Khan v Minister for Immigration

[2003] FMCA 343

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Khan v Minister for Immigration [2003] FMCA 343

MIGRATION: Application for Review of Decision of Refugee Review Tribunal – Whether jurisdictional error in applying wrong form of condition to which visa subject – Whether Tribunal applied policy rather than statutory requirements – Whether discretion to grant relief would be exercised in futility. 

Migration Act 1958

Judiciary Act 1903

Kwan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 498
Kwan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 380
Siddique v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 16
Scargill v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 116
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1
Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Stead v State Government Insurance Commission (1986) 161 CLR 141
Craig v South Australia (1995) 184 CLR 163
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Midland Metals Overseas Ltd v Comptroller –General of Customs (1991) 30 FCR 87
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural & Indigenous Affairsv Kodama [2003] FCA 510
Habib v Minister Immigration & Multicultural & Indigenous Affairs [2002] FCA 1003
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144
NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449
Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436
Kim v Witton (1995) 59 FCR 258
NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228

Applicant: KAMRUL HASSEN KHAN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ449 of 2003

Delivered on: 10 October 2003

Delivered at: Sydney

Hearing Date: 5 August 2003

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Mr D Godwin

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application be dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ449 of 2003

KAMRUL HASSEN KHAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) made on the 12 June 2002 affirming a decision of a delegate of the respondent that the applicant was not entitled to the grant of a Student (Temporary) (Class TU) visa. 

2. The applicant first entered Australia on a student visa on 3 March 1998.  On 25 July 2000 he was granted a further student visa which was valid until 31 August 2001. On 28 August 2001 he applied for a student (temporary) (class TU) visa.  On 25 September 2001 a delegate of the respondent refused the application on the basis that the applicant had not complied substantially with the conditions to which his previous visa was subject, in particular condition 8202 which required, inter alia, that the visa holder be enrolled in a registered course.  On 12^th October 2001 the applicant applied to the Tribunal for review of the delegate’s decision. 

3. On 12 June 2002 the Tribunal handed down a decision affirming the decision under review.  The Tribunal found that the applicant had failed to comply with condition 8202 because he had not been enrolled in a registered course between the end of 2000 and 20 August 2001.  It considered the applicant’s explanation for his failure to be enrolled but concluded that he had not substantially complied with condition 8202. 

4. The criterion which the Tribunal found that the applicant had failed to meet was clause 572.212 (Sub-Class 572-Vocational Education and Training Sector being the only subclass in respect of which any claims were made).  That clause provides:

   “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..”

5. This condition must be met at the time of application for the visa in question: in this case 28 August 2001 at which time the applicant held a sub-class 560 student visa.  That visa was subject to condition 8202 which is the only condition in issue.  The period under consideration by the Tribunal was the duration of the last student visa, that being from 25 July 2000 to the time of application on 28 August 2001.  As at 25 July 2000 the ‘old’ form of condition 8202 (which was contained in Schedule 8 of the Migration Regulations) relevantly stated:

   “The holder must:

   (a) be enrolled in a registered course

6. Apart from the requirement of enrolment, condition 8202 also contained requirements in relation to attendance, performance and payment of fees not relevant in this case. However clause 4 of Schedule 4 of the Migration Legislation Amendment (Overseas Students) Act 2000 applied a ‘new’ condition 8202 to all student visas in effect on 21 December 2000. The new form of condition 8202 imposed more restrictive requirements in relation to attendance and academic results but in relation to enrolment provided:

   “8202(1) The holder (other than the holder of a sub-class 560 (student) visa who is an AusAid student or the holder of a sub-class 576 (AusAid or Defence Sector) visa) must meet the requirements of sub-clauses 2 and 3. 

   (2) a holder meets the requirements of this sub-clause if:

   (a)the holder is enrolled in a registered course; or

   (b)in the case of a holder of a sub-class 560 or 571 (schools sector) visa who is an exchange student – the holder is enrolled in a full-time course of study or training..”

7. The Tribunal applied the decision of Finkelstein J in Kwan v MIMIA [2002] FCA 498 in which His Honour had held that the form of condition 8202 which was statutorily imposed upon student visas on 21 December 2000 only had a prospective effect. On this basis the Tribunal took the view that the applicant was required to comply with the old form of condition 8202 at the time the visa was granted up until 21 December 2000 and with the new form of the condition thereafter.

8. It is conceded by the respondent that the decision of Finkelstein J in Kwon is no longer good law.  Rather it is now accepted that the form of condition 8202 imposed by statute on 21 December 2000 had a retrospective effect in the sense that compliance with it was required throughout the whole term of the relevant visa (see the decision of the Full Court in Kwan v MIMIA [2002] FCAFC 380 and Siddique v MIMIA [2003] FCAFC 16).

9. In an amended application filed in Court the applicant submitted that the Tribunal had failed to exercise its jurisdiction under the Migration Act 1958 in that it failed to consider whether the applicant had substantially complied with the new form of condition 8202 for the whole currency of the visa previously held by him and that it took into account an irrelevant consideration, being whether the applicant had substantially complied with the requirements of condition 8202 in the old form.

10. In relation to the first ground it was submitted by the applicant that because the Tribunal followed Finkelstein J in Kwan it had considered compliance with the new form of condition 8202 only from 21 December 2000 and that to the extent that it failed to consider compliance with the new form of the condition prior to that date it had failed to exercise its jurisdiction.  Further to the extent that the Tribunal had considered whether there was substantial compliance with the old form of condition 8202 it had taken into account an irrelevant consideration. 

11. The applicant referred to Scargill v MIMIA [2003] FCAFC 116 in which the Full Court of the Federal Court concluded that a Tribunal erred, not in formulating an applicable test in relation to a visa criterion, but in applying the test. It held that the Tribunal had failed to consider and apply certain elements of the test applicable to determine where a person ‘usually resides’ in considering whether a visa applicant met the criteria for grant of a visa as a ‘remaining relative’. In so doing it had reached a conclusion that was incapable of supporting the finding which it made and fell into error of law (at [26]). Such failure had the consequence that the Tribunal failed to fulfil the task required of it under s65(1) of the Act. As the Court stated at [31] ‘It failed to decide according to law whether it was satisfied that the criteria prescribed by the Regulations had been satisfied’. Furthermore, the Court concluded that such error was not protected from review by s.474(1) of the Act. In so concluding it engaged in the reconciliation process required to ascertain whether a failure to observe some procedural or other requirement of the Act constituted an error which resulted in a failure to exercise jurisdiction or excess of jurisdiction as referred to in the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 at [76] – [78] and as undertaken by Gaudron and Kirby JJ in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 at [71 – [83]. Despite the fact that Gaudron and Kirby JJ were in the minority in S134, the Full Court in Scargill indicated that the exercise of reconciliation which they undertook was that required by Plaintiff S157 and had application to the case.  (See Scargill at [36] – [38]).

12. In Applicants S134/2002 their Honours had suggested that ‘In light of the detailed specification in the Regulations of the criteria for the grant of various classes of visa, it is impossible to treat the consideration by the decision-maker of the relevant criteria and his or her satisfaction or lack of satisfaction in that regard as other than conditions precedent to a valid decision to grant or refuse a visa under s65(1) of the Act. (at [83]).  In Scargill the Full Court held that the Tribunal’s satisfaction or lack of satisfaction as to whether the applicant was a remaining relative was a condition precedent to a valid decision to grant or refuse a visa under s65(1) of the Act.  It was not merely a procedural requirement.  As the Tribunal fell into error in the consideration of that question there was a constructive failure to exercise the jurisdiction vested in it.  The Court concluded that the case was ‘a plain one where the decision was not made under this Act; thus, it is not a decision protected by s.474(1).’ (at [37]). 

13. The applicant argues that there was, similarly, a constructive failure to complete the exercise of jurisdiction in this case as the Tribunal only considered compliance with the later version of condition 8202 from 21 December 2001 instead of for the whole of the period during which the visa was in effect.  It was suggested that whether or not this failure made any difference to the result of the case was not relevant as the failure to apply the correct criteria to the visa application amounted to a failure of jurisdiction sufficient to provide an entitlement to relief.  The applicant also cited in support of this proposition the decision of the Full Court in MIMIA v Awan [2003] FCAFC 140. That case turned on a finding that a Tribunal failure to comply with s359A of the Migration Act 1958 constituted a reviewable error. However Gray ACJ also considered whether the Tribunal fell into jurisdictional error in its failure to have regard to a range of factors specified in relevant regulations in relation to the determination of an applicable criterion relating to whether the applicant was a genuine applicant for entry and stay as a student. The factors in issue were not themselves criteria that the applicant had to meet to the satisfaction of the Tribunal but rather factors that the Tribunal was obliged to have regard to in reaching a conclusion. The Tribunal had failed to make any finding on or address two of the relevant factors. Gray ACJ concluded that the Tribunal had made an error of law. He stated at [19]:

    ‘It failed to carry out its legal obligation of considering whether Mr Awan met the criterion of a genuine applicant by balancing the various matters to which pars (a) to (d) relate.  Its error certainly affected its decision.  The sole basis on which the Tribunal affirmed the decision of the Minister’s delegate, rejecting Mr Awan’s applicant for a visa, was its finding that he was not a genuine applicant for entry and stay as a student.  Mr Awan was entitled to have this criterion applied, and as a consequence the entire review conducted, according to law.’ 

14. While these views are obiter it was submitted that, similarly, applicant in this case was entitled to have the correct criterion applied and that the Tribunal had asked itself a wrong question or identified a wrong issue and made an error of law of a kind that deprived it of jurisdiction in the sense described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ. Such error was said to be a jurisdictional error in the sense considered by the High Court in Plaintiff S157 and not protected by the privative clause in s.474. 

15. The applicant further submitted that the Court should exercise its discretion to grant relief.  In this respect he relied on the suggestion of Gray ACJ at [26] in Awan that the one factor in that case that would dictate the exercise of the discretion in favour of granting relief (even if it did not constitute grounds for relief in its right) was the failure of the Tribunal to exercise its function by applying the correct criterion. His Honour suggested that if it had fallen to the Full Court to exercise the discretion to grant relief, his view would be ‘that this factor would be overwhelming’ (at [26]). The other two judges in Awan confined their consideration to the question of whether there was a failure to comply with s.359A of the Act in relation to the exercise of discretion. Marshall J suggested that it was beside the point that the breach of s.359A may be said to be technical as the critical consideration was whether the Tribunal failed to comply with a section of the Act with which it was bound to comply in the course of conducting a review (at [58]). In contrast Merkel J applied the approach taken in relation to failure to comply with a requirement of procedural fairness, that is, that relief will be withheld only where the Court concludes that compliance with the requirement ‘could have made no difference’ (see Stead v State Government Insurance Commission (1986) 161 CLR 141) at [106 – [107]).

16. The applicant submitted that the Tribunal had, in effect, applied the wrong test and its exercise of jurisdiction had miscarried.  The Court should not speculate as to whether the Tribunal would have reached the same result had it applied the correct test because the Tribunal failed to comply with a provision of the Act with which it was bound to comply in the course of conducting a review.  It was contended that as the Tribunal had failed to apply the relevant criteria and as s.474 did not preclude review (on the authority of Scargill) the Court should grant the relief sought. 

17. However, I am not satisfied that the Tribunal in this case failed to exercise its jurisdictional or exceeded its jurisdiction in a manner constituting jurisdictional error.  Throughout the entire time that the applicant was subject to condition 8202 the substance of the requirement (in both the ‘old’ and ‘new’ forms) was that the holder be enrolled in a registered course, albeit that the condition was expressed in different terms.  As Counsel for the respondent pointed out, there were significant changes to 8202 in relation to attendance and performance but the requirement that the holder be enrolled in a registered course remained.  Further, that part of the condition was materially identical in both forms.  In a sense, as the respondent suggested, it may be said that the Tribunal ‘got the condition wrong’ but ‘asked the right question’.  In both forms of the condition there was a requirement that the holder be enrolled in a registered course.  That issue was considered by the Tribunal and at no point was this an irrelevant consideration.  It did not take into account an irrelevant consideration or fail to consider a relevant consideration.  Furthermore, it was clear from the Tribunal reasons for decision not only that the applicant was under an obligation to be enrolled in a registered course at all material times but also that he was also aware of this obligation and aware that he was in breach of condition 8202. 

18. In theory a failure to apply the correct law would appear to be of significance and the court would ordinarily be loathe to find an error in that regard of no substance.  However in this case the relevant part of each form of the condition was the same.  The applicant did not comply with either form.  Any error by the Tribunal was merely technical and had no effect (and could have no effect) on the decision.  The decision was not materially affected by the error.  Further, it cannot be said, on a fair reading of the Tribunal decision, that the reference to the wrong form of the condition in any way affected the validity of the reasoning process the Tribunal adopted: see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272] – [291].

19. Support for this approach is to be found in the decision of Jacobsen J (sitting as the Full Court) in Minister for Immigration & Multicultural & Indigenous Affairsv Kodama [2003] FCA 510 in relation to a decision of the Tribunal which incorrectly referred to the paragraph of the definition of ‘spouse’ which applied to married persons rather than the paragraph (which in relevant parts was identical) which applied to persons in a de facto relationship. Federal Magistrate Driver found that the Tribunal had erred in failing to establish a necessary jurisdictional fact. Jacobsen J disagreed. His Honour concluded that the validity of the reasoning process of the Tribunal was not affected because the ‘salient parts’ of the two definitions were identical, in that each required the Minister to be satisfied that the relationship between the parties was genuine and continuing. That was the question the Tribunal addressed. Similarly, in this case, while the Tribunal did not apply the ‘correct’ new form of the condition, it did address the right question that is whether the applicant had complied substantially with the requirement that he be enrolled in a registered course. While the ‘new’ form of condition contained unique elements in relation to attendance and performance, such elements were not in issue before the Tribunal.

20. Furthermore, even if the Tribunal did err, as the substance of the relevant criterion was the same in both forms of the condition the ultimate decision was not materially affected by any error.  I am not satisfied that I should exercise my discretion to grant relief.  As Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [40] ‘Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the Court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that a failure to take it into account could not have materially affected the decision…’ The error in this case was of such an insignificant nature. It could not have affected the decision (see also Midland Metals Overseas Ltd v Comptroller –General of Customs (1991) 30 FCR 87 at [99] – [100] in which it was stated that not every occasion on which an irrelevant consideration is taken into account will justify setting aside a decision – for example if the irrelevant matter was so insignificant that it could not have materially affected the decision). This is not a case where the Tribunal’s application of a particular form of the condition could make any difference to the result (cf Kwan).  It is notable that in Habib v MIMIA [2002] FCA 1003 Finkelstein J not only conceded that he had overlooked the effect of Item 4 of Schedule 4 of the Act which introduced the new form of condition 8202 (at [6]), but also stated (at [25]) that if the Tribunal had considered the wrong form of condition 8202 in error the analysis undertaken and the conclusion reached would be the same as if it had had regard to the other form. Hence, as in this case, even if the Tribunal had erred in considering the application on the basis of the wrong form of condition 8202 ‘there would be no point in remitting the matter for reconsideration, because the result would be the same’ (at [25]). (Also see Merkel J in Awan at [106]). Thus, as in Stead v State Government Insurance Commission (1986) 161 CLR 141 at [145] application of the correct form of the condition ‘could have made no difference’. Merkel J suggested in Awan that he saw no reason for not applying this approach, developed in relation to failure to comply with procedural fairness requirements, to a failure to comply with s.359A(1). While the present context differs and there is no suggestion of a lack of procedural fairness, the test in Stead for the denial of relief would be met in this case.  The grant of relief would be ‘an exercise in futility’ (cf Lobo v MIMIA [2003] FCAFC 168 at [67]). I am satisfied that in all the circumstances of this case I should refuse relief in respect of the application of the wrong form of condition 8202.

1. This conclusion means that it is not necessary to consider the respondent’s submission that relief should be denied because of the applicant’s delay in filing this application and his intervening application to the Minister to substitute a more favourable decision for the decision of the Tribunal under s.349 of the Act.  I observe however that in light of the state of the law in the relevant period (in accordance with the Full Court decision in NAAV v MIMIA [2002] FCAFC 228) I would not have found such submissions persuasive had I otherwise considered relief appropriate. The relevant period after the Tribunal decision was at a time which the law was seen to provide only ver limited grounds for review. At that time the applicant had little prospect of success. Seen in this context his failure to seek immediate judicial review and his application to the Minister should not preclude relief on the basis of ‘post-S157’ law if an error had been established and had I not taken the view that relief should be refused for other reasons. 

2. The other ground relied upon by the applicant was that the Tribunal had constructively failed to exercise its jurisdiction because it failed to assess whether the applicant met the requirements of criterion 572.212 set out above, in that by applying policy guidelines (contained in PAM3) it restricted the operation of ‘substantial compliance’ in criterion 572.212 in relation to substantial compliance as to ‘circumstances which were reasonably beyond the student’s control’.

3. It was submitted that the Tribunal’s conclusion was reached because it decided that the applicant’s failure to enrol was of his own making and not due to factors beyond his control.  It was further submitted that ‘substantial’ compliance within clause 572.212 may be a broader concept than what is beyond the control of the applicant and that by confining the criterion in this fashion the Tribunal had constructively failed to exercise its jurisdiction.  The applicant referred to the decision at first instance in Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144 in which Gyles J considered a similar argument that a Tribunal decision was based on policy guidelines rather than upon a statutory criterion in relation to involvement in the management of a business. His Honour agreed that the policy differed from the criterion in that case (and went beyond it) and concluded that the Tribunal had been diverted by the policy. It was by no means clear that the same decision would have been reached if the decision-maker had concentrated upon the statutory criterion rather than the policy. His Honour concluded that the error was jurisdictional in the sense that it was a constructive failure to exercise jurisdiction because the Tribunal did not address the statutory criteria and that this would lead to prerogative relief absent s.474 of the Act (Craig v South Australia (1995) 184 CLR 163 at [179]). However Gyles J held that (on the basis of NAAV v MIMIA (2002) 193 ALR 449) the effect of s.474 was to preclude relief and that Plaintiff S157/2002v Commonwealth of Australia (2003) 195 ALR 24 did not establish the contrary as it dealt only with an aspect of natural justice or procedural fairness.

4. It was not argued in this case that the court should follow the approach of Gyles J in Lobo in relation to the effect of s.474 but that there was a constructive failure to exercise jurisdiction of the same kind.  Subsequently, the Full Court of the Federal Court held (in Lobov MIMIA [2003] FCAFC 168 ) that there was a jurisdictional error and the decision was not protected by s.474.

5. Of relevance is what the Full Court in Lobo had to say in relation to whether the Tribunal erred.  It was conceded in that case that the departmental policy was narrower than the applicable criterion.  In those circumstances the Full Court found that a failure to satisfy the criteria set out in the policy would not equate to a failure to satisfy the statutory criterion.  As the Tribunal had treated assessment according to the department policy as assessment for the purposes of the statutory criterion ‘it did not address the question which s.65(1) of the Act required it to address’ (at [65]). 

6. It is necessary to consider the Tribunal decision in some detail to determine whether the Tribunal erred in the manner contended by the applicant. Under clause 572.212 of Schedule 2 to the Migration Regulations it was necessary for the Tribunal to be satisfied that the applicant had complied substantially with the conditions to which his last visa (the student visa held from 25 July 2000 to 31 August 2001) was subject.  The relevant condition was condition 8202 and the relevant requirement of that condition was that he be ‘enrolled in a registered course’. 

7. The Tribunal outlined the applicant’s claims.  He had originally enrolled in a Bachelor of Applied Science (Computer Science) at RMIT in 1999 and 2000.  He was not enrolled in any course between the end of 2000 and 20 August 2001.  He enrolled in a Diploma of Information Technology at Swinburne University of Technology starting 20 August 2001.  The new visa application was made on

   
   

   28 August 2001. 

8. In relation to his failure to comply with condition 8202 the applicant claimed that he had experienced personal difficulties in Bangladesh and that he had medical issues.  A delegate of the respondent refused to grant a further student visa to the applicant on the ground that he had failed to comply substantially with condition 8202 in relation to enrolment in a registered course.  On 15 March 2002 the Tribunal asked him to comment on and provide evidence in relation to his family difficulties and medical issues as raised by him with the Department.  The applicant provided information about his academic results at the end of 2001 and in 2002 (he transferred to a course at Deakin University which was due to finish at the end of first semester 2003).  He also provided three statements from his father and a statement dated 15 April 2002 from Dr Alam, a physiotherapist in Bangladesh who had provided a letter dated 27 February 2001 indicating that the applicant suffered from a fever and was under his treatment from 20 to 26 February 2001 and that as the condition of his health was not so good he should rest for a few more days to strengthen his body.  In the later statement Dr Alam had stated that when the applicant visited him in February 2001 he was suffering from ‘fever, diarrhoea etc..’ and against his advice to rest had travelled to Australia because of the expiry of his visa. 

9. In the Tribunal hearing the applicant told the Tribunal about earlier family difficulties which had affected his results (the possible separation of his parents) that finally resolved when he returned home for a visit at the end of 2000 and beginning of 2001.  He had attended a physiotherapist in Bangladesh rather than a medical practitioner because the phsyiotherapist (Dr Alam) was known to the family.  He offered no other explanation as to why he did not see a medical practitioner about his fever and diarrhoea in January/February 2001.  He claimed that he cancelled his return flight a number of times because of his ill health.  He finally returned to Australia on 25 February 2001.  He claimed that he was too ill to enrol at the University upon his return and that when he tried to enrol in mid-March he was not permitted to do so as classes had been going for a couple of weeks and his previous results had been poor.  He claimed to have made inquiries at other institutions but that he was told it was too late to enrol.  He did not advise RMIT by phone or in writing that he was too ill to go in to the University in person to enrol.  Nor did he send someone else to attend to his enrolment or to provide medical certificates.  He did not advise the Department of his situation.  There was no evidence that he sought medical advice on his return to Australia.  He claimed that he was not able to enrol in any course until second semester 2001.  He said that he had not completed all the courses in which he was enrolled in second semester 2001 but that Swinburne did not accept his medical certificate or grant him special consideration.

10. He acknowledged that in his visa application of 28 August 2001 he had stated that he had not had an illness lasting more than 2 weeks, but claimed that he had tried to ignore his illness and its seriousness.  The applicant also provided a letter from RMIT University dated 11 June 2002 which stated that he had been advised to seek admission to another program because of his academic difficulties and that it was understood by the University that as he was seeking admission to another University he did not re-enrol in 2000 (RMIT re-enrolment being in December 2000).  In February 2001 he had sought to re-enrol at RMIT but was not permitted to ‘due to having missed the final date for enrolment’. 

11. In its consideration of whether the applicant complied substantially with condition 8202 the Tribunal set out matters to be taken into account assessing ‘substantial compliance’ in accordance with the decisions of the Federal Court in Baidakova v MIMA [1998] FCA 1436 and Kim v Witton (1995) 59 FCR 258. Such authorities require the Tribunal to consider the relevant circumstances of the case, including the nature and significance of the breach, whether the applicant deliberately flouted the condition, and if the applicant failed to appreciate that he was in breach what contributed to that failure. The Tribunal then quoted from policy guidelines (PAM 3) in force during the period of the previous visa. It is not clear whether such quoted guidelines relate to applications for visas or to cancellation of visas as the extract commences by stating ‘If a student does not maintain studies during the academic year their visa may be subject to cancellation’. It suggests that students who fall ill or need to leave Australia for compassionate reasons during semester should notify the Department and submit evidence of a genuine reason for the inability to study. It also refers to matters which should be taken into account (although it is not clear whether these are matters to be taken into account in relation to enrolment in a registered course or unsatisfactory attendance or performance). Such matters include whether the circumstances were reasonably beyond the student’s control and whether the student was able to provide evidence in support of those circumstances.

12. Having set out such law and policy the Tribunal then stated that:

    ‘In deciding if the visa applicant has complied substantially with the condition the Tribunal therefore looks at the reasons for the student’s apparent non-compliance.  A serious illness may provide an appropriate reason.  In the present case, the medical evidence presented is of a ‘fever and diarrhoea’; diagnosed by a physiotherapist who gives no reasons for the symptoms, and of stress.  The stress suffered by the applicant was due to family problems which were sorted out, on his evidence, in January/February 2001.  The visa applicant sought help in the nature of advisers (sic) at RMIT during 1999/2000.  The Tribunal accepts that the visa applicant was suffering fever and diarrhoea in January/February 2001 but that he did not seek the advice of a medical practitioner in Bangladesh nor medical advice about them upon his return to Australia’. 

13. The Tribunal went on to find that the visa applicant was not enrolled in a registered course between the end of 2000 and 20 August 2001.  It stated that if he was unwell there were a number of alternatives open to him which he did not attempt, including contact the University and providing them with medical evidence.  The Tribunal did not accept that it was the University’s unwillingness to enrol him that caused his difficulties.  It referred to the letter of 11 June 2002 from RMIT indicating that the applicant had missed the final date for re-enrolment  and was therefore not permitted to re-enrol.  The Tribunal found that it was the applicant’s inaction that led him to be late and not enrol and not attempt to make alternative arrangements for re-enrolment.  The fact that he may have been looking at other courses was not the reason for RMIT’s rejection of his enrolment.  ‘It rejected his enrolment because he missed the final date for re-enrolment’.  The Tribunal also found that the documents on file indicated that the visa applicant was aware of the urgency involved as he travelled from Bangladesh whilst he had still not recovered from illness and against advice because time was running out and he wanted to be in Australia for the semester.  The Tribunal concluded at paragraph [43] ‘On the basis of the factors outlined above, in the Tribunal’s view, the circumstances of the visa applicant’s failure to enrol were of his own making and not due to factors beyond his control’.  It went on to say at [44]: ‘Under those circumstances it cannot be said that the applicant has substantially complied with condition 8202.’ 

14. I am not persuaded that the use of the word ‘cannot’ in paragraph [44] of the reasons for decision indicates that the Tribunal felt constrained by policy to conclude that there was no substantial compliance.  Such an approach would fall into the error referred to in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The Tribunal conclusion followed a number of paragraphs in which ‘relevant considerations’ (as well as policy) were outlined. Contrary to the applicant’s submission it is not ‘clear’ from the last sentence of the immediately preceding paragraph [43] that the Tribunal conclusion in [44] was based only on the issue canvassed in that sentence. Reading the Tribunal’s decision fairly and as a whole I am not satisfied that the Tribunal applied a narrower test than that in Baidakova and Kim v Witton. While the Tribunal does quote from policy and take into account whether the circumstances were beyond the student’s control this does not mean that it ignored the factors in Baidakova which apply in relation to any visa condition.  As required by that case the Tribunal considered the ‘relevant circumstances’ of the case bearing in mind the nature of the breach of condition in question.  The circumstances submitted by the applicant related to his medical condition, stress, the need to return to Bangladesh and a claim that the RMIT was unwilling to re-enrol him.  The Tribunal considered the inclusive factors in Baidakova in so far as relevant on the evidence before it in relation to the particular type of failure to comply with a condition to which the visa was subject.  The applicant had not suggested that he was unaware of the condition or that he failed to appreciate that he was in breach of the condition.  Hence, it was not necessary for the Tribunal to address this factor.  He did not put forward as explanation for his failure to be enrolled in a registered course matters other than those matters considered by the Tribunal.  The Tribunal addressed the issues put forward by the applicant.  The nature and significance of the breach was largely self evident in the case of non-enrolment but in any event the Tribunal referred to the length of time that the applicant was not enrolled.  While the Tribunal did not make express findings as to whether the applicant deliberately flouted the condition, it concluded that the failure to re-enrol was of the applicant’s own making and because of his inaction.  It was clear that the applicant was aware of the breach (he had said that he did not advise the Department as he was ‘too scared’) and hence there was no need to consider the circumstances that would be relevant if the applicant had failed to appreciate that he was in breach.  In those circumstances I am satisfied that the Tribunal considered the relevant circumstances of the case as required by Baidakova. 

15. The Tribunal did not limit its consideration of substantial compliance to the question of whether the circumstances were beyond the control of the student.  It did not treat assessment according to policy as assessment for the purposes of condition 8201 (cf Lobo).  Nor was its decision confined to the matters raised by the policy guidelines.  It expressly referred to relevant Federal Court authorities on the ambit and meaning of substantial compliance and it took into account the factors raised by the applicant in considering the relevant circumstances of the case.  The reference to policy in this case is not inappropriate.  The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy and the suggestion that a particular factor raised in policy was a relevant factor in a particular case (here whether or not the circumstances were reasonably beyond the student’s control) was not inconsistent with the matters set out in Baidakova and Kim v Witton as it formed part of the relevant circumstances of this case.  No jurisdictional error is established.  Accordingly the application must be dismissed. 

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  10 October 2003