CHOWDHURY v Minister for Immigration

[2005] FMCA 1243

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHOWDHURY v MINISTER FOR IMMIGRATION [2005] FMCA 1243

MIGRATION – Application to review decision of Migration Review Tribunal – application for student visa – whether substantial compliance condition 8202 – whether Tribunal had to consider if applicant complied substantially with conditions as a whole or with each condition – whether Tribunal under obligation to refer matters to education provider for reassessment of whether academic record satisfactory. 

Migration Act 1958, ss.116(1)(b), 116(3), 357A, 359A
Migration Regulations, subclauses 414.722, 572.212 of Schedule 2 to the Regulations

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 204
Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436
Kim v Witton (1995) 59 FCR 258
Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 261
Gurung vMinister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 772
Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Applicant S v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 25
Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCAFC 333
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277
Minister for Immigration and Ethnic Affairs v Pochi (1979) 44 FLR 41
R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

Applicant: CHOWDHURY

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG3755 of 2004

Judgment of: Barnes FM

Hearing date: 9 August 2005

Delivered at: Sydney

Delivered on: 6 September 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Mr R. Turner

Counsel for the Respondent: Mr G. Kennett

Solicitors for the Respondent: Phillips Fox

ORDERS

1. That the Migration Review Tribunal be joined as a second respondent to the proceedings.

2. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3755 of 2004

CHOWDHURY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) made on 1 December 2004 affirming a decision of a delegate of the respondent that the visa applicant was not entitled to the grant of a Student (Temporary) (Class TU) visa.  Consistent with the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 204 the Tribunal should be joined as a second respondent to these proceedings.

2. The applicant held a student visa granted on 29 April 2002 to undertake a Diploma of Technology at the Insearch University of Technology, Sydney (Insearch UTS).  He was enrolled in that course from 24 June 2002 to 14 February 2003.  The applicant’s academic record for the course indicates that in the first semester (Semester 2 of 2002) the applicant undertook five subjects.  He achieved one credit, one pass and failed three subjects.  In the next semester (Semester 3 of 2002) the applicant undertook four subjects.  Two of those were subjects repeated from semester 2.  He obtained a pass conceded in one and in the other (in which he had previously had a mark of 0%) he achieved a mark of 6% and fail.  He passed one new subject and failed the other. 

3. The applicant wrote to the Department in an undated letter stating that out of nine subjects attempted in the Insearch UTS Diploma course he had passed only four, that he had to try some subjects for the second time to pass, that the course contents were ‘way too hard’ for him and that he could not cope with the pace of the course curriculum.  He sought to change institutions in order to finish his Diploma of Information Technology elsewhere.  A letter dated 17 March 2003 from the Client Services Co-ordinator Insearch UTS stated that the applicant requested to withdraw from the programme and planned to study at Group Colleges Australia Pty Limited.  This letter stated that he was enrolled until 14 February 2003 and that during this time his overall attendance was 79%.  The applicant transferred to Group Colleges Australia (of which Central College is a member) and enrolled in a Diploma of Information Technology course which started on 28 April 2003 and was due to finish on 8 April 2005. 

4. The applicant’s student visa expired on 14 July 2003.  On that date he lodged an application with the Department for a further Student (Temporary) (Class TU) visa.  On 24 September 2003 the Department wrote to Insearch UTS requesting formal written confirmation of whether the applicant had achieved results that were determined to be at least satisfactory and whether he had provided UTS with acceptable explanations for his attendance falling below 80 per cent. On 3 October 2003 Insearch UTS sent a fax to the Department advising that the applicant had studied two semesters of the Diploma course during which time his overall attendance including medical certificates was 78.50 per cent and his weighted average mark 38.  The fax stated that “articulation to second year of Bachelor of IT” at University of Technology Sydney required a WAM (weighted average mark) of 65 and no more than two failed subjects, although other universities may accept a WAM of 50 as a pass.  The letter noted that the applicant had applied to withdraw and considering his progress Insearch UTS had released him from the course.  It enclosed his academic and attendance record.  On 11 February 2004 the Department refused the applicant’s application for a further student visa.

5. The applicant sought review by the Tribunal.  The Tribunal wrote to Insearch UTS requesting information as to the applicant’s enrolment dates, a break-up of his attendance for each semester and asking for information as to whether the applicant’s academic performance was satisfactory for each semester he studied at Insearch UTS.  In response Insearch UTS provided a further copy of the applicant’s academic record and stated that for Semester 2 of 2002 his weighted average mark was 40 and his academic performance was ‘not satisfactory’ and that for Semester 3 of 2002 his weighted average mark was 37 and his performance was ‘not satisfactory’.  In addition the response advised that while the applicant had completed five weeks of Academic English from March to April 2003 with attendance of 82 per cent and a C pass for Academic English level 8, his overall attendance in Semester 2 had been 76.85 per cent including medical certificates and 56.48 per cent without medical certificates and in Semester 3 80.43 per cent including medical certificates and 63.04 per cent without medical certificates (which it was stated constituted an overall attendance of 59.50 per cent actual attendance).

6. On 13 August 2004 the Tribunal wrote to the applicant inviting him to comment on the information from Insearch UTS as to his attendance in each semester, the advice that his academic performance for each semester was unsatisfactory and that this suggested he had breached condition 8202 of his visa, and also on the information that he had changed education providers within the first 12 months of his course indicating he may have been in breach of condition 8206 of his last held visa. 

7. By letter of 21 September 2004 the applicant commented that he was upset by an ‘unusual’ undescribed incident relating to the University Handbook during his two semesters with Insearch, that he had been late for classes because he lived far away from the city, that he had felt sick a few days and missed some classes and that because he was not an early riser and all the classes started at 9.00am he had missed some classes.  In relation to the advice that his academic performance was unsatisfactory, he stated:

   In two semesters I have studied 6 subjects and passed 4 of them.  I have not attended any class of SAT 101 (Business Statistics) and failed twice because I thought I might get credit exemptions for that subject as I passed it successfully during my Bachelor Degree at my country which I discontinued.  But I failed to get the exemption only because I was only a day late for apply for exemption at Insearch.  So, on my point of view I have actually studied 5 subjects and passed 4 of them which I do not think is unsatisfactory.

8. He also advised that he did not know that he could not change education provider within 12 months and that Insearch had allowed him to change after 11 months study.

9. The Tribunal held a hearing on 3 November 2004 which the applicant attended.  The Tribunal reasons for decision are the only record before the Court of what occurred in that hearing.  Under the heading ‘Relevant Evidence’ the information above is set out.  The reasons refer to the hearing and state “The visa applicant’s evidence can be summarised as follows.”  Immediately thereafter there are four paragraphs before the heading ‘Findings and Reasons’.  In light of one of the grounds relied upon by the applicant in the proceedings before this Court, it is relevant to set out in full these paragraphs which are as follows:

   33.The Tribunal held a hearing on 3 November 2004.

   34.The visa applicant’s evidence can be summarised as follows:

   35.The visa applicant’s attendance for Semester 2 was 77%.  The visa applicant’s attendance for Semester 3 was 81%.  Therefore, there was only 1 semester in which the visa applicant’s attendance was not 80%.

   36.The visa applicant passed 50% of his subjects when he was at Insearch.  The university regulations state that a student only has to pass 50% of their subjects in order to be classified as passing.  The Tribunal advised the visa applicant that it is unable to go behind the University’s statement that it regarded the visa applicant’s results as unsatisfactory in both Semester 2 and Semester 3.

   37.The University Handbook stated that a student first had to do an English course for 10 weeks which would put the student at the equivalent of Level 8.  The visa applicant completed the 10 week English course in 5 weeks.  The University Handbook (produced to the Tribunal at the hearing) indicates that if a student achieves Level 8 he or she does not have to do Level 9.  The Handbook indicates that the student can then commence a Diploma which takes 3 semesters, rather than a Diploma which takes 4 semesters.  However, contrary to the advice in the Handbook, the visa applicant was informed by the University that he had to do 4 semesters, not 3 semesters.  The visa applicant was very unhappy with this situation as he had to pay more fees and had to attend for a semester more than he thought he would have to.  These factors led to the visa applicant doing poorly and not attending as many classes as he needed to.  The visa applicant also lived in Blacktown at that time and found it difficult to get to classes by 9.00am in the morning.  The visa applicant was often only 15 minutes late for classes, but he had been marked absent by the University by the time he got to the class.  The visa applicant attended at least 90% of classes at Insearch.

   38.The visa applicant was not informed by Insearch that he could not change education providers without permission from the Department.  Insearch provided the visa applicant with a release form and allowed him to change education providers.

10. In its description of legislation and policy the Tribunal stated:

    The central issue for this review is whether the visa applicant complied substantially with condition 8202 and 8206 of the visa he held or last held at the time the visa application was made and at the time of decision.

11. In the findings and reasons part of its decision the Tribunal stated that clause 572.212 of Schedule 2 to the Migration Regulations required it “to find whether the visa applicant complied substantially with the conditions to which the student visa held, or last held, at the time of application was subject”.  The Tribunal dealt first with condition 8202.  It accepted the applicant’s explanation that he attended at least 90% of his contact hours in Semester 2 of 2002 as it was only because he was often more than 15 minutes late that he was marked as absent for the entire class.  Hence the Tribunal was satisfied he attended at least 80% of his contact hours in Semester 2 of 2002 and the evidence established that he attended at least 80% of his contact hours in Semester 3 of 2002.  The Tribunal accepted that the visa applicant had not breached this aspect of condition 8202.

12. It then had regard to the visa applicant’s suggestion that the University regulations indicated that the number of subjects that he had passed meant that he should have been deemed to have passed the course, thus meaning that he achieved at least satisfactory results.  The Tribunal noted that this did not accord with the information provided by the education provider itself which stated that the visa applicant’s academic result was unsatisfactory for semesters 2 and 3.  The Tribunal noted that condition 8202 states that the academic provider must certify the results as at least satisfactory.  Insearch UTS had stated in its letter that the applicant’s academic result was unsatisfactory for each semester.  In these circumstances the Tribunal found that the visa applicant breached condition 8202.

13. Having found that the visa applicant breached condition 8202 the Tribunal stated that it must then consider whether, notwithstanding the breach, the visa applicant had substantially complied with condition 8202.  It discussed factors which had been said by Katz J in Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436 to be relevant. It found that there was a significant breach that defeated the purpose for which the visa was granted, although the applicant did not deliberately flout the condition. It was satisfied that the applicant appreciated that he was in breach of condition 8202 as he was aware he had to make satisfactory academic progress. It had regard to the visa applicant’s claim that he was upset after being advised by the University that, contrary to the advice contained in its Handbook, he had to complete four semesters instead of three and that as a result he was often late and his results were poor, that he lived a long way away and had difficulty adjusting to the weather. However the Tribunal was unable to be satisfied that his concerns regarding the erroneous advice in the Handbook and other difficulties were of such magnitude that he was unable to achieve at least satisfactory academic results. It found that he did not substantially comply with condition 8202 during the period of his last visa and hence that he did not substantially comply with the conditions of his last held visa and did not satisfy clause 572.212. The Tribunal stated that given these findings it was unnecessary to consider whether the applicant complied with condition 8206. It affirmed the decision under review.

14. The applicant sought review of the Tribunal decision by application filed in this Court on 23 December 2004.  He relies on an amended application filed on 29 July 2005. 

The relevant law

1. It is not in dispute that the version of condition 8202 applicable to the applicant’s last held visa was, relevantly, as follows:

   (1)    The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3)

   …

   (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 schedules:

   (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.

2. Subclause 572.212 of Schedule 2 to the Migration Regulations relevantly provided:

   If the application is made in Australia, 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. 

Whether the Tribunal identified the wrong issue and asked itself the wrong question

1. The first ground relied on in the amended application is that the Tribunal identified the wrong issue and asked itself the wrong question in that it failed to look at the totality of conditions attached to the applicant’s visa and ask itself whether the applicant had complied substantially with those conditions taken as a whole. 

2. It was contended for the applicant that, giving the words in subclause 572.212 of Schedule 2 to the Regulations their ordinary meaning, the proper test was for the Tribunal to consider whether the applicant had complied substantially with the conditions to which his visa was subject as a whole not, as determined by the Tribunal, whether the applicant complied substantially with each of the visa conditions taken individually.

3. It is not in dispute that the last visa held by the applicant was subject to a number of conditions.  While the solicitor for the applicant listed the conditions which he understood would be imposed on a visa of the class granted to the applicant, the Tribunal reasons for decision indicate that the visa was subject to different conditions, being 8517 (school age dependants) 8532 (<18 approve welfare), 8202 (meet course requirements), 8501 (health cover of a minor), 8533 (inform provider of address), 8105 (work limitation) and 8206 (no change to education provider).  However nothing is said to turn on precisely which conditions applied.  The Tribunal reasons for decision do record that, while the delegate considered the visa applicant had not complied substantially with conditions 8202 and 8206, there was no evidence that the applicant had not complied substantially with the other conditions to which his last held visa was subject. 

4. The applicant contended that the Tribunal should have considered all of the conditions to which the visa was subject, not merely whether he had complied substantially with condition 8202 and 8206. It was contended that the Tribunal erred in stating that the ‘central issue’ was whether the visa applicant complied substantially with conditions 8202 and 8206 as this was not what was in issue under subclause 572.212. It was suggested that s.116(1)(b) of the Migration Act 1958 provides, in effect, that the Minister may cancel a visa if he or she is satisfied that “its holder has not complied with a condition of the visa” (emphasis added) is materially different from subclause 572.212 as it referred to ‘a condition’ rather than ‘the conditions’. 

5. Counsel for the respondent agreed that the issue raised by this ground was whether the relevant criterion required ‘substantial compliance’ with each and every condition of the earlier visa or in some overall sense by reference to all of the applicable conditions.  It was conceded that if the latter construction were correct it would follow that the Tribunal had erred by treating its conclusions in relation to condition 8202 as sufficient to dispose of the review.  However it was contended that the criterion in issue in the present case (in subclause 572.212 of Schedule 2 to the Migration Regulations) was relevantly identical to the criterion considered in a number of earlier cases such as Baidakova v Minister for Immigration & Multicultural Affairs, Kim v Witton (1995) 59 FCR 258 and Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 261 which proceeded on the basis that failure to comply substantially with one condition was sufficient to dictate the refusal of the visa application and that such approach was correct and should be followed.

1. It was submitted by the applicant that the first of these authorities, Kim v Witton, dealt primarily with the question of whether the applicant had performed ‘work’ and that the argument now put for the applicant was not raised in that case.  Similarly it was contended that Baidakova dealt only with whether there had been substantial compliance with part of one particular condition (whether the applicant had attended a course for 80 per cent of the contact hours), that such issue that was not relevant in this case and that the interpretation of subclause 572.212 or its equivalent was not raised. 

2. It is the case that there is nothing on the face of the judgments in Kim v Witton and Baidakova to show that the argument now advanced by the applicant was put.  However Sackville J noted at the commencement of his judgment in Kim v Witton (at 259) that the applicant’s visa was subject to a number of conditions, including ‘no work’ and ‘no residence’. While the argument before the Court in that case appears to have been confined to whether the Tribunal had correctly construed the phrases ‘work’ and ‘complied substantially’ in the Migration Regulations and whether there was evidence to justify the Tribunal’s conclusions in this respect, his Honour stated that the issue before the Tribunal had been “whether the applicant had complied substantially with the conditions of his visa, specifically the prohibition on performing work in Australia” (at 270).  He went on to find that the Tribunal was correct in accepting that an applicant might ‘comply substantially’ (as required by the applicable regulation, which in that case was subclause 414.722 of Schedule 2 to the Migration Regulations) “with a condition imposing a prohibition, even if the condition has been breached” (at 270) as the regulations contemplate that “some degree of non-compliance with visa conditions” may be permitted.

3. Sackville J expressed the view (at 271) that in determining whether an applicant has complied substantially with a condition imposing a prohibition the Tribunal should consider the relevant circumstances of the case.  He suggested that such circumstances included factors such as 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 the applicant “deliberately flouted the condition” and if he failed to appreciate that he was in breach what if anything contributed to that failure.  The type of factors listed suggest that the relevant focus is on substantial compliance with a particular condition.  Sackville J concluded that the Tribunal (which appears to have considered only whether the applicant had substantially complied with the condition prohibiting work) had not applied an incorrect test in deciding whether the applicant had complied substantially with the conditions of his visa and that there was evidence from which it could reasonably be satisfied that the applicant had not complied substantially with the ‘no work’ condition.  In other words it is clear that the Tribunal proceeded on the basis that it was necessary to comply substantially with each condition to which a visa was subject and Sackville J did not record any difficulty with this approach. 

4. Similarly, in Baidakova Katz J dealt with an argument as to whether an applicant had complied substantially with one condition to which the previous visa was subject.  Katz J also proceeded on the basis that a failure to comply substantially with one condition would be enough to mean that the applicant had not met the relevant criterion. 

5. Each party referred to the decision of Ryan J in Weerasinghe.  In that case the Tribunal had affirmed a decision to refuse a student visa application for failure to comply substantially with condition 8202 (satisfactory academic progress) and with condition 8501 (maintenance of health insurance cover).  The applicable criterion was in the same terms as subclause 572.212.  In issue in relation to condition 8202 was whether the applicant had “achieve[d] an academic result that is certified by the education provider to be at least satisfactory”.  His Honour referred to the fact that the Tribunal had had regard to the factors in Baidakova but did not consider that Baidakova had any bearing on satisfaction of the relevant part of the condition 8202.  He stated at [10]:

   “The criterion which Ms Baidakova had to satisfy was that … an applicant … has complied substantially with the conditions to which the visa … held by the applicant is … subject. (emphasis added)  The relevant condition in Ms Baidakova’s case was that she satisfy the requirement of the course the undertaking of which had been the basis of the grant to her of a temporary entry permit.  One such requirement was that she attend at least 90% of the classes for the course for which she had enrolled.  By contrast, there is no scope for the operation of the distinction between strict compliance and substantial compliance on Condition 8202(3)(d) … Either the education provider has certified that the applicant’s academic results for the relevant period have been at least satisfactory or it has not”. 

6. Ryan J held that it was therefore not open to the Tribunal to have regard to discretionary factors or to the fact that the applicant’s attendance during the relevant period had been at least 80 per cent of the contact hours scheduled in considering this part of condition 8202.  He referred to the following observation by Tamberlin J in Gurung vMinister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 772 at [16]:

   In the absence of any certification by the University one of the cumulative requirements of condition 8202 had not been satisfied.  Accordingly, I do not consider that the reasons of the Tribunal disclose any error of law or principle based on this submission.

7. Ryan J continued in Weerasinghe at [12]:

   The same reasoning compels the result that the present application for review must also fail.  Since cl 573.12 of the Regulations requires substantial compliance with all of the conditions cumulatively to which an applicant’s last visa was subject, the conclusion just reached makes it strictly unnecessary to consider a second condition with which the applicant was required to comply.  That was condition 8501 of Sch 8 to the Regulations …

8. Nonetheless the Court went on to consider the Tribunal’s analysis of the effect of the applicant’s non-compliance with condition 8501 finding no error in the finding that the applicant had not complied substantially with condition 8501.  Ryan J stated that whether there had been substantial compliance was a question of fact for the Tribunal and that “In the absence of some demonstration that the Tribunal misdirected itself as to the meaning of an applicable expression, or committed some other error of law such as applying the PAM guideline as an inflexible rule of universal application, the Court cannot interfere with the Tribunal’s resolution of the question of fact which I have just identified”. 

9. The Court also upheld the Tribunal decision on the alternative basis of this separate and distinct finding of a failure to comply substantially with an applicable condition (at [15]). 

10. It is notable that, as in Baidakova and Kim, Tamberlin J in Gurung proceeded on the basis that what was in issue (in relation to a criterion in the same language relevantly as subclause 572.212 of Schedule 2 to the Regulations) was whether the visa applicant had complied substantially with condition 8202.  There was no evidence that the applicant in Gurung had not complied substantially with the other conditions to which his visa was subject (and that part of the Tribunal decision quoted in the judgment reveals that the visa in question was subject to conditions 8501, 8503 and 8517 in addition to condition 8202).  Tamberlin J did not suggest that there was any difficulty with the logic that led the Tribunal from a finding about a lack of substantial compliance with one condition to a conclusion that the criterion akin to subclause 572.212 had not been met.  Indeed his Honour stated in Gurung at [15] that there was nothing to indicate that the Tribunal had adopted the wrong principles or had misapplied those principles to the circumstances of the case and that he did not consider that the evidence indicated any “substantial compliance with condition 8202”.

11. As the applicant contended, the passage quoted in Weerasinghe from Tamberlin J in Gurung referred only to the fact that the individual requirements of condition 8202 are cumulative.  However it is clear that in Weerasinghe Ryan J not only applied that reasoning in finding that as one of the requirements of condition 8202 was not met the condition was not met, but also went on to hold (at [12]) that the relevant clause of the Regulations required “substantial compliance with all of the conditions cumulatively” to which an applicant’s last visa was subject. 

12. This interpretation requires substantial compliance with each and every condition.  A Tribunal finding of a failure to comply substantially with one condition would mean that a decision to refuse to grant a Student visa would be upheld, as occurred in Weerasinghe.  This is clear from the fact that his Honour stated that the conclusion he had reached in relation to condition 8202 made it unnecessary to consider whether there had been substantial compliance with a second condition (condition 8501) with which the applicant was required to comply.  It is also apparent from his conclusion that the separate and distinct finding of a failure to comply with condition 8501 meant that the Tribunal decision must be upheld. 

13. In Weerasinghe Ryan J stated explicitly what is implicit in the earlier decisions.  The criterion considered in Weerasinghe (clause 573.12 of Schedule 2 to the Migration Regulations) is in the same terms as subclause 572.212 and applies to a subclass of the same class of visa.  As a matter of judicial comity I should follow the decision of Ryan J in Weerasinghe unless I am satisfied that it was clearly wrong.  In fact I am satisfied that his Honour’s reasoning accords with the statutory construction of subclause 572.212, that it is correct and should be followed. 

14. As the High Court stated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]:

    The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute … The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole” … In Commissioner for Railways (NSW) v Agalianos … Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.  Thus, the process of construction must always begin by examining the context of the provision that is being construed…

15. The provision in issue in this instance is a criterion for the grant of a subclass of student visa to a person who holds or has held a prior substantive visa in Australia. A number of specified conditions apply to a student visa. Some of the applicable conditions vary depending on the circumstances (see Clause 572.6). It is apparent that the requirement of substantial compliance with conditions of the visa last held is aimed at ensuring that those seeking further student visas have been meeting their obligations (which relate in essence to the purpose for which the visa was granted and to matters about their ability to maintain themselves and any family while in Australia). A visa may be cancelled where there has been a failure to comply with any single condition of the visa (see s.116(1)(b)). Indeed such cancellation will be mandatory pursuant to s.116(3) and Regulation 2.43(2) in the case of a student visa (such as the visa held by the applicant) where the Minister is satisfied that the visa holder has not complied with either condition 8104 (which imposes work restrictions) or 8105 or condition 8202. While the criterion in subclause 572.212 is expressed in terms of compliance rather than in terms of a failure to comply (cf s.116) the approach taken in Weerasinghe (which requires substantial compliance with each and every condition imposed) is in fact more consistent with the fact that a visa may be cancelled where there has been a failure to comply with one condition than the interpretation contended for by the applicant which would involve a significantly different approach in the context of the grant of a further visa.  Further, were it necessary, as the applicant contends, for the decision-maker to consider in a global sense whether there had been substantial compliance with all the conditions to which an earlier visa had been subject, this would require judgments to be made about the relative importance of particular conditions, vis a vis one another, rather than an assessment of factors that focus on substantial compliance with a particular condition in the manner suggested in Kim v Witton and Baidakova.  While, as Ryan J stated in Weerasinghe at [10], there is no scope for the concept of “substantial” compliance in relation to the part of condition 8202 in issue in this instance (condition 8202(3)(b)), it remains relevant in relation to the attendance requirements of condition 8202(3)(b).

16. It is also relevant to have regard to the fact that the issue of substantial compliance will only arise in relation to those conditions which have been breached.  The approach taken in Weerasinghe is consistent with the statutory scheme established by the Migration Act 1958 and Regulations in relation to student visas.  It is also consistent with the view that it is open to the decision-maker in determining whether there has been substantial compliance, to consider the significance of the breach of the particular condition in issue especially by reference to the purposes for which the visa in issue was granted. 

17. Having regard to the language of the Migration Act 1958 and Regulations as a whole I am satisfied that the interpretation applied to a criterion in the same terms as subclause 572.212 by Ryan J in Weerasinghe is correct and should be followed by this Court.  I am not persuaded that the Tribunal identified the wrong issue and asked itself the wrong question as contended in ground one of the amended application. 

Whether the Tribunal had to refer matters to the education provider for reassessment

1. The second ground relied on in the amended application is that the Tribunal failed to carry out its statutory function by completing its review of the visa application in that it failed to refer the applicant’s arguments and its own concerns to the education provider for reassessment. 

2. It was contended that in his response to the letter sent under s.359A of the Migration Act 1958 dated 21 September 2004 the applicant put a clearly articulated argument in relation to his academic performance to the effect that in two semesters he had studied six subjects and passed four of them and, because two were the same, effectively he had studied five subjects and passed four of them. 

3. It was argued that the Tribunal found as follows:

   [36]The visa applicant passed 50% of his subjects when he was at Insearch.  The university regulations state that a student only has to pass 50% of their subjects in order to be classified as passing  The Tribunal advised the visa applicant that it is unable to go behind the university statement that it regarded the visa applicant’s results as unsatisfactory in both Semester 2 and Semester 3. 

4. It was submitted that given the Tribunal’s findings in relation to the applicant’s attendance and the number of subjects he passed and the arguments raised in relation to Insearch’s assessment of his academic performance, as the Tribunal (which was inquisitorial and not adversarial) had doubt about the circumstances it should have referred the matter back to Insearch UTS for reassessment, there being no impediment to it doing so.  It was said that the failure to refer the matters to Insearch was a failure by the Tribunal to consider the issue it was legally required to consider and that such a failure could be a failure to carry out its statutory duty to review and/or a denial of natural justice. 

5. It is correct that there was no impediment to the Tribunal making further inquiries after having considered the applicant’s argument.  However, the fact that Tribunal has the power to make inquiries (and indeed initially did so when it contacted Insearch UTS), does not mean that it is obliged to do so or that failure to inquire will give rise to a jurisdictional error. 

6. Further while the applicant did put an argument to the Tribunal about his academic performance, contrary to the applicant’s contention the Tribunal was not making findings at paragraph [36] of its reasons for decision.  Rather it was, as is apparent from paragraphs [33] to [38] of the Tribunal decision as set out in full above, recording the visa applicant’s evidence at the Tribunal hearing and the Tribunal’s advice to the applicant in the course of that hearing.  It was the visa applicant who contended that he had passed 50 per cent of his subjects when he was at Insearch and that the university regulations state that a student only has to pass 50 per cent of their subjects to be classified as passing.   This is reinforced by paragraph [43] of the findings and reasons of the Tribunal in which the Tribunal noted that the visa applicant had stated that the University regulations indicated that the number of subjects he passed meant that he should have been deemed to have passed and hence achieved at least satisfactory results.  Paragraph [38] of the Tribunal decision does not establish that the Tribunal accepted the applicant’s submission or had ‘doubt’ about the Insearch UTS certification. 

7. There is nothing in the Tribunal reasons for decision to suggest that the Tribunal itself had doubt about the certification from Insearch UTS based on the University regulations or Handbook or expressed such a doubt to the applicant.  In particular I am not persuaded that the Tribunal accepted the applicant’s claims in relation to passing 50 per cent of his subjects or that this could be seen as satisfactory.  It set out these claims.  It also referred to the applicant’s academic record which showed nine subjects attempted over two semesters with five subjects failed, two passed, one credit and one pass conceded.  It referred to his weighted average mark and evidence of attendance.  However critically (and properly) in making its finding that the applicant had breached paragraph 3(b) of condition 8202 the Tribunal relied on the fact that the academic provider had not certified (as required by condition 8202) that the visa applicant’s academic result was at least satisfactory.  Rather the education provider had stated in its letter to the Tribunal that the applicant’s academic result was unsatisfactory for each of the two semesters during the visa period.  In other words the Tribunal had regard to the applicant’s claims but found that condition 8202 was not satisfied in the absence of certification.  It is notable that in contrast the attendance requirements (in condition 8202(3)(a)) are expressed as being met when the Minister (or Tribunal) is satisfied that the visa holder attended for at least 80% of contact hours scheduled.  It was in relation to condition 8202(3)(a) that the Tribunal assessed the attendance of the applicant itself as was open to it to do.  This does not mean that the Tribunal had itself to undertake the same assessment in relation to academic results – and indeed the applicant does not suggest that this is so (see Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294 at [30] per Allsop J as discussed below at [51]).

1. Insofar as this ground contends that the Tribunal had concerns of its own this is not established.  Nonetheless I have considered whether the Tribunal was obliged to refer the matter of whether the applicant’s academic performance was satisfactory back to the education provider for reassessment or to otherwise make inquiries of Insearch UTS. 

2. The solicitor for the applicant relied on what was said in Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389. It was contended that the Tribunal had failed to respond to a “substantive, clearly articulated argument relying upon established facts” (see Dranichnikov at [24] per Gummow and Callinan JJ). However in Dranichnikov the error into which the Tribunal fell was in misunderstanding the case that Mr Dranichnikov had put to it (in particular the description of the particular social group to which he said he belonged).  It was in that context that the Tribunal failed to decide the correct question.  The Tribunal’s obligation to proceed in the manner considered in Dranichnikov is not such as to establish that it has a duty to conduct inquiries in the manner contended in the present case.  It understood and addressed the applicant’s claims but found that they did not establish that the academic provider had certified that his results were satisfactory. 

3. The applicant also sought to rely on what was said by McHugh J in Applicant S v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 25. In that case his Honour stated at [76]:

   If the Tribunal had considered the issue that it was legally required to consider, it was open to the Tribunal to investigate whether such a perception existed, whether within Afghan society or some section of it, or objectively.  Indeed, arguably in the context of its inquisitorial process, the Tribunal had a duty to seek evidence concerning this vital matter.

4. McHugh J continued at [77]:

   By failing to consider whether young, able-bodied Afghan men constituted “a particular social group”, the Tribunal prevented itself from obtaining evidence concerning that issue, evidence that might have determined the application in favour of the appellant.

5. It was contended that in this case the Tribunal had the applicant’s articulated case before it (and had its own doubts) and in those circumstances had an obligation to put the matters to the education provider for reassessment.  However in Applicant S the Tribunal had failed to decide an issue.  In that context McHugh J suggested that it was arguable that the Tribunal would have to make some effort to seek evidence as to whether there was a perception in Afghan society that able-bodied young men comprised a particular social group.  This case does not establish that there is a duty to inquire in the manner contended for by the applicant.  In the present case all the information and evidence the Tribunal needed to decide the matter was in fact before it.  The issue was, relevantly, whether the applicant’s performance had been certified as satisfactory.  The Tribunal had a letter from Insearch UTS stating that the performance was not satisfactory.  It decided the issue it was legally required to consider.  Nothing in the circumstances of this case establishes that the Tribunal had a duty to inquire or to go behind the evidence to ask the provider whether it would like to change its mind about the evidence it had provided. 

6. As stated above, as Ryan J found in Weerasinghe at [10], there is no scope for the operation of the distinction between strict compliance and substantial compliance in relation to that part of condition 8202 which requires the holder to achieve an academic result that is certified by the education provider to be at least satisfactory. In considering whether there had been substantial compliance with condition 8202(3)(b) the Tribunal was in fact according the applicant ‘an excessively benevolent application’ of the relevant condition although, given the decision that was made, no jurisdictional error flows from that. This does not mean that the notion of substantial compliance cannot have an operation in relation to other requirements of condition 8202. (See for example condition 8202(3)(a).)

7. Insofar as the applicant is contending that the Tribunal was not entitled to find that the applicant breached condition 8202(3)(b), as Allsop J (with whom Tamberlin agreed) stated in Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCAFC 333, not only is there no obligation upon the Tribunal to inquire of a college to clarify its response to an inquiry about the applicant’s academic performance but also it is “not entitled to assay the task of assessing the progress of [the applicant] itself” (at [30]).  While Yu concerned cancellation of a student visa, the comments of Allsop J in relation to condition 8202(3)(b) are in point.  The Tribunal was not obliged to make the suggested inquiries (see WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277). Rather the proper task for the Tribunal was to consider whether the applicant had complied with the requirement of condition 8202(3)(b) in that he achieved an academic result that was certified by the education provider to be at least satisfactory. As in Yu, the Tribunal in this case had a certificate before it which stated that the applicant’s academic progress was unsatisfactory.  It was not obliged by any of the provisions of the Migration Act 1958 or Regulations or otherwise to seek to go behind the communication from the education provider.  (See Yu at [30]).

8. The applicant’s contention about the statement from the academic provider is, in effect, that the institution was wrong to regard his result as unsatisfactory.  It was not the duty of the Tribunal to act as a conduit for communications between the applicant and his education provider.  It would of course have been open to the applicant to provide further information or to seek to obtain clarification from the education provider.  It would also have been open to the Tribunal to seek further clarification from the education provider.  This does not mean that the Tribunal was under an obligation to do so. 

Whether applicant denied natural justice

1. Finally the applicant contended that the Tribunal denied him natural justice by failing to respond to the argument raised by him and not referring that argument to the education provider.

2. This ground overlaps with ground two discussed above.  As pointed out above, Dranichnikov is not support for the proposition relied upon by the applicant in relation to an obligation to make inquiries on the part of the Tribunal. The rules of natural justice would require the Tribunal to give the applicant a proper opportunity to put his case and to respond to adverse information. However I am not persuaded that natural justice would require the Tribunal to address arguments which, in view of the terms of condition 8202(3)(b), could not influence its decision. Nor is it required to relay such arguments to the education provider to see if it would change its mind. No lack of natural justice has been established. Hence it is not necessary to consider the effect of s.357A of the Migration Act 1958 which states that for the purposes of the Tribunal review the provisions of Division 5 of Part 5 are an exhaustive statement of the natural justice hearing rule in relation to the matters they deal with. 

3. Finally, in oral submissions the solicitor for the applicant contended that it was a requirement of natural justice that a person bound to act judicially base his decision upon the material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined.  Reliance was placed on what was said by Deane J in Minister for Immigration and Ethnic Affairs v Pochi (1979) 44 FLR 41at 67 based on R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 per Diplock LJ at 487 – 488.

4. It was contended that given the other material and arguments that were before the Tribunal, the certification from Insearch UTS could not be considered to be reasonably probative and that where there was a mechanism that could resolve the issue, the requirement of a fair hearing for the applicant required that the argument and the evidence of the University Handbook be put back to the education provider for comment.  However, whatever the scope for an argument based on this aspect of the decision in Pochi (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Gleeson CJ in the Re, Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59) in this instance the Tribunal had material that was probative on precisely the issue that it had to decide, that being whether there was compliance with condition 8202(3)(b). It had a letter from the education provider to the effect that the applicant’s performance was not satisfactory. This is not a case in which it can be said that the Tribunal did not base its decision on material which tended logically to show that the applicant had not complied (or indeed had not substantially complied) with condition 8202(3)(b).

5. As no jurisdictional error has been established the decision is a privative clause decision to which s.474 of the Migration Act 1958 applies and the application must be dismissed. 

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  6 September 2005