The Tribunal erred by finding that the visa holder had not complied with condition 8202(3)(a) as opposed to 8202(2)(a) which was the ground for the Minister’s delegate refusing to grant the subclass 573 visa.

   (3)The Tribunal, as did the Minister’s delegate, in fact, made findings that the visa holder was enrolled in a registered course but erred in its interpretation of the requirements of 8202 condition of the visa holders 572 visa.

   (4)The Tribunal erred by failing to make enquiries in order to satisfy itself that 8202(2)(a) condition of the visa holder’s 572 visa had not been complied with.

   (5)The Tribunal took into account irrelevant considerations.

   (6)Upon making a finding that the visa holder had breached the 8202 condition of his visa, the Tribunal erred in failing (sic) consider and apply the requirement in Kim v Witton (1995) 59 FCR 258 despite identifying these requirements as “Relevant Law”.”

Facts

1. The applicant is a citizen of the Republic of China and has lived in Australia on various education sector visas since approximately 2000.  At the time of his application he held a Sub Class 572 Vocational Education and Training Sector Visa (the 572 visa) which had been granted on 20 January 2006 and was due to expire on 23 July 2006.  On 19 June 2006 he applied for a Student (Temporary) (Class TU) visa.

2. Significantly the 572 visa was subject to substantial compliance with Condition 8202 of Schedule 8 to the Migration Regulations.  Materially Condition 8202 states the visa holder must meet the requirements of subclause (2) which provides:

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

   (a)     the holder is enrolled in a registered course; …”

3. The 572 visa had been granted to the applicant to study a Diploma of International Business Course (the Diploma course) at Shafston International College (SIC) commencing in January 2006 and concluding June 2006.  He had commenced attending SIC on 6 March 2006 but due to severe back pain was not able to continue attending classes.  He reported that matter to staff at SIC and obtained independent medical assistance.  He did not produce any medical certificates in support of his complaints and says that staff at the college informed him to return to the SIC when his back pain was better.  He did not in fact attend any classes at the SIC from about the second week of March 2006. 

4. In the meantime the applicant enrolled in a Bachelor of Multi Media Studies (the Degree Program) at Central Queensland University (CQU) with a commencement date of 10 July 2006.  He was issued with a certificate of enrolment with CQU in the Degree Program from 28 March 2006.  He was not enrolled at CQU for a course in semester 1 of 2006. 

5. Correspondence between the Department and SIC revealed that the applicant did not enrol in any units of the Diploma course to study in semester 1 of 2006 from 6 March 2006 and his certificate of enrolment was cancelled on 3 April 2006 as the applicant had informed SIC that he had accepted an offer of enrolment from CQU. 

6. From the facts three matters are of significance:

   a)The applicant did not attend any course between 6 March and 10 July 2006 at any registered education provider;

   b)The Diploma course offered at SIC was one which satisfied the Vocational and Education Training Sector Sub-Class 572 Visa requirements and the course offered at CQU was one that satisfied the Higher Education Sector Sub-Class 573 visa requirements; and

   c)There was a slight overlap of the certificates of enrolment issued by SIC and CQU such that he held a certificate of enrolment from at least one education provider at any one time between the start and finish of semester 1, 2006. 

7. A Student (Temporary) (Class TU) Visa holder is eligible for the Sub Class 573 Higher Education Sector Visa. For a Sub Class 573 Visa it is a time of decision requirement for a Class TU Visa that “if the application was made in Australia, the applicant had complied substantially with the Conditions that apply or applied to the last of any substantive visas held by the applicant and any subsequent bridging visa.”: cl.573.235.

8. The delegate found that the applicant did not satisfy cl.573.235 because he had not substantially complied with Condition 8202 of his Sub Class 572 Vocational and Education Training Sector Visa. The version of Condition 8202 which applied at the time stated that the holder of a Sub Class 572 Visa must meet the requirements of subclause 2 of Condition 8202 which was met if the holder was enrolled in a registered course.

9. The delegate found the applicant did not satisfy the condition because at the time of application, 19 June 2006, the applicant was not enrolled in a registered course.[1]

   [1] Respondent’s bundle p.50

10. The delegate noted that by policy a student would be considered to have complied with Condition 8202 provided that more than two months elapsed between the time an applicant had ceased enrolment in one course and had commenced enrolment in another course.

11. The delegate observed that at the time of the visa application the applicant held a Sub Class 572 Vocational and Education Training Sector Visa which was subject to Condition 8202.  The visa had been granted to study the Diploma Course at SIC commencing in January 2006 and concluding in June 2006.  However the applicant did not enrol in any units in that course for semester 1.  In refusing the application the delegate was not satisfied that the applicant maintained an enrolment in a registered course for semester 1 2006.  While he noted the applicant’s application did provide evidence of enrolment by a certificate of enrolment for the Degree Program (commencing 10 July 2006) at CQU the delegate concluded that he had a period of non enrolment of over two months after ceasing studies during the standard academic year.

12. The issue in the application was whether at the time of the decision the applicant had substantially complied with Condition 8202 of his Sub Class 572 Visa.  First it must be stated that the Tribunal correctly recognised this as a time of decision requirement.[2]  The Tribunal’s decision necessarily meant that “a registered course” for Condition 8202 must be a registered course for the last substantive visa held.  In reaching its decision the Tribunal was aware that the applicant had changed enrolment from the Diploma Course at SIC to the Degree Program at CQU and that he had continuously held a certificate of enrolment by a registered education provider.  In finding against the applicant the Tribunal found the applicant had not complied with Condition 8202 because he was not enrolled in a “registered course” at the time of application as required by his 572 visa.  Further on the facts he could not enjoy the benefit of the policy permitting up to two months non enrolment between courses.

    [2] Tribunal decision at [25].

13. It was against this decision the applicant seeks review.

Particular 1 – Construction of Clause 573.235

1. The time of decision criteria, Clause 572.235 provides:

   “If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.”

2. The applicant contends that this clause should be construed to mean that there is a global assessment of substantive compliance with the applicant’s last substantive visa and any subsequent bridging visa: it does not require a consideration of each condition discretely. The applicant contended the assessment did not require a consideration of the substantive compliance with each condition with the effect being that each condition is considered discretely and that it is only upon the cumulative satisfaction of each condition that the applicant can satisfy Condition 8202.  He contended the Tribunal was in error in adopting a construction that afforded as a preface to the words “the conditions” the words “each and every” in the context of the visa conditions.

3. The language of the clause is not complicated.  Its expression is plain and its meaning is readily discernable from a plain reading of the words in their ordinary context.  That is, relevantly for this applicant, that the clause requires that the applicant has complied substantially with the conditions that apply or applied to the last substantive visa and to any subsequent bridging visa he held.  The clause directs attention to the issue of compliance with each condition of that visa and the subsequent bridging visas.  An assessment has to be made as to whether or not there has been substantial compliance with each such condition.  On that basis the clause gives rise to a cumulative assessment such that if there is a failure in respect of any one condition the application fails.  No global assessment is made. 

4. Given the use of the plural word “conditions” it is difficult to see how any other construction is open than one that requires consideration of each and every condition discretely.

5. In its decision the Tribunal noted:

   “The issue in the present case is whether at the time of this decision, the applicant had substantially complied with Condition 8202 of its sub clause 572 visa”.[3]

   [3] Tribunal decision page 5 para 25.

6. From that point the Tribunal proceeded to determine the issue of whether or not there had been substantial compliance by the applicant with his certificate of enrolment at SIC.  In doing so it was discretely considering compliance with the Condition 8202 requirement at the time of decision that the applicant be enrolled in a registered course.

7. I think the Tribunal’s approach was consistent with the proper construction of the clause and accordingly its approach to a consideration of individual incidents of non-compliance with conditions of the last held substantive visa was correct and did not demonstrate error. The Tribunal’s approach was consistent with authority on this matter: Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 156 FCR 199 [5] – [15]; Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 261 at [12].

8. The Tribunal was correct in its approach and concluded there had not been substantial compliance with Condition 8202(2)(a).  That matter was open to the Tribunal on the material.  No error is demonstrated on this ground of review.

Particular 2 – Tribunal’s finding on Condition 8202(3)(a) in error

1. In its second particular the applicant contends that the Tribunal erred by finding that the visa holder had not complied with Condition 8202(3)(a) as opposed to 8202(2)(a) which was the ground stated for the Minister’s delegate refusing to grant the 573 visa.

2. Nowhere in the Tribunal’s decision does it specifically refer to Condition 8202(3)(a).  However the matter was considered in the totality of matters applicable to Condition 8202 where the Tribunal gave consideration to each of the discrete factors necessary to be satisfied by that condition.  Nothing in the Tribunal’s decision demonstrates that the Tribunal did not ask itself the right questions or that it improperly considered the material before it.  In my view no jurisdictional error has been identified by this ground of review.

Particular 3 - Tribunal erred in its application of Condition 8202(2)(a)

1. The relevant requirement of Condition 8202 is to be “enrolled in a registered course”.  In that regard it is important to keep in mind the requirement of the particular visa to which that condition relates.  That is that the applicant’s last held substantive visa here being a Sub-Class 572 visa which is a student visa relating to the Vocational Education and Training Sector.  The types of course for which that sub class visa is available included Diploma Courses.[4]  The applicant had held an enrolment in a registered course for the purposes of his Sub Class 572 Visa from the SIC he having been enrolled in the Diploma Course.  However his enrolment for that course was cancelled on 3 April 2006 and he was not enrolled in it at the time of decision because he did not enrol in any units to study in semester 1 2006 from 6 March 2006.  At the time of cancellation he had informed the Registrar of SIC that he had accepted an offer from CQU.

   [4] Schedule 1 to Gazettal Notice in GN25 of 29 June 2005; “Specification of Types of Courses for the purposes of Regulation 1.40A of the Migration Regulations 1994.

2. The applicant had been accepted at CQU to undertake the Degree Program which by specification in the Gazettal Notice was a registered course for the purposes of the Sub Class 573 Higher Education Sector Visa (573 visa).  He applied for and was given a confirmation of enrolment to start the Degree Program July 2006 with his certificate of enrolment dated 28 March 2006.  Although he was enrolled for this course at the time of the decision he did not hold a 573 visa. 

3. Accordingly while there was some overlap of the certificates of enrolment at both SIC and CQU meaning that there was continuous enrolment at a recognised education provider in respect of a registered course over the relevant period the applicant held a visa apposite to only one of the courses; but not the course relevant to either his last substantive visa or related bridging visa.  The applicant submitted a global approach ought apply to the term “a registered course” such that it was immaterial which certificate of enrolment he held.  He submitted that the only consideration was that he was “enrolled in a registered course”.  Accordingly the applicant contended the Tribunal had failed to give adequate consideration to the issue of the certificate of enrolment and whether the applicant had a certificate of enrolment. 

4. For the respondent it was submitted that it is not sufficient for the purposes of satisfying Condition 8202(2)(a) to be enrolled in “any” registered course.  The enrolment must relate to and be an enrolment capable of satisfying the criteria and conditions of the last substantive visa held.  Accordingly when considering a Sub Class 572 Visa as the last substantive visa held, the enrolment must continue to be an enrolment that would satisfy Sub Class 572.  The Diploma Course satisfied this requirement.  The Degree Program did not.  Accordingly, where the applicant applied for a Sub Class 573 visa the Regulations require that at the time of decision the applicant had to have “complied substantially with the conditions that apply or apply to the last of any substantive visas held by the applicant”.  In this case the applicant’s last substantive visa was the Sub Class 572 visa.  It follows that the certificate of enrolment issued at CQU was not relevant to substantial compliance with the conditions attached to the Sub Class 572 visa being the last substantive visa held by the applicant. 

5. As the respondent submitted, the distinction calling for consideration of the last substantive visa only is emphasised by the other requirements that the applicant had to meet in order to be granted a Sub Class 572 visa.  These included for example the relevant requirements of Schedule 5A of Criteria 572.223 of the Regulations.  The requirements of Schedule 5A differ depending on the assessment level of the applicant.  The assessment levels also differ depending on the type of visa applied for.  In this case for a Sub Class 572 visa, the applicant (being assessed on the basis of coming from Taiwan), as assessment level 2.  However for a Sub Class 573 visa, the applicant is assessed at assessment level 1.

1. It was further submitted that a further point of distinction could be found in the criteria themselves.  Criteria 572.231 requires the following:

   “572.231  The applicant is enrolled in, or is subject of a current offer of enrolment in, a course of study that is:

   (a)     a principal course;

   (b)     of a type that was specified for Sub Class 572 visas by the Minister in a gazettal notice:

   (i)     made under Regulation 1.40A;

   (ii)     in force at the time the application was made.”

2. Criterion 573.231 is in the same terms but with the reference to Sub Class 573 rather than Sub Class 572.

3. The respondents submitted that accordingly the CQU enrolment could never have satisfied the requirements of Condition 8202 for maintaining the enrolment or even substantially complying with the enrolment requirements as the CQU enrolment could not satisfy the requirements of being a registered course for the Sub Class 572 visa it being the last substantive visa held.  I accept that submission as correct.

4. The Tribunal concluded that there had been substantial non-compliance with Condition 8202 because the applicant had not complied with his last substantial visa because he had not maintained enrolment for a registered course in semester 1 2006. It does appear from the Tribunal’s decision that it did not fully appreciate the fact that CQU enrolment could never satisfy the Condition 8202 conditions nor amount to substantial compliance for clause 573.235. However the Tribunal’s decision was correct and its error in reasoning has not led to a wrong conclusion.

Particular 4 – Tribunal failed to make enquiries

1. The applicant contends the Tribunal was under a positive duty to enquire to satisfy itself that Condition 8202(2)(a) had not been complied with.  Such contention is contrary to authority.  In Minister for Immigration and Citizenship v SZIAI[5] the majority, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ stated at [19]:

   “…In the exercise of its review function, the Tribunal may obtain such information as it considers relevant. In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act.”

   [5] [2009] HCA 39

2. The Tribunal was satisfied that Condition 8202(2)(a) had not been complied with and it did not need to make further enquires to be so satisfied. As was submitted by the respondents, the context of s.65 of the Migration Act1958 (Cth) concerning a decision to refuse to grant a visa requires a state of “satisfaction” in the mind of the decision maker. Concerning the state of satisfaction it has been held:

   “… Although a decision as to “satisfaction” is not immune from review, as the Full Court said in Capalapillai v Minister (1998) 86 FCR 547;

   “It is not to be overlooked that the criterion reflects a decision to make the satisfaction of an administrative decision maker, and not the satisfaction of a judge or a court, the determinant of eligibility for the grant of a protection visa”.”

3. And further at [15]:

   “In Minister for Immigration v Eshetu [1999] HCA 21 at [145] Gummow J, after referring to the judgment of Gibbs J in Buck v Bavone (1996) 135 CLR 110 at [118] – [119] said that the power of review would be enlivened:

   “where the satisfaction of the decision maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds”.”[6]

   [6] BRGAO of 2008 v Minister for Immigration & Anor [2008] FMCA1574 at [10] and [15] upheld in BRGAO of 2008 v Minister for Immigration [2009] FCA126.

4. Accordingly where there is some probative material available to support the decision makers decision, then such a decision is not amenable to review.  In this case the Tribunal had before it material from both SIC and CQU as to the applicant’s enrolment status together with advice from SIC that the applicant had not enrolled for any units in semester 1 of 2006 and that he did not attend SIC from 6 March 2006.

5. Additionally the applicant contended that the Tribunal failed to turn its mind to the issue of whether there were exceptional circumstances beyond his control explaining his failure to comply with Condition 8202.  It was contended a simple enquiry would have revealed the applicant’s medical condition which led to his initial inability to proceed with the course at SIC. 

6. The respondent submitted two matters in answer to this submission:

   a)The issue of exceptional circumstances beyond the applicant’s control is not a relevant consideration.  Such a matter is only relevant to an application concerning cancellation of a visa which was not the case here: Regulation 2.43 Migration Regulations.  I consider the Tribunal correctly did not consider that matter in this case.

   b)If the applicant’s submission was misstated and he intended to address substantial compliance then the matter of substantial compliance with the condition was ultimately a matter of fact open to the Tribunal.  The respondent noted that the Tribunal correctly considered the relevant policy permitting the two month grace period between completing a course and beginning another course but decided on its facts that this was not a case of substantial compliance.  That matter was open to the Tribunal.  I agree with the respondent’s submission on this point.

7. In my view this case did not give rise to any positive obligation on the Tribunal to make enquiries and accordingly no jurisdictional error is identified in this ground of review.

Particular 5 – The Tribunal took into account irrelevant facts and failed to consider relevant factors

1. The applicant did not identify in particulars to its application or in argument the specific facts which it contended were irrelevant and taken into account or which were relevant but overlooked.

2. From oral submissions the applicant’s principal complaint was that the Tribunal misled itself by addressing irrelevant considerations, in particular relating to the applicant’s health and further failed to consider relevant considerations in particular the exculpatory facts relevant to substantial compliance including matters alleged to give rise to exceptional circumstances, the applicant’s holding of the two certificates of enrolment, and, the Kim v Witton& Anor[7] factors generally.

   [7] (1995) 59 FCR 258

3. It is clear from the Tribunal’s decision that it appears to have given detailed consideration to the matter of the applicant’s health.  However this issue appears to have been raised by the applicant by way of explanation for non-attendance at classes and in addressing the matter of substantial compliance.  It was clearly a factor relevant to the applicant’s submission that he ought to receive favourable discretionary consideration on the issue of substantial compliance.   In fact for reasons relevant to the condition itself the matter was irrelevant.  However that equally addresses the compliant that it was not afforded sufficient weight in the Kim v Witton (supra) context.

4. For reasons addressed above the Tribunal was correct in its approach to considering the issue of non-compliance with Condition 8202.  However it did allow itself to be misled in consideration of the applicant’s health which was forcibly advanced on the applicant’s behalf.  However the decision reached rejected the applicant’s contentions on this point so the consideration of this issue had no bearing upon the Tribunal’s decision.

5. It follows that notwithstanding a consideration of an irrelevant matter I do not accept that it had any bearing on the Tribunal’s decision.  Furthermore it is apparent from the Tribunal’s decision that it did indeed address matters contended on behalf of the applicant relevant to the issue of substantial compliance including factors relevant to the existence of certificates of enrolments at each of SIC and CQU and the Kim v Witton& Anor (supra) factors which were relevant, albeit of limited relevance, to the application.

6. In my view no jurisdictional error is identified in this ground of review.

Particular 6 – Failure to consider and apply requirements in Kim v Witton

1. The applicant contended that whilst the Tribunal correctly identified the approach expressed by Sackville J in Kim v Witton & Anor (supra) and the Court in NataliaBaidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 it failed to apply the principles to the case before it. He contended that had the Tribunal applied these matters to the application it would have been apparent the applicant ought to have been granted a visa because he (the applicant) was unaware that his certificate of enrolment at SIC had been cancelled.

2. Early in its decision the Tribunal noted that matters to be taken into account in deciding whether the applicant complied substantially with the visa condition were referred to by Sackville J in Kim v Witton & Anor (supra) at 217.  It noted these matters included:

   ·The nature of the breach of the 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;

   ·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.

3. The Tribunal proceeded to note that no rigid test was to be applied in every case and that such matters are not to be elevated to the status of relevant considerations.  That approach is entirely consistent with authority.  Concerning this matter in Minister for Immigration and Multicultural Affairs v Modi (2001) 116 FCR 496 at [19] the Court stated:

   “In our view, the correct approach to the issues in this case is that taken by Grey J in Shrestha at [17] where His Honour pointed out that the considerations listed by Sackville J in Kim v Witton were not to be elevated to the status of relevant considerations in every case.  His Honour observed that the circumstances of the case will determine what the statutory of the decision maker involves in those circumstances and that there is no rigid test.”

4. Further the Tribunal noted that there are some conditions to which the concept of substantial compliance has no logical application but otherwise correctly considered as a matter of fact whether the applicant had complied substantially with Condition 8202(2)(a), that is, whether or not he was “enrolled in a registered course” and found that he was not.  However the Tribunal did not rest there.  It was aware of the discretion permitted by the policy and notwithstanding that fact decided as it did.  That finding was well open to the Tribunal.  In my view the Tribunal did not ask itself the wrong question or fail to consider the appropriate considerations when considering whether the applicant had complied substantially with Condition 8202(2)(a) and no jurisdictional error is identified by this ground of review.

Relief

1. Given the Tribunal’s error discussed in ground 3 above consideration must be given to the appropriate relief in the application. 

2. The respondent contends that irrespective of the Tribunal’s reasoning the outcome must be the same.  Accordingly the Tribunal’s decision cannot vary.  In that event the respondent submits there is no utility in remitting the application to the Tribunal with a direction to decide the matter in accordance with the law: SZBYR v Minister for Immigration and Citizenship [2007] 234 ALR 609 at [27] – [29] and [62] – [65]; Wang v Minister for Immigration and Citizenship [2007] FCA 1188 at [26] – [27].

3. I accept this submission and agree that in this case there is no utility in remitting the application.  The only point in this application which afforded any discretion was the issue concerning “substantial” compliance.  That gave rise to a question of fact.  The Tribunal’s approach to the certificate of enrolment of CQU had no bearing on this matter as the policy brings into consideration whether or not two or months have elapsed before beginning another course.  The CQU certificate of enrolment did not bear upon the matter.  It was solely a question of fact in circumstances where: the facts were uncontested; the applicant never commenced any course at SIC in semester 1 2006; and, only commenced his course at CQU on 10 July 2006, a period well in excess of two months after his first enrolment was cancelled.  The matter was open to the Tribunal and its approach to the effect of a certificate of enrolment could have no bearing upon those facts.  I consider there is no utility in remitting the application.

Conclusion

1. The applicant’s application for a Student (Temporary) visa was refused by the delegate and that refusal was affirmed by the Tribunal because the applicant had not substantially complied with the requirements of his last held substantive visa. He contended the Tribunal erred in affirming the delegate’s decision because it misconstrued the relevant condition, condition 8202, or was influenced in reaching its conclusions by irrelevant considerations and a failure to consider relevant matters. Although the Tribunal may have erred in one respect I consider the Tribunal has correctly interpreted and applied the condition. Insofar as it was in error there is no utility in remitting the point in error to the Tribunal for reconsideration as irrespective of any reconsideration the matter would not bear upon the ultimate outcome of the application. In summary no reviewable error has been demonstrated in the findings of the Tribunal. The application is dismissed.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date:  6 April 2011