Edla v Minister for Immigration - [2006] FMCA 1634

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EDLA v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1634

MIGRATION – Application to review decision of Migration Review Tribunal – refusal of student visa – whether Tribunal provided opportunity for applicant to be heard – whether Tribunal erred in application of condition 8202 – whether reasoning illogical – whether failure to consider claims or to give reasons – no jurisdictional error.

Migration Act 1958, s.359A

Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Kim v Witton (1995) FCR 258
Minister for Immigration & Multicultural & Indigenous Affairsv Lat (2006) 151 FCR 214
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant:

DEVRAJ PHILEMON RAJ EDLA

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG604 of 2005

Judgment of:

Barnes FM

Hearing date:

19 October 2006

Delivered at:

Sydney

Delivered on:

19 October 2006

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr G. Johnson

Solicitors for the Respondent:

Phillips Fox

ORDERS

The name of the applicant be changed to Devraj Philemon Raj Edla.
The name of the First Respondent be changed to the Minister for Immigration & Multicultural Affairs.
The Migration Review Tribunal be added as a respondent to the proceedings in lieu of the second and third respondents.
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG604 of 2005

DEVRAJ PHILEMON RAJ EDLA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Migration Review Tribunal (the Tribunal) made on 13 October 2004 affirming a decision of a delegate of the first respondent that the applicant was not entitled to the grant of a Student (Temporary) (Class TU) visa.
The background to these proceedings is that at the time the applicant applied for the Student visa in issue (28 August 2003) he held a Student visa Subclass 574 that had been granted on 27 March 2002 subject to conditions including, relevantly, condition 8202. As it stood at the relevant time condition 8202 required, among other things, that the visa holder achieve an academic result that was certified by the education provider to be at least satisfactory for each term or semester of the course.
The applicant had undertaken studies at Southern Queensland University and Central Queensland University. He sought the further visa to enable him to undertake a Graduate Diploma of Information Systems Management course at Central Queensland University. However a delegate of the respondent was not satisfied that the applicant met the criterion for the visa that he had complied substantially with the conditions to which his earlier student visa was subject, in particular condition 8202. The visa application was refused.
The applicant sought review by the Migration Review Tribunal. In his handwritten application for review he provided his residential address as his address for correspondence. He did not give details of a representative.
On 2 August 2004, the Tribunal wrote to the applicant under s.359A of the Migration Act 1958 (Cth) (the Act) inviting him to comment on information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review. The letter was addressed to the applicant at an address “Watkim Street”. It may not be entirely clear from the handwritten application for review whether “Watkim” was the correct spelling for the applicant’s then notified street address or “Watkin”, however in his visa application the same residential address was clearly identified as “Watkin Street”. It appears that this letter was returned to sender.
On 18 August 2004 the Tribunal sent a fresh s.359A letter to the applicant at the “Watkin Street” address, consistent with the typed address in the student visa application and the address in the review application. The letter was otherwise in the same terms as the letter of 2 August 2004. This letter was returned to sender marked “wrong address”. There is no suggestion that any address other than the address provided in the application for review was provided to the Tribunal by the applicant and (should there be any doubt about the correct spelling of the street name) the Tribunal wrote to him the applicant at both “Watkim” and “Watkin” Streets.
The information in the letter included information that had been provided to the Department in relation to the applicant’s academic performance: in particular, information from Southern Queensland University as to his studies between March 2002 and March 2003; an academic transcript indicating that he had failed all nine subjects undertaken during semesters 1, 2 and 3 of 2002 and that the University had confirmed that he had not achieved satisfactory results in those semesters; a transcript from Central Queensland University (the next institution at which he studied) indicating that during the Autumn term of 2003 the applicant had failed all three subjects, and failed two of three subjects for the Winter term while a third was deferred as he did not sit the examination and that due to his unsatisfactory academic results on 20 February 2004 the applicant had been placed on a Student Monitoring Contract to ensure he met required satisfactory performance.
The Tribunal pointed out in the letter that the information indicated that the applicant may not have complied substantially with condition 8202. The letter also informed the applicant of the time he had to make the comments, that he could seek additional time but that if the Tribunal did not receive comments in the period allowed it may, under s.359C of the Act, make a decision on the review without taking further action to obtain his comment and that in addition he would not be entitled to appear before the Tribunal.
In its reasons for decision the Tribunal outlined the material provided to the Department and that was before it from Central Queensland University and Southern Queensland University as summarised in the s.359A letter. It recorded that the applicant had also submitted a medical certificate from St George Private Medical Centre indicating that from 16 October 2002 until 4 November 2002 he was unable to attend classes at Southern Queensland University because he was recovering from surgery.
The Tribunal then referred to the s.359A letter of 18 August 2004, the fact that the applicant had not made any comments before the time provided for under the Migration Act. The Tribunal therefore decided to make a decision on the review without taking any further action to obtain the applicant’s views on the information (see s.359C). The Tribunal stated that it had also decided not to invite the applicant to a hearing (s.360 of the Migration Act).
In the findings and reasons part of its decision the Tribunal indicated that the issue before it was whether the visa applicant had complied substantially with the conditions to which the visa he held at the time of the application was subject. The Tribunal set out the test (see Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436 and Kim v Witton (1995) FCR 258) to be considered by the Tribunal in determining whether a visa applicant had complied substantially with a visa condition.
The Tribunal found that during the period of the prior visa the applicant had failed all subjects attempted at both universities and that neither of his education providers had certified that he had achieved academic results that were at least satisfactory. It therefore found that he did not achieve an academic result that was certified by the education provider to be at least satisfactory for any semester during the period of the visa as required by condition 8202.
The Tribunal went on to address the issue of substantial compliance and the material put before the Department by the applicant as to his reasons for not achieving satisfactory academic results. It referred to his submissions that Southern Queensland University lacked an adequate study environment which did not suit him in semester 1 of 2002; that in semester 2 of 2002 he had had an operation severely interfered with his study and examination period and that he had been unable to complete his exams satisfactorily; that owing to the poor education experience he had changed institutions at the end of 2002; that although he thereafter failed all subjects attempted at Central Queensland University he had continued to meet the required satisfactory academic performance criteria of the University provided he complied with the student monitoring program.
However the Tribunal found that the applicant’s non-compliance with condition 8202 was for the whole of the visa period in issue. It was satisfied that he was aware that he was not complying with condition 8202. It found he had not complied substantially with condition 8202 of the visa he last held at the time of the application. It was not satisfied on the basis of those findings that the applicant met the criterion in Schedule 2 to the Migration Regulations for the relevant subclass of Class TU Student visa that he had complied substantially with the conditions to which the student visa he held at the time of application was subject. On that basis the Tribunal affirmed the decision under review.
The applicant sought review of the Tribunal decision by application filed in this Court on 10 March 2005. An amended application was filed on 14 June 2005. At that time the applicant was represented.

The applicant did not file written submissions. The applicant’s solicitor was present in Court today but indicated that he understood that he had no further instructions from the applicant. He sought and was granted leave to withdraw. In a statutory declaration tendered in Court the applicant, who was also present today, stated that he was aware the hearing was today, that he did not need the solicitor and that he would like to “go on” on his own. The applicant made oral submissions to the Court.
I have considered the grounds in the amended application and also the submission made by the applicant today. The first ground in the amended application is that the Tribunal did not provide an opportunity for the applicant to be heard. It was contended in the application that posting a letter to the applicant was a “far cry” from it having been “served” on the applicant and that a basic principle of the common law rules of natural justice was that a person whose interests were likely to be affected by an exercise of power should be given an opportunity to deal with relevant matters adverse to his or her interests that the decision-maker proposed to take into account. It was suggested that nothing in the Migration Act 1958 (Cth) indicated a clear intention to exclude this principle of natural justice.
Dealing first with the requirements of the Migration Act, as indicated above, the Tribunal wrote to the applicant under s.359A of the Act on two occasions, to both “Watkim” and “Watkin” Streets. The letters were each apparently “returned to sender”, the earlier one marked “not at this address” and the second one marked “wrong address”. No other address had been provided by the applicant to the Tribunal. In oral submissions today the applicant told the Court that he had changed his address but did not suggest that he had provided notification of any change of address to the Tribunal.
In those circumstances the Tribunal proceeded not to take any further step to invite the applicant to comment on the information and formed the view that it should not invite him to a hearing. There is nothing in the material before the Court to suggest that the Tribunal failed to comply with the notification requirements of the Migration Act. Contrary to the contentions in the amended application, actual service on the applicant of a s.359A letter is not required under the provisions of the Migration Act. Relevantly s.359A(2) provides that the information and invitation (and I note that no issue was taken with the content of that information and invitation) must be given to the applicant by one of the methods specified in s.379A of the Act.
Section 379A sets out a number of ways of providing the information including, under s.379A(4), by despatching a document within three working days of the date of the document by prepaid post or other prepaid means, to the last address for service provided or the last residential or business address provided to the Tribunal by the recipient in connection with the review. In this case, the Tribunal sent the s.359A letter to both “Watkim” and “Watkin” Streets. In that way met its obligation to send the letter to the address provided by the applicant in connection with the application for review.
Pursuant to s.379C, if the Tribunal gives a document to a person by one of the methods specified in 379A, then the person is taken to have received the document seven working days after the date of the document. This is so even if it is clear that the applicant has not actually received it, as may be the case in this instance where both letters were apparently returned to the Tribunal. In those circumstances the Tribunal was entitled to proceed under s.359C of the Act to make a decision on the review without taking further action to obtain the applicant’s views on the information and under s.360 the applicant was not entitled to appear before the Tribunal. I note in that respect that the Tribunal considered the issue of a hearing, but decided not to invite the applicant to a hearing. No failure to comply with the Migration Act has been established.
The argument that something more than compliance with the provisions of the Migration Act is required is not established. Insofar as there is reliance on common law principles of natural justice, s.357A of the Migration Act, which is applicable in this instance, provides that the subdivision that includes the provisions to which I have referred is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that it deals with (see Minister for Immigration & Multicultural & Indigenous Affairsv Lat (2006) 151 FCR 214 and SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62). No jurisdictional error is established on the basis contended for in ground 1 of the amended application.
Ground 2 in the amended application is that the Tribunal wrongly determined that condition 8202 had not been substantially complied with after having been informed of the applicant’s medical history. However, as contended for by the first respondent, it was a question of fact for the Tribunal whether or not there had been substantial compliance with condition 8202. The Tribunal set out and applied the relevant test in relation to substantial compliance (consistent with Baidakova and Kim). It clearly understood the distinction between compliance and substantial compliance. It referred to the applicant’s medical certificate in relation to the period 16 October 2002 until

4 November 2002 and also had regard to his other submissions in relation to his academic performance.
However, having set out such claims it went on to find in particular, that despite that the applicant’s claims in relation to October to November 2002, his non-compliance with condition 8202 was for the whole of the visa period (from 27 March 2002 to 30 August 2003). The Tribunal also had regard to whether or not the applicant appreciated that he was in breach of the condition. It found that the applicant was aware that he was not complying with condition 8202. On the material before it the Tribunal therefore found that the applicant had not complied substantially with condition 8202. No failure by the Tribunal to apply the criterion in issue has been established. Insofar as the applicant takes issue with the merits of the Tribunal decision, that is a matter for the Tribunal and merits review is not available in this Court.
The next ground, described as ground 6, is in fact the third ground relied on in the amended application. It is that the Tribunal’s reasoning was of a kind that could be labelled irrational or so illogical as to indicate a failure to perform the review function at all. Reference was made to Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, although the argument was not developed in the amended application. In any event it is not apparent on the material before the Court that the Tribunal’s decision was irrational or illogical, let alone irrational or illogical in a manner constituting jurisdictional error. The Tribunal provided reasons for its conclusion. It considered the applicant’s information and submissions provided to the Department. It had regard to factors relevant to the question of substantial compliance, such as the extent of the non-compliance, the length of the period and the applicant’s awareness of the non-compliance as well as fact that the medical certificate was for a limited part of the time in issue. No jurisdictional error is established on the basis contended for in this ground.
The next ground, described as ground 7, is that the Tribunal failed to give proper and adequate reasons as required by the Migration Act and that therefore the Tribunal failed to exercise its jurisdiction. Again, for the reasons set out above, this proposition is not established. I note in any event the authority of the Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 to the effect that a breach of the Tribunal’s obligation to state reasons would not, of itself, be a jurisdictional error. However the Tribunal did provide reasons based on the material before it.
Finally the amended application alleges that the Tribunal erred in failing to consider all the claims and issues put forward by the applicant. This allegation is not particularised and there is nothing in the material before the Court to indicate that anything put forward by the applicant was not considered by the Tribunal. It has not been established that the Tribunal failed to have regard to a relevant consideration in a manner constituting jurisdictional error, as to which see Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42] per Allsop J with whom Spender J agreed.
In oral submissions the applicant acknowledged that he had changed his address and because of this he had not received the s.359A letter. He was not able to point to any legal error in the Tribunal decision but, in effect, sought a further opportunity to undertake studies as the holder of a student visa. However, as I informed the applicant, it is necessary for the Court to be satisfied that there was a jurisdictional error in the Tribunal decision or procedures.
The applicant also suggested that he had had some discussions with the University and that issues other than his medical condition in 2002 had affected his performance. However his attempt to provide a further explanation for his results based on his dealings with the University does not assist him in these proceedings, as there is no suggestion that any other issues that may have affected his performance at the University were put to the Department and certainly no such information was provided to the Tribunal. In those circumstances nothing that the applicant said in oral submissions today goes to show that the Tribunal made any error, let alone an error constituting a jurisdictional error. The application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and should meet the costs of the first respondent. I consider that the amount of $5,000 is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 28 November 2006