MD Assaduzzaman v Minister for Immigration

[2004] FMCA 484

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MD ASSADUZZAMAN v MINISTER FOR IMMIGRATION [2004] FMCA 484

MIGRATION – Review of decision to affirm decision to cancel Student (Temporary) (Class TU) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 499

Migration Legislation Amendment (Overseas Student) Act 2000, Condition 8202, Item 4 of Sch 4

Migration Regulations 1994 (Cth), Item 1222 of Sch 1, Parts 572 & 573 of Sch 2, cl 8202 of Sch 8

Procedures Advice Manual 3

Migration Series Instructions

Minister for Immigration & Multicultural Affairs v Hayman (1999) FCR 120
Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436

Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578

Minister for Immigration & Multicultural & Indigenous Affairs v Modi [2001] FCA 1656
SAAT v Minister of Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 345
Paul v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1196

Applicant: MD ASSADUZZAMAN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MZ 736 of 2003

Delivered on: 24 September 2004

Delivered at: Sydney

Hearing date: 5 August 2004

Judgment of: Lloyd-Jones FM

REPRESENTATION

Solicitor for the Applicant: Mr Sabelberg

Counsel for the Respondent: Ms Riley

Solicitors for the Respondent: Clayton Utz

ORDER

1. The application is dismissed.

2. The applicant pay the respondent’s costs set in the amount of $6,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 736 of 2003

MD ASSADUZZAMAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. This judgment arises from an application filed by the applicant on 8 July 2003 seeking judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) on 12 June 2003 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a Student (Temporary) (Class TU) subclass 573 visa. 

The history

1. The applicant is a citizen of Bangladesh.  He entered Australia on 2 July 2000 as the holder of a Student (Temporary) (Class TU) (subclass 560) visa, issued on 26 June 2000 and valid until 28 July 2002.  On 18 July 2000 a further Student (Temporary) (Class TU) (subclass 560) visa was issued to the applicant, valid until 28 June 2002.  This was the visa held at the time the applicant applied for a Student (Temporary) (subclass 573) visa on 25 June 2002.  Attached to each visa was condition 8202.  This condition required, summarily, that student visa holders attend for at least 80% of the contact hours scheduled for their course of study and achieve satisfactory results.  Since the date of application the applicant has held a bridging visa granted on the basis of the application for a visa the subject of this review.

2. The applicant was enrolled in a Certificate IV Course in Information Technology at the Northern Melbourne Institute of TAFE (“NMIT”) for semester 2 of 2000 and semester 1 of 2001.  In semester 2 of 2001 the applicant transferred to a Diploma of Information Technology (Network Engineering) Course at Hales Institute. 

The delegate’s decision

1. On 29 July 2002 a delegate of the respondent refused to grant a Student (Temporary) (subclass 573) visa to the applicant.  The delegate considered transcript results received from NMIT, which indicated that the applicant had failed 2 of 17 subjects in 2000 and failed 11 and withdrew 2 out of 15 subjects in 2001.  The delegate also considered transcript results received from Hales Institute for the period from mid 2001 to mid 2002, which indicated that the applicant was not yet competent in 18 subjects and competent in 26 subjects. 

2. A certificate of attendance from Hales Institute stated that the applicant’s attendance for the period 9 July 2001 to 17 June 2002 was 76% and unsatisfactory.  However a letter from Hales Institute dated 1 February 2002 was submitted which stated that the applicant had been granted permission to take leave from his course due to personal reasons from 6 February 2002 until 14 March 2002.  The letter also stated that the applicant’s attendance was satisfactory at above 80%.  The Hales Institute informed the delegate that this approved leave was not factored into the attendance of 76% recorded on the certificate of attendance issued by them. 

3. The delegate found that the applicant provided no evidence for his failures in 2001, and held that he had failed to meet the requirements of Regulation 573.212 because he had not substantially complied with condition 8202 for the period of the last visa held. 

The Tribunal’s decision and reasoning

1. On 14 August 2002 the applicant lodged an application for review of the delegate’s decision with the Tribunal.  Included with the application was a doctor’s report dated 2 February 2002 which stated that the applicant’s mother was receiving treatment for an illness.  The Tribunal conducted the hearing on 3 June 2003 at which the applicant gave evidence.  The applicant was asked why he performed so badly in semester 1 of 2001 to which he responded that he wanted to do network engineering but this was not available at NMIT, and so he transferred to Hales Institute and did not sit for his exams and so failed.  He said NMIT allowed him to transfer. 

2. On 12 June 2003 the Tribunal affirmed the decision of the delegate to cancel the Student (Temporary) (subclass 573) visa, finding specifically that the applicant had breached condition 8202 of the visa last held and consequently was not entitled to a further student visa. 

3. The only subclass in respect of which any claims were advanced was subclass 573.  The applicant was, however, enrolled in a diploma course, which Gazette Notice 42 of 23 October 2002 specifies as requiring a subclass 572 visa.  The Tribunal assessed the applicant against subclass 572 criteria. 

4. At the time of application the period of the applicant’s previous visa covered semester 2 of 2000, semesters 1 and 2 of 2001 and semester 1 of 2002.  In its reasoning the Tribunal had regard to condition 8202 as it appears in item 4 of Schedule 4 to the Migration Legislation Amendment (Overseas Student) Act 2000.  The Tribunal found that the applicant had complied with this condition during semester 2 of 2000, semester 2 of 2001 and semester 1 of 2002. 

5. During semester 1 of 2001 the applicant passed only 2 subjects out of the 15 subjects undertaken.  Attendance records for this semester show that the applicant attended satisfactorily.  The Tribunal found that, given the passing of only 2 subjects, the applicant did not comply with condition 8202 during this semester. 

6. The Tribunal noted that the applicant had provided evidence that his mother was ill in early 2002 and that he had taken leave from his course to return to Bangladesh for about one month in semester 1 of 2002. However the period of unsatisfactory performance was in semester 1 of 2001. 

7. The Tribunal did not accept the applicant’s excuse of wanting to transfer to another course as sufficient justification for his unsatisfactory performance in semester 1 of 2001.  The Tribunal held that where a transfer is negotiated with an institution then a withdrawal from subjects is normally taken. 

8. The Tribunal noted that the applicant since his arrival in 2000, until the end of June 2002, had not completed any course. It further noted at the hearing in June 2003 that the applicant had still not completed any course and had transferred again to another institution. In looking at the results of semester 1 of 2001, the Tribunal did not see other progress which allowed it to find that the applicant had substantially complied with condition 8202. It therefore found that the applicant had not complied with the conditions of the visa last held, and so did not satisfy clause 572.212 of Schedule 2 to the Regulations.

The application for review of the Tribunal’s decision

1. On 8 July 2003 the applicant filed an application in the Federal Magistrates Court of Australia, being MZ 736 of 2003, pursuant to s.39B of the Judiciary Act 1903 (Cth), seeking judicial review of the decision of the Tribunal.

2. The basis for the application for judicial review is asserted by the applicant in the application filed on 8 July 2003 as follows:

   1.The decision of the Tribunal was made without jurisdiction or was affected by error of jurisdiction.

   2.The decision of the Tribunal being affected by jurisdictional error is not a privative clause decision to which section 474 of the Migration Act as amended applies.

   3.The decision of the Tribunal is affected by jurisdictional error in that the Tribunal failed to take account of the relevant material.

   Particulars

   i)The Tribunal misinterpreted and/or misunderstood the criteria that have to be established to grant a student (Temporary) (Class TU) visa.  In that it failed to consider the Applicant’s claims and the evidence in support of these claims.

   ii)It failed to deal with and/or consider the case as presented and/or the claims of the Applicant in that it failed to consider the criteria for the issue of the visa and in particular whether the applicant had failed to comply with condition 8202 of his existing visa and:

   a)Whether the Education Provider had certified that the academic result of the Applicant was not ‘at least satisfactory’ pursuant to condition 8202.  Whether the Applicant had substantially complied with condition 8202.

   b)Failed to consider whether matters set out in condition 8202 applied to the Applicant and whether the evidence before the Tribunal established these matters.

   c)Failed to consider whether the Applicant had not failed to comply with condition 8202.

   4.Further, or alternatively, the Tribunal asked the wrong question, identified the wrong issue and took into account irrelevant material as a consequence of which its decision was made without jurisdiction or affected by error of jurisdiction.

   Particulars

   i)The Applicant refers to and repeats the particulars in Paragraph 3 above.

   5.Further, or alternatively, the Tribunal failed to deal with the integers of the Applicant’s case and in so doing its decision was made without jurisdiction or was affected by error of jurisdiction.

   Particulars

   The Applicant refers to and repeats the particulars in Paragraph 3 above.

3. The respondent filed contentions of fact and law on 16 October 2003.  The applicant filed contentions of fact and law on 6 January 2004 and was assisted by his representative in the preparation thereof. The respondent filed further contentions of fact and law on 4 February 2004.

Legislation and policy

1. The Migration Act 1958 (“the Act”) and various Regulations made under that act, principally the Migration Regulations 1994 (“the Regulations”) provide for different classes of visas and the criteria for granting of visas. Section 499 of the Act provides for written corrections to be issued by the Minister and is set out as Departmental Policy and are contained in Procedures Advice Manual 3 and the Migration Series Instructions.  The legislation, policy and materials that are immediately relevant to this matter are:

   a)Legislation

   i)Item 1222 of Schedule 1 of the Regulations,

   ii)Parts 572 and 573 of Schedule 2 of the Regulations

   iii)Clause 8202 of Schedule 8 of the Regulations

   b)Directions under Section 499 of the Act

   i)Gazette Notice 42 of 23 October 2002 – specification of types of courses for the purposes of Regulation 1.440A

   c)Departmental Policy

   i)Procedural Advice Manual 3:  Generic Guidelines G - Student Visas

   ii)Procedural Advice Manual 3: Schedule 2 - Student - Visa 572 & 573

Submissions

1. Mr Sabelberg, Solicitor for the applicant, submitted that the Tribunal should have taken note of the failure of the delegate to consider the application for a visa under the correct subclass 572 and refer the matter back to the Department of Immigration & Multicultural & Indigenous Affairs rather than substituting a different subclass in its own decision.

2. He further submitted that during semester 2 of 2001 and semester 1 of 2002 the applicant passed twenty six subjects.  The applicant’s statement of results indicates that he was assessed as not yet “competent” in a further eighteen subjects.  In the words of the Tribunal:

   “As the visa applicant had completed 26 subjects out of 44 for diploma is a result that the educational provider would consider satisfactory.  The visa applicant also had an attendance rate of about 80%.”

   Accordingly, the Tribunal finds that the applicant complied with condition 8202 during semester 2 of 2001 and semester 1 of 2002.

3. It is Mr Sabelberg’s submission that the Tribunal should have only considered the last two semester results and attendance and should have made a decision in the applicant’s favour.  If the Tribunal considered semester 1 of 2001 result, it should have taken into account circumstances beyond the control of the applicant and concluded that he had substantially complied with the visa conditions.

4. Miss Riley, Counsel for the respondent, in her oral submissions at the hearing, commenced by taking me to the evidence in respect of the applicant’s incorrect selection on the visa application of a 573 visa.  The Court Book shows that the applicant ticked the box next to subclass 573, which says the higher education section in Item 1 of the visa application form.  In order to qualify for this visa, the applicant was required to undertake a degree course of some description where in fact he was undertaking a diploma course.  It was pointed out that the onset of the problem facing the applicant was that he just was not qualified for the sort of visa that he had applied for and this was conceded by the applicant’s solicitor.

5. What the Tribunal did, during its review process, was to go ahead and look at a 572 visa which, theoretically, the applicant could have been eligible for in that he was doing a diploma course.

6. Although the Tribunal carried out this theoretical analysis on the assumption that the applicant had applied for the correct visa, it did not have the authority to do this.  All the Tribunal could do was look at the type of visa applied for: Minister for Immigration & Multicultural Affairs v Hayman (“Hayman”).  The decision of Finkelstein J is summarised in Headnote 3 which states:

   “The Tribunal does not have the power to consider an original application for a visa or to consider an amendment to such an application.  Its function is to review a decision of a Minister or his delegate or the review officer.”

7. Although this analysis was undertaken, the case was resolved in the passage at the head of their findings [19] which stated:

   “… the visa applicant must be enrolled in a course of study that is of a type that has been gazetted under Regulation 1.40A for subclass 573 visas.”

8. Gazette No. 42 of 23 October 2002 requires that subclass 573 visa applicants are enrolled in a Bachelor Degree, Graduate Certificate, Graduate Degree or Associate Degree.  It is submitted by the respondent that, as the applicant was enrolled in a Diploma course, the applicant by inference could not satisfy the criteria for a 573 visa.

9. In Hayman his Honour Finkelstein J states that it is just not possible for the Tribunal to grant a type of visa that has not been applied for in the initial application.  In that case, the applicant was simply not, on any view of any matters, qualified for the visa for which he had applied and he sought to switch his application to an application for a different visa.  His Honour found that it simply is not possible for the Tribunal to make a decision that would assist an applicant in that situation.  The application is for a particular type of visa.  That is all the delegate can decide and that is all the Tribunal can review.

10. It was submitted that, in effect, that is the end of the matter although the Tribunal had to look as to whether there had been a substantial compliance with condition 8202.  In determining substantial compliance, it is a process of statutory interpretation to determine whether the words of the statute have been complied with.

11. In the unreported matter of Baidakova v Minister for Immigration & Multicultural Affairs the Court sets out certain matters that it considers to be relevant in assessing the question of substantial compliance. However, this is qualified to an extent by His Honour Gray J in Shrestha v Minister for Immigration & Multicultural Affairs (“Shrestha”) at [17] which reads:

    “They do not bear the character of relevant considerations in every case.”

12. They were merely matters that, as a matter of logic, would have been relevant in the circumstances of the case with which his Honour was dealing.  No doubt, in many cases, those considerations or similar ones would be relevant as a matter of logic to determine whether there has been substantial compliance with the conditions of a visa.  That does not mean that in every case there is an obligation of the decision-maker to take into account every one of those factors.  Continuing at [18]:

    “In the circumstances of the present case, it cannot be said that it was necessary for the Tribunal to make a finding as to the applicant’s bona fides or whether the applicant flouted the condition.  …  Whether or not the non-attendance at any course was deliberate, the sheer length of time for which the applicant had been absent from the course was bound to constitute a major factor in the mind of the Tribunal.”

    His Honour’s comments in Shrestha were cited with approval by the Full Court in the Minister for Immigration & Multicultural & Indigenous Affairs v Modi.  At [19] of that case, the Full Court unanimously said that the correct approach was that adopted by Gray J in Shrestha and that is repeated at [22].

13. The respondent challenges the submission on behalf of the applicant that the applicant did substantially comply because he had passed most of the subjects in the semesters that he had studied in, although admittedly failing nearly all of the subjects in one term.  It is submitted that what condition 8202 requires is that the person must meet the requirements of the course in each term and semester of the course.  Consequently, for substantial compliance to apply, there needs to be a substantial compliance in each of those terms and semesters.

14. The question of whether there has been a substantial compliance is a matter of fact and degree and that is a decision that should be made by the Tribunal:  SAAT v Minister of Immigration & Multicultural & Indigenous Affairs at [12]. In that case the matter being considered was whether a certain level of harm amounted to persecution. What the Court said in that case was:

    “There is a question of fact in the degree of whether this did amount to persecution.  This is a question for the Tribunal to resolve.”

15. The respondent submission is that whenever there is a question of substantial compliance, whether the level of compliance gets to a point of being substantial, that is for the Tribunal to decide.  Unless some error of law can be found in the approach that the Tribunal took in determining this question, then jurisdictional error does not arise.

16. The respondent submits that this Court is being requested to revisit the merits of the decision and re-assess this question of substantial compliance, which is not the role of this Court.  The fundamental issue is that the only visa that the applicant applied for was the 573 visa.  It is submitted that he does not qualify for that class of visa and that is clear from the Tribunal’s reason for decision:  Hayman at [28].

“The function of the Tribunal is to review a decision made by either the Minister or his delegate or reviewing officer and it is not to determine an original application.  By acceding to a request to consider a grant of a visa not specified in the original application and not the subject of a determination by original decision-maker, the Tribunal would be exercising the functions of an original decision-maker, a power which it does not have and not the function of a reviewing body.”

1. At [21] it says:

   “Mr Hayman made his application for a concessional family visa on the prescribed form and paid the prescribed fee.  Accordingly, the Minister was obliged to, and did by his delegate, consider that application.  However, Mr Hayman had not made an application for a preferential family visa; that is, he had not lodged an application for such a visa and he had not paid the fee for such an application.  Thus, the Minister could not grant a preferential family visa to Mr Hayman.”

2. Mr Sabelberg submitted that the facts in Hayman should be distinguished from this case because Mr Assaduzzaman was completing Form 157A which contains a list of seven different visa types and on advice he ticked visa 573 and not visa 572 which was described as vocation, education and training sector.

3. As there is no evidence before the Court regarding this issue and was raised after the substantive issues, I do not intend to pursue this issue further.

4. Counsel for the respondent also referred to S134 which was contained in the respondent’s original contentions, which covers the authority in Hayman in a more general context.  The High Court in Re Minister for Immigration & Multicultural & Indigenous Affairs & Anor; Ex parte S134/2002 at [32]:

   “There is no obligation imposed by Section 65(1) to which a state of satisfaction (or otherwise) respecting criteria which the prosecutor did not advance.”

5. Consequently, in the present case, there is no obligation on the Tribunal to consider whether the criteria under subsclass 572 has been satisfied, and no obligation to return the matter to the delegate for consideration of subclass 572.

Conclusion

1. I am satisfied that the Tribunal did deal with all of the integers of the applicant’s case. It dealt with attendance, academic performance, the mother’s ill health and the applicant’s explanation for not sitting his exams in semester 1 of 2001.  The Tribunal clearly understood that the relevant criteria required for substantial compliance with condition 8202 during the currency of the visa held by the applicant.

2. I am satisfied that the Tribunal clearly did consider all the applicant’s claims and evidence.  If a particular item of evidence is not considered it does not automatically establish that there has been a jurisdictional error:  Paul v Minister for Immigration & Multicultural & Indigenous Affairs.

3. I am satisfied that the Tribunal adequately focused on the applicant’s failure to comply with the requirements of condition 8202 and that focus was the primary concern of the Tribunal in its decision making process.  The key requirement of condition 8202(d) is that the education is that the education provider supply a certificate indicating that the visa holder has obtained a satisfactory academic result.  In the absence of a certificate that stipulates that criteria being satisfied, the Tribunal was entitled to find that condition 8202 was not satisfied.

4. The issue of substantial compliance with condition 8202 was expressly dealt with by the Tribunal.  Condition 8202 essentially concerns both attendance and academic performance.  The Tribunal was satisfied that the applicant had satisfactory attendance at relevant times but was not satisfied that the applicant had satisfied academic performance in semester 1 of 2001.  The question that the Tribunal was obliged to ask was whether the applicant had substantially complied with condition 8202.  That question was asked and the answer to that enquiry is set out in detail in the decision.

5. In my view, the respondent’s argument is clearly correct.  The errors relied upon by the applicant did not affect the decision of the Tribunal.  There is no jurisdictional error involved and the application must fail.

6. In the circumstances, I dismiss the application.

7. I am satisfied that an order for costs should be made in the circumstances of this matter.  It is ordered that the applicant pay the Minister’s costs and disbursements of and incidental to the application.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: Menna McMullan

Date:  24 September 2004