Gunawardena v Minister for Immigration - [2003] FMCA 362

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GUNAWARDENA v MINISTER FOR IMMIGRATION

[2003] FMCA 362

MIGRATION – Review of decision of the Migration Review Tribunal – refusal to grant a class TU subclass 572 visa – applicant's failure to comply with condition 8202 – no reviewable error disclosed.

Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth)
Migration Legislation Amendment (Overseas) Students Act 2000
Migration Regulations 1994 (Cth)

Kim v Witton (1995) 59 FCR 1672

Applicant:

THARANGA SANDAMAL AMARASIRI GUNAWARDENA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ502 of 2002

Delivered on:

27 August 2003

Delivered at:

Melbourne

Hearing Date:

29 January 2003

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicant:

Mr Godson Nwankwo

Solicitors for the Applicant:

Di Mauro Solicitors

Counsel for the Respondent:

Mr C Horan

Solicitors for the Respondent:

Clayton Utz

ORDER

The application is dismissed.
The applicant is to pay the respondent's costs and disbursements of and incidental to the application pursuant to the Federal Magistrates Court Rules 2001.
It is certified that pursuant to r 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ502 of 2002

THARINGA SANDAMAL AMARASIRI GUNAWARDENA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

On 27 May 2002 the applicant filed an application to review, under s.39B of the Judiciary Act 1903 (Cth), a privative clause decision made on review by the Migration Review Tribunal under Part 5 of the Migration Act 1958 (Cth). Contemporaneously, the applicant filed an affidavit sworn 27 May 2002. On 28 January 2003 the applicant filed an addendum to that application notifying of an additional subclause to be added to clause 3 and an addendum to the contentions of fact and law that had been filed. The applicant sought an order of prohibition, mandamus and an order in the nature of certiorari in relation to a decision of the Migration Review Tribunal (MRT) made on 30 April 2002 finding the applicant to not be entitled to the grant of a student (temporary) (class TU) visa subclass 572. The jurisdictional errors claimed are as set out in paragraph 3 of the application (a) to (e) inclusive ((e) being included in the addendum to application document filed).

History

The applicant, Mr Gunawardena, is a 26-year-old citizen of Sri Lanka. He arrived in Australia on 14 July 1999 as the holder of a class TU subclass 560 student (temporary) visa. This visa expired on

28 September 1999 upon which the applicant was granted another subclass 560 visa which was valid until 30 July 2001 (CB 53.3). On

30 July 2001 the applicant lodged an application for a class TU subclass 572 visa.
On 16 August 2001 a delegate of the respondent refused to grant a visa to the applicant. On 18 September 2001 the applicant lodged an application with the Migration Review Tribunal and on 30 April 2002 the Tribunal handed down its decision affirming the delegate's decision.
The Tribunal's findings were succinctly set out in the respondent's contentions at paragraph 5 as follows:
a)The Tribunal found the applicant's attendance record during the duration of his last visa showed an attendance of 66 per cent of classes in Semester 1 of 2000; 86 per cent of classes in Semester 2 of 2000; and 66 per cent of classes in Semester 1 of 2001 (CB 55).
b)The Tribunal found the applicant's academic results over this period showed that the applicant had failed four out of four subjects in Semester 1 of 2000; had failed one out of four subjects in Semester 2 of 2000; and failed two out of four subjects in Semester 1 of 2001. Further, there was no certification from his education provider (RMIT) that his results were at least satisfactory for each semester (CB 55).
c)The applicant had therefore failed to comply with condition 8202(c) which required attendance of at least 80 per cent of the contact hours scheduled in each semester, and condition 8202(d) which required an academic result that was certified by the education provider to be at least satisfactory for each semester of the course (CB 56).
d)
Having considered the applicant's explanations for his failure to comply with the above requirements (CB 53–54, paragraphs

13 to 16), the Tribunal was not satisfied that the applicant had complied substantially with condition 8202 of his previous visa, and therefore failed to satisfy clause 572.212 (CB 56).

Statutory scheme

The applicant was required to satisfy the criteria prescribed by subclass 572 of Schedule 2 of the Regulations in order to obtain a Class TU subclass 572 visa.
Clause 572.212 of the Regulations required that at the time of the visa application the applicant must have “complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject.” Clause 572.226 required that the applicant should continue to satisfy this criterion at the time of decision.
The visa last held by the applicant was a subclass 560 visa granted on 28 September 1999 and valid until 30 July 2001. Condition 8202 of Schedule 8 to the Regulations was a condition of the holding of a subclass 560 visa. Clause 8202 relevantly states:
“8202 (a) in the case of the holder of a sub-class 560 visa who is an AusAID or secondary school exchange student – the holder is enrolled in a fulltime course of study; and
(b) in any other case – the holder is enrolled in a registered course; and
(c) 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 scheduled:
(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
(d) 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.”
As a result of Clause 4 of Schedule 4 to the Migration Legislation Amendment (Overseas) Students Act 2000, the applicant’s previous visa was taken “for all purposes” to have been subject to condition 8202 as set out above.
The Tribunal considered the information regarding the visa applicant’s academic performance and attendance record during the duration of the visa last held by the applicant. Attendance records provided by RMIT showed the visa applicant had an attendance of 66% in Semester 1 of 2000, 86% in Semester 2 of 2000 and 66% in Semester 1 of 2001. The breakdown of the visa applicant’s results from RMIT showed that in Semester 1 of 2000 the visa applicant undertook four subjects and failed them all. In Semester 2 of 2000 the visa applicant undertook four subjects and passed three out of four subjects. In Semester 1 of 2001 the visa applicant studied four subjects and passed two and failed two. There was no certification from his education provider that his results were at least satisfactory for each semester.
The Tribunal considered Regulation 572.212 which required that the applicant had complied substantially with the conditions of the visa held or last held and noted that that regulation contemplated some degree of non-compliance as being permitted.
The Tribunal considered the guidance provided by Sackville J in Kim v Witton (1995) 59 FCR 1672 as to how the factual issue of substantial compliance should be assessed. The Tribunal was mindful that it should have regard to circumstances beyond the control of the visa applicant such as absence or failure due to illness and whether the visa applicant was able to provide evidence in support of those circumstances, such as medical certificates. The Tribunal concluded that the visa applicant did not meet the requirements for the grant of the visa sought in his application because the visa applicant did not meet the requirements of condition 8202 (c) and (d). The Tribunal was not satisfied that at the time of application the visa applicant had complied substantially with condition 8202 of his previous visa. Consequently the Tribunal found the applicant to not satisfy Regulation 572.212.
The Tribunal provided the applicant with his attendance records showing his attendance at RMIT during 2000 and 2001. In a submission to the Tribunal dated 21 March 2002, the applicant’s solicitors did not advance any explanation for the non-attendance of the applicant. In evidence given by the applicant at the hearing however, he said that he “sometimes forgot to sign the attendance record which was passed around during lectures” (CB 54). The Tribunal took into account this explanation but nevertheless found that the applicant did not meet the requirements of Condition 8202(c). To the extent that the applicant suggested in his evidence to the Tribunal that he had in fact attended more than 80% of scheduled classes, but that such attendance was not reflected in the attendance records, it is implicit in the Tribunal’s findings that it did not accept this evidence of the applicant. The applicant had an opportunity to address the Tribunal as to this matter and to submit any material concerning it and the Tribunal was not under an obligation to notify the applicant of its doubts in this regard.
Condition 8202(d) required the applicant to have achieved an academic result that was certified by the education provider to be at least satisfactory. It was not a matter that the Tribunal was required to assess for itself. The applicant provided no certification from the education provider. The Tribunal’s decision related to the applicant’s attendance and results in semesters which occurred prior to 30 July 2001, that being the expiration date of his previous visa.
The question whether or not the applicant had substantially complied with Condition 8202 was a question of fact for the Tribunal to determine having regard to the matters before it. On a fair reading of the Tribunal’s reasons, it cannot be said that the Tribunal limited its consideration to “circumstances beyond the control of the visa applicant, such as absence or failure due to illness.” The Tribunal had also noted that it was necessary to consider matters such as the nature and significance of the non-compliance, what caused or contributed to it and whether there was a knowing disregard of the condition and any explanation by the applicant for his non-compliance (CB 55-56). The Tribunal’s consideration was on the subjects in the Advanced Diploma in Information Technology in which the applicant had enrolled in 2000. The Tribunal placed no reliance on his academic results for the earlier course as indeed it could not.
The Tribunal took each of the matters raised by the applicant into account in determining whether or not he had satisfactorily complied with Condition 8202. The Tribunal was entitled to come to the view that the applicant had not complied with Condition 8202 from the evidence which was before it.
It follows in my view that the applicant has not succeeded in showing any ground for an order being made under section 39B of the Judiciary Act. The decision is a privative clause decision which breaches none of the so-called “Hickman” provisos. I therefore must dismiss the application and order that the applicant pay the respondent’s costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: T. Jones

Date: 26 August 2003