Khan v Minister for Immigration - [2014] FCCA 1935

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAN v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1935

Catchwords:
MIGRATION – Judicial review – non-compliance with criteria for visa – unsatisfactory course progress – finding of non-compliance with criteria for visa is a finding of fact – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.15.03

Migration Act 1958 (Cth), ss.65, 137J(2)(b)

Migration Regulations 1994, Sch.2 cl.572.223, 5A

Cai v Minister for Immigration & Anor [2011] FMCA 922
Chen v Minister for Immigration & Anor [2011] FMCA 177
Hunter Resources Ltd v Melville(1988) 164 CLR 234
Kim v Witton (1995) 59 FCR 258
Luu & Anor v Renevier (1989) 91 ALR 39
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567
Natalia Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Singh v Minister for Immigration & Anor [2011] FMCA 972
SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145
Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275

Applicant:

ABDULLAH MUQARRAB KHAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1226 of 2013

Judgment of:

Judge F. Turner

Hearing date:

6 August 2014

Date of Last Submission:

6 August 2014

Delivered at:

Melbourne

Delivered on:

6 August 2014

REPRESENTATION

The Applicant appeared In Person

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application for judicial review filed 6 August 2013 is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,646.00.
All extant applications are dismissed and the matter is removed from the list of pending cases.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1226 of 2013

ABDULLAH MUQARRAB KHAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

This is an application for judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) dated 18 July 2013. That decision affirmed the decision of a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) visa.
The delegate refused to grant a visa because the applicant did not satisfy cl.572.223 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”) because he did not provide evidence to satisfy the requirements of Schedule 5A to the Regulations.
Although “… the concept of onus of proof is not appropriate to administrative inquiries and decision-making…” (as stated in Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at p.288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in an much detail as is necessary to enable the examiner to establish the relevant facts.
The Court refers to the following decisions:
·Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at p.596:
“… the mere fact that a person claims fear of persecution… (for a particular reason) does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for… (the reason claimed). It remains… for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.”

A decision-maker is not required to make the applicant’s case for him or her: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p.170 and Luu & Anor v Renevier (1989) 91 ALR 39 at p.45.
Quoting from the Tribunal’s decision at [6] to [12]:
(6)At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Regulations. For applicants who apply as a student, the subclass that can be granted in any particular case depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course as explained in r.1.40(2) and (3) of the Regulations, and its specification by the Minister by Gazette Notice made under r.1.40A (see cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2) or, for Subclass 576, its approval by the AusAID Minister or the Defence Minister (see Part 576 of Schedule 2). The relevant subclass in this case is 572 Vocational Education and Training Sector. There is no suggestion that the applicant meets the criteria for any of the other subclasses.
(7)The criteria for the grant of a Subclass 572 visa are set out in Part 572 of Schedule 2 to the Regulations. The issue before the delegate was whether the applicant meets the criteria in cl.572.223, however, the issue before the Tribunal is whether the applicant satisfies cl.572.235. That criterion requires that ‘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’.
(8)Whether the applicant has complied substantially with a visa condition is a question of fact, to be determined having regard to the particular circumstances of the case: Kim v Witton (1995) 59 FCR 258 (at 271), followed in Baidakova v MIMIA [1998] FCA 1436. For example, the circumstances considered by Sackville J to be relevant in Kim v Witton included:
·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 or not the applicant deliberately flouted the condition; and
·if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.
(9)However, there is no rigid test, and those considerations should not be regarded as exhaustive, or elevated to the status of relevant considerations in every case: see Shrestha v MIMA [2001] FCA 1578 and MIMA v Modi (2001) 116 FCR 496.
(10)There are some conditions to which the concept of substantial compliance has no logical application. Either the condition is satisfied or it is not: Jayasekara v MIMA (2006) 156 FCR 199 (Jayasekara). The Court in Jayasekara held by majority that the requirement of a certificate in the academic result component of condition 8202(3), as it stood when considered in that case, was one such condition.
(11)The version of Condition 8202 which applied to the applicant’s last substantive visa states:
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.
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full‑time course of study or training.
(12)Although not in the same form as Condition 8202(3) as considered in Jayasekara, the reasoning of the majority in that case applies equally to Condition 8202(3) as amended, and as applicable in this case: Cai v MIAC [2011] FMCA 922 and Singh v MIAC [2011] FMCA 972. That is, the requirement of an absence of a relevant certification of unsatisfactory course progress or unsatisfactory course attendance by the education provider is one to which the concept of substantial compliance has no logical application. Either it is satisfied or it is not.
Those paragraphs set out the law, and the relevant provisions of the Migration Act 1958 (the “Act”) and Regulations which applied at the time.
The applicant arrived in Australia as the holder of a subclass 572 visa, which ceased on 30 August 2011. He applied for a further 572 visa, which was refused on 1 December 2011 because the applicant did not satisfy cl.572.223 of Schedule 2 to the Regulations (Court Book “CB” p.47.10).
At the time cl.572.223 provided as follows (CB p.47).
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
(2)An applicant meets the requirements of this subclause if:
(a)for an applicant who is not a person designated under regulation 2.07AO:
(i)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and
(ii)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter; and
(iii)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity; or
(b)for an applicant who is a person designated under regulation 2.07AO — the Minister is satisfied that:
(i)the applicant has the financial capacity to undertake the course, without contravening any condition of the visa relating to work, because the applicant has access to sufficient funds of the person’s own or provided by a relative; and
(ii)the applicant’s proficiency in English is appropriate to the proposed course of study; and
(iii)the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter.
The applicant applied for a review by the Tribunal. By letter dated

14 June 2013, the Tribunal advised the applicant that it was unable to make a favourable decision on the information then before it, and invited the applicant to attend the hearing on 18 July 2013 to give evidence and present arguments (CB p.99).
The applicant was invited to provide evidence of enrolment for the purposes of cl.572.222, or evidence that he was the subject of a current offer of enrolment, for the purposes of cl.572.231. He was also asked to provide other evidence as detailed in that invitation to appear (CB p.99).
The applicant appeared before the Tribunal on 18 July 2013 (CB p.204 [19]). The Tribunal told the applicant that it was a “requirement for a student visa that an applicant satisfy cl.572.235 of Schedule 2 to the Regulations”. The Tribunal told the applicant that as he “was certified for unsatisfactory course progress he has not substantially complied with condition 8202(3) of his last student visa”, and that the Tribunal “does not have any discretionary powers in regard to the issue of substantial compliance with condition 8202(3)” (CB p.205.6).
The applicant submits that the certification that he had not achieved course progress was on 11 March 2011, but that he did not apply for a visa until August 2011. The Court advised him that compliance with 8202 was a condition of his previous visa.
The Tribunal explained to the applicant that “as he did not comply with condition 8202(3) of his last student visa, he does not satisfy cl.572.235” (CB p.205 [23]). The Tribunal explained to the applicant that it does not have any discretion in assessing compliance with clause 572.235 (CB p.205.8).
The issue before the Tribunal was whether, at the time of decision, the applicant complied substantially with condition 8202 of his subclass 572 Vocational Education and Training Sector Visa (CB p.205.10).
The Tribunal found that the applicant had not complied substantially with condition 8202 as Ashmark Group Pty Ltd had certified the applicant had not achieved satisfactory course progress (CB p.121) which is required by clause 8202(3)(a) (CB p.206 [28]).
The provisions of 8202 that applied to the applicant’s last substantive visa are set out at CB p.203 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).
(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.
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full‑time course of study or training.
Whether the applicant complied with a visa condition is a question of fact to be determined having regard to the particular circumstances of the case: Kim v Witton (1995) 59 FCR 258 (at p.271) followed in Natalia Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436.
The Court finds no error of law in the Tribunal concluding that the applicant did not comply with condition 8202(3)(a) as the education provider certified that the applicant had not achieved satisfactory course progress (CB p.121). The concept of substantial compliance had no application to condition 8202(3): Cai v Minister for Immigration & Anor [2011] FMCA 922 and Singh v Minister for Immigration & Anor [2011] FMCA 972
The Tribunal found that as the applicant did not comply with condition 8202(3), he did not satisfy clause 572.235 (CB p.205 [23]). The Tribunal found that there was no compliance with condition 8202(3). The Court finds no errors of law by the Tribunal in reaching that conclusion.
The applicant filed written submissions on 22 January 2014. The applicant submitted that his unsatisfactory course progress was due to family problems in Pakistan and that he did not pass all the subjects due to stress. The applicant submits that his unsatisfactory progress was in large measure due to the unsatisfactory teaching provided by the education provider.
The first respondent filed Outline of Submissions on 20 January 2014. The first respondent submits that the applicant has not particularised his grounds of review. The grounds are set out in the application for judicial review as follows:
(1)S.477, Judicial review can be lodged after 35 days after tribunal has been finalise
(2)I am not happy with tribunal decision, applying for judicial review for legitimate decision
(3)Tribunal decision has jurisdictional error which is interupting my education in Australia
Ground 1 asserts “judicial review can be lodged after 35 days after tribunal has been finalise”. The Tribunal’s decision is dated 18 July 2013. The application for judicial review was lodged on 6 August 2013. It was within time. Ground 1 raises no basis for judicial review and is dismissed.
Ground 2 states that the applicant is “not happy with tribunal decision, applying for judicial review for legitimate decision”. That ground is an attempt to review the merits which is not a proper basis for judicial review. It is dismissed.
Ground 3 alleges the judicial error but contains no particulars. The applicant has not established a jurisdictional error. Ground 3 is dismissed.
The first respondent submits that the Tribunal interpreted and applied cl.572.235 correctly. The Court accepts that submission.
The first respondent submits that as the applicant did not satisfy the relevant criteria, s.65 of the Act required the Minister to refuse a visa. That is correct.
The first respondent refers the decision of Dawson J. in Hunter Resources Ltd v Melville(1988) 164 CLR 234, that either there was compliance or there was not. The Court applies that decision and refers to [10] and [12] the Tribunal’s decision (supra). The Court accepts those submissions.
The first respondent submits that the criteria for the grant of a visa did not allow the Tribunal to have regard to whether or not past compliance with condition 8202 was due to exceptional circumstances beyond the applicant’s control and referred to the decision in Chen v Minister for Immigration & Anor [2011] FMCA 177. The Court accepts that submission.
In this matter the Court has heard oral submissions from the applicant. The first respondent consents to the Court making a decision in the matter, pursuant to r.15.03 of the Federal Circuit Court Rules 2001 (the “Rules”), without hearing oral submissions from the first respondent.
At the hearing before the Court, the applicant was self-represented and the first respondent was represented by Ms Bosjnak. The applicant made submissions and commenced by seeking to tender a media release that was not before the Tribunal.
An applicant for judicial review is confined to material put before the Tribunal as referred to in SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 per McKerracher J at [27]:
“An appeal from the Tribunal to the Federal Magistrates Court or an appeal to this Court is limited to review of jurisdictional error. Fresh evidence is not admissible unless it bears on some jurisdictional error. In MZXHY v Minister for Immigration and Citizenship [2007] FCA 622, Nicholson J stated at [8]:
It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 380 determined the question of ‘... whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision’. At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal ‘... are only on questions of law’. His Honour further held at 382 that the Court had no power to receive the fresh evidence: see also at 385. Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos 56 FCR 377 in a migration law framework.”

The applicant pointed out that the letter from Ashmark of non-satisfactory course progress was dated 11 March, but that he only applied for a visa in August 2011. However, as previously stated, the unsatisfactory course attendance related to the previous visa. The Tribunal stated at CB p.202 [7]:
(7)The criteria for the grant of a Subclass 572 visa are set out in Part 572 of Schedule 2 to the Regulations. The issue before the delegate was whether the applicant meets the criteria in cl.572.223, however, the issue before the Tribunal is whether the applicant satisfies cl.572.235. That criterion requires that ‘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’.
The applicant submits to the Court, that Ashmark was not a good course provider and that is why he did not achieve satisfactory course progress. If that is so, it is regrettable, but it is not a matter that shows an error of law by the Tribunal.
The applicant seeks to rely on the letter (at CB p.189) that under s.137J(2)(b) of the Act, his visa would not automatically be cancelled if he attended the department. However, the Court finds that the section does not state that the visa will not be cancelled. Section 137J gives an opportunity to make submissions to explain the breach. The letter states if the applicant did not comply with the criteria to attend and explain, the visa would be automatically cancelled, and that the visa would be cancelled if the Minister was satisfied that the applicant had breached condition 8202.
The applicant attended the department and gave his explanations. The visa was then refused. The applicant submitted that the departmental officer gave him an option of changing his provider and that his visa would then not be cancelled. He said that he changed his provider and applied for an extension. However, the Courts attention has not been drawn to any provision which allows that to occur, or any evidence supporting the contention.
The Court finds that the grounds of judicial review are without merit and are dismissed.
The application for judicial review is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate:

Date: 26 August 2014