IQBAL v Minister for Immigration - [2015] FCCA 1112

FEDERAL CIRCUIT COURT OF AUSTRALIA

IQBAL v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1112

Catchwords:
MIGRATION – Student visa – Judicial Review – Migration Review Tribunal – Procedural fairness – unreasonableness.

Legislation:

Migration Act 1958 (Cth), s.357(A)

Migration Regulations 1994 (Cth), cl.572.235

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Craig v South Australia (1995) 184 CLR 163
Kruger v Commonwealth (1997) 190 CLR 1
Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Montero v Minister for Immigration and Border Protection [2014] FCAFC 170
SZLPN v Minister for Immigration and Citizenship [2010] FCA 202
SZSMZ v Minister for Immigration and Border Protection [2014] FCA 191

Applicant:

MUGLIB IQBAL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 689 of 2013

Judgment of:

Judge Howard

Hearing date:

18 February 2015

Date of Last Submission:

18 February 2015

Delivered at:

Brisbane

Delivered on:

1 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr P. Travers

Solicitors for the Applicant:

Chand Lawyers

Counsel for the Respondents:

Ms A. Wheatley

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the application be dismissed with costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 689 of 2013

MUGLIB IQBAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

The applicant is a citizen of Pakistan. He arrived in Australia on 6 August 2008. At that time the applicant was the holder of a Subclass 572 student visa which had been granted to him on 9 July 2008. That visa expired on 24 June 2009.
The applicant was granted a further Subclass 572 student visa on 13 January 2010. That visa expired on 8 April 2011. On 8 April 2011 the applicant applied for a further student visa.
A Delegate of the first respondent Minister made a decision on 28 September 2011 refusing to grant the applicant the visa he then sought. The Minister’s Delegate was not satisfied that the applicant had met the appropriate conditions of his last substantive visa. In particular, the Delegate decided that the applicant had not satisfied clause 572.235 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The Delegate concluded that the applicant had not complied substantially with condition 8202 of the visa which had expired on 8 April 2011 (hereinafter referred to as, “the Old Visa”). The reason was that the applicant was not enrolled in a registered course of study between the dates of 16 April 2010 and 8 February 2011.
The applicant applied for a review of the Delegate’s decision to the Migration Review Tribunal. He applied on 29 September 2011.
The Migration Review Tribunal invited the applicant to appear at a hearing and to give evidence and put forward any arguments. The applicant and his representative both attended before the Tribunal on 16 July 2013.
In a decision dated 17 July 2013 the Migration Review Tribunal affirmed the Delegate’s decision. In an application filed on 13 August 2013 the applicant sought Judicial Review by the Federal Circuit Court of Australia of the decision of the Migration Review Tribunal dated 17 July 2013.
At the request of one or both of the parties, the matter was adjourned on two occasions. The matter came on for final hearing on 18 February 2015.
On that date the applicant applied for leave to amend the application for review. The application for leave to amend was granted. Indeed the first respondent Minister, by his counsel, Ms Wheatley, conceded that there would be no prejudice suffered by the Minster if the amendments sought were allowed. Further, the first respondent did not seek an adjournment even though the application for leave to amend the substantive application was granted.
As noted, the decision made by the Minister’s Delegate which was subsequently affirmed by the Migration Review Tribunal related to a refusal (pursuant to cl. 572.235 of Schedule 2 to the Regulations) to grant a further visa. That clause provides:
“572.235. 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.”
As noted earlier, the relevant last “substantive visa” is referred to in these reasons for judgment as the “old visa”.
Condition 8202 of the old visa (as it applied to the current case) provided, inter alia:
“8202(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).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) in the case of the holder of a subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student – the holder is enrolled in a full-time course of study or training.
(3) A holder meets the requirements of this subclause if neither of the following applies:
(a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.”
Therefore, the applicant was required to have “complied substantially” with condition 8202 as noted above.
The old visa ran for a period of 15 months. In particular, the old visa ran from 13 January 2010 until 8 April 2011. When the applicant applied for a further student visa he needed to show that he had “complied substantially” with, inter alia, condition 8202 of the old visa. In essence, the applicant needed to be able to show that he had complied substantially with the requirement that he was enrolled in a registered course. The applicant accepted that there was a period of non-enrolment in a registered course from April 2010 to February 2011. Therefore, for a period of 10 months during the 15 months of the old visa – the applicant did not comply with condition 8202.
The conclusion reached by the Tribunal was that the non-enrolment during the 10 month period was a significant breach of condition 8202. The Tribunal then concluded that the applicant had not “complied substantially” with the conditions of the old visa. To put it another way, the applicant had not satisfied the requirements of cl.572.235 of the Regulations. Accordingly, the Migration Review Tribunal affirmed the earlier decision of the Delegate.
In the findings and reasons of the Tribunal (from page 145 of the Court Book (exhibit 1)) the Tribunal stated:
“Findings and Reasons
30. The issue in the present case is whether, at the time of this decision, the applicant has complied substantially with Condition 8202 of his Subclass 572 Vocational Education and Training Sector visa granted on 13 January 2010. There is no evidence before the Tribunal to suggest that the applicant has not complied with the conditions of his subsequent Bridging visa.
31. For the following reasons, the Tribunal is not satisfied that the applicant has complied substantially with Condition 8202 of his Subclass 572 Vocational Education and Training Sector visa.
32. The applicant gave evidence that he does not dispute that he had a period of non-enrolment in any registered course for the period from April 2010 to February 2011. He also confirmed that he knew by failing to be enrolled it could affect his visa but claims that his personal situation prevented him from being enrolled for that period of time. Given this the Tribunal finds that for a 10 month period during the 15 months that he held his last Subclass 572 visa, the applicant was not enrolled and did not comply with condition 8202.
33. On the authority of Liu v MIMIA [2003] FCA 1170 even a temporary gap in enrolment will mean that the enrolment requirement is breached. However, it does not necessarily follow that there could be no substantial compliance in those circumstances. It would appear that the substantial compliance provisions necessarily contemplate some degree of non-compliance. For example, the Tribunal recognises that there are practical difficulties in being enrolled continuously.
34. However, in determining whether an applicant has complied substantially with this condition, the Tribunal is entitled to take into account a range of matters according to the evidence in the particular case, including subjective matters such as the applicant’s reasons for failing to satisfy the condition. The Tribunal has taken into account the factors suggested in Kim v Witton (1995) 59 FCR 258………
35. In relation to the question of “substantial compliance” the Tribunal has considered the applicant’s comments in relation to his non-enrolment for this period.
36. The Tribunal has considered the applicant’s personal circumstances as described by him at the hearing. The Tribunal accepts that there are sometimes difficult situations and family issues in an international student’s home country and that the applicant appears to have had difficulty coping as a student in Australia.
37. The Tribunal does not accept that under these circumstances it can be satisfied that the applicant complied substantially with the condition to be enrolled. The applicant provided no account of any steps he took to ensure that he remained enrolled as a student. He stated that although he saw a doctor, he did not obtain a medical certificate to give his education provider in order to seek a deferment of his enrolment. He said he knew that by not being enrolled this would have impact upon his visa, however he took no steps to discuss his visa with the Department or an advisor.
38. Enrolment in a registered course specified for the subclass of a student visa is a core requirement of a student visa and is clearly set out in condition 8202. The applicant acknowledged at the hearing that he knew he had to remain enrolled.
39. The Tribunal considers that it was a significant breach of a condition of his previous visa for the applicant not to be enrolled from April 2010 until February 2011 during the period of his last visa which expired in April 2011. In this case, the applicant was granted a visa for the purpose of his enrolment to study in Australia. During the period he held his student visa, the applicant had a significant period of non-enrolment as he claimed this resulted from his inability to satisfactorily cope with general problems of the situation in Pakistan plus a period of hospitalisation and ill health of his younger brother in Pakistan and lack of financial support from his family. The Tribunal considers that while there is no evidence to indicate that the applicant deliberately flouted the visa condition, as noted above, the significant period of non-enrolment gap was the result of his own action in not continuing his study and his enrolment being cancelled by the education provider. The Tribunal considers that this enrolment gap was the result of the applicant experiencing personal problems and not having access to financial support from his family, as described above. When considered against the purpose of the visa and the applicant’s failure to complete the proposed courses of study for which his visa was granted, the Tribunal views the applicant’s enrolment gap to be serious and indicative that he did not comply substantially with the requirements of Condition 8202(2)(a) and hence those of Condition 8202 as a whole.
40. Accordingly, the Tribunal finds that the applicant has not complied substantially with the conditions of his last held visa and any subsequent bridging visa.
CONCLUSIONS
41. For the reasons given above, the Tribunal is not satisfied that the applicant satisfies cl. 572.235 of Schedule 2 of the Regulations.
42. With the exception of Subclass 580, the other subclasses within the Class TU visa class have an equivalent provision requiring the applicant to have complied substantially with the conditions of the last held visa and any subsequent bridging visa. For the reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass.
DECISION
43. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.”

Ground One

The grounds of review as particularised in the amended application filed by leave on 18 February 2015 state:
“Particulars for Ground 1
The Tribunal failed to look at the totality of conditions attached to the applicant’s visa and failed to ask itself whether the applicant had complied substantially with those conditions taken as a whole, given the circumstances faced by the applicant during that period.
2. The Tribunal engaged in conduct which amounted to jurisdictional error in that it acted unreasonably in its determination of the application by making a decision that no decision maker, acting reasonably, could have made in the circumstances.
Particulars for Ground 2
The Tribunal failed to consider all relevant facts in the matter, including the applicant’s complete enrolment and attendance record, in determining whether the applicant had complied substantially with the conditions of the relevant visa.”
The High Court of Australia in a decision entitled Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 stated, from paragraph 82 (per McHugh, Gummow and Hayne JJ):
“82. It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia (1995) 184 CLR 163 if an administrative tribunal (like the Tribunal):-
“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it”.
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”
The decision of the High Court of Australia in Craig v South Australia (1995) 184 CLR 163 provides (in the passage quoted as part of the decision in Yusuf (supra) the crucial guidance relied upon by Australian Courts undertaking Judicial Review of administrative decisions.
It is well settled that this Court must not embark upon a merits review (SZSMZ v Minister for Immigration and Border Protection [2014] FCA 191 at [26]).
The applicant, in the amended application filed by leave on 18 February 2015 refers, in ground one, to what is said to be a denial of procedural fairness by the Tribunal – by giving “more weight to observations made by the Delegate”.
It is well settled that, in relation to the weight that the Tribunal places on various matters – such weight is exclusively within the domain of the Tribunal. In SZLPN v Minister for Immigration and Citizenship [2010] FCA 202 at [11] Flick J noted:
“11… Jurisdictional error thus does not comprehend errors of fact as to the merits of the case advanced before the Tribunal nor the weight attributed to evidence going to the issues raised before the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] per Gray, Tamberlin and Lander JJ.”
In relation to the question of procedural fairness – I note that there is an exhaustive statement of the requirements of the natural justice hearing rule contained in the Migration Act 1958 (Cth) (“the Act”). In particular s.357(A) confirms that Division 5, Part 5 of the Act is indeed such an exhaustive statement.
To the extent that the applicant may have been advancing an argument that the non-compliance relates to his non-attendance in an appropriate course – that is not correct. The non-compliance in relation to the conditions placed upon the old visa is in fact the failure to be “enrolled’ in a registered course.
The Tribunal confirmed that the relevant issue here was the failure, by the applicant, to be enrolled in a registered course. Note paragraph 32 of the decision of the Tribunal (quoted above in paragraph 15 herein). In particular, I note the reference to the fact that the applicant accepted that he had a period of non-enrolment in a registered course for the period from April 2010 to February 2011.
In a decision entitled Montero v Minister for Immigration and Border Protection [2014] FCAFC 170 the Full Court of the Federal Court of Australia considered the term, “complied substantially” – in so far as that term relates to conditions placed upon the last “substantive visa” (in the present case the conditions placed upon the old visa). The conclusion of Flick J (Allsop CJ and Logan J concurring) was stated in paragraph 29 of the decision as follows:
“29. The principal reason for this conclusion is that that result is the natural and ordinary meaning conveyed by cl 3004(e). It was accepted by Senior Counsel for Mr Montero that had the word “substantially” not been included within cl 3004(e), the clause would require compliance with each of the conditions applying to “the last of any substantive visas” held by an applicant. If that word had not appeared in cl 3004(e), an applicant would be required to comply with each condition. The inclusion of the word “substantially” does not dictate any different conclusion. All that the presence of that word adds to the meaning of cl 3004(e) is that there must be “substantial compliance” with “the conditions” – not one or other of those conditions, but “substantial compliance” with “the conditions”. The word “substantial” simply identifies the extent of compliance; it does not affect the identification of “the conditions” which must be complied with.”

Therefore the requirement that a person (in the applicant’s position) has “complied substantially” – is a requirement that such a person complied substantially with each and every condition placed upon a visa.
There was, for instance, no need for the Tribunal to consider any other conditions (for instance condition 8202(3) concerning satisfactory course progress or attendance). Because the applicant had not been enrolled in a registered course for 10 months of the 15 months under the old visa it was well open for the Tribunal to conclude that the applicant had not complied substantially with the conditions of the old visa. This is so because, as noted recently by the Full Court in Montero’s case – there must be substantial compliance with each and every condition. The failure by the applicant to substantially comply with condition 8202 leads to the inexorable conclusion that the applicant was unable to satisfy the requirements of cl. 572.235.
As to this part of the first ground of review relied upon by the applicant – I have come to the conclusion that no jurisdictional error has been established.
Within ground one there is also a reference by the applicant to an alleged failure by the Tribunal to “make its own investigation from the college when adverse matters were brought to the Tribunal’s attention”.
In Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 at paragraph 1 the High Court of Australia confirmed that there is no general duty or obligation on the Migration Review Tribunal to enquire.
It was, however, made clear in Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 at [27]. That if a Tribunal fails to make an “obvious enquiry” about a “critical fact” – such a failure may constitute jurisdictional error.
The problem in the present case is that the applicant has not particularised what the “obvious enquiry” may have been. Similarly, the applicant has not particularised any “critical fact”.
In those circumstances, this part of the applicant’s ground one for review fails because no jurisdictional error has been identified.
In summary therefore no jurisdictional error has been identified in any part of ground one of the grounds for review.

Ground Two

As to the submission that the Tribunal acted unreasonably (particularised in ground two of the amended application for review) – one part of the applicant’s argument is that the Tribunal should have considered (and, so the argument goes, placed more weight upon) the fact that the applicant was enrolled in a course for seven months prior to the time of the commencement of the old visa. The Tribunal made it clear to the applicant that it was only looking at the period of the old visa. This was noted in paragraph 28 of the Tribunal’s decision (page 144 of the Court Book) where the Tribunal stated:
“28. The Tribunal explained to the applicant that the Tribunal may have no power to say that he substantially complied with condition 8202 according to the circumstances and information provided by the applicant. It noted that he had continued to study after his visa was refused, and while it is encouraging to see that he did that, it has no relevance to the question before the Tribunal of whether he met the conditions of his last visa as the Tribunal is only looking at the period of his last visa. The Tribunal noted that it would consider the information he has provided and was not making a decision at the hearing however it was unlikely that it would be able to find that he had complied when he has told the tribunal that he was not enrolled for approximately 10 months out of the 15 or so months of his last student visa. The Tribunal said that to fail to be enrolled for such a significant period of the period of the visa would be considered to be a significant breach of the condition.”
There can be no doubt that the relevant period which must be looked at in relation to cl. 527.235 of the Regulations is the period of the old visa (the last substantive visa).
As to the submission relating to unreasonableness – I note the decision of the High Court of Australia in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 where the High Court turned its mind to similar issues. In particular I note paragraph 131 of the decision (per Heydon J who formed part of the majority). His Honour’s noted at that paragraph:
“131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
I have come to the conclusion that there no error has been identified in the process of reasoning by the Tribunal.
Earlier in the same judgment Heydon J noted at paragraph 78:
“78. The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could not be said to reveal an absence of any basis whatsoever for her conclusion.”
Neither the process of reasoning nor the final outcome could be said to be illogical, irrational or unreasonable. The Tribunal, in its decision, stated in clear and unambiguous terms the process of the reasoning and the reason for the final outcome. In particular I point to those paragraphs that have been quoted earlier herein in these reasons for judgment – namely paragraphs 30 through to 43 of the Tribunal’s decision (contained at pages 145, 146 and 147 of the Court Book). In particular I note paragraph 38 of the Tribunal’s decision. That paragraph states:
“38. Enrolment in a registered course specified for the subclass of a student visa is a core requirement of a student visa and is clearly set out in condition 8202. The applicant acknowledged at the hearing that he knew he had to remain enrolled.”
The Tribunal identified that enrolment in a registered course was a “core requirement” of a student visa. That “core requirement” is clearly set out in condition 8202. Not only that – but the Tribunal notes that the “applicant acknowledged at the hearing that he knew that he had to remain enrolled”. In circumstances where there was a failure by the applicant to be enrolled for 10 months out of the 15 month “old visa” – it cannot be said that the ultimate outcome was unreasonable.
Further, in Minister for Immigration & Citizenship v Li [2013] HCA 18 at 88 Gageler J referred to the question of “reasonableness” and noted:
“Reasonableness as a statutory implication
88. Brennan CJ (in Kruger v The Commonwealth (1997) 190 CLR 1) cited Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 234 for the proposition that "when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised"[163]. He explained the application of "Wednesbury unreasonableness" as a court acting on the "implied intention of the legislature that a [statutory] power be exercised reasonably" to hold invalid "a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action"[164].”
For the reasons stated in paragraphs 37 to 41 (inclusive) it cannot be said that the Tribunal’s decision in the present case was “unreasonable” as that term is used and explained by the English Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and by the High Court of Australia in Kruger v Commonwealth (1997) 190 CLR 1.

Conclusion

I have come to the conclusion that the applicant has not been able to identify any jurisdictional error. The application must therefore be dismissed with costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date: 1 May 2015

Corrections

The end certification date was corrected.