More v Minister for Immigration
[2004] FMCA 84
•3 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MORE v MINISTER FOR IMMIGRATION | [2004] FMCA 84 |
| MIGRATION – Student visa – whether applicant reasonably complied with study conditions of previous visa – visa refused – no error shown. |
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994, regs. 572.226, 572.221, schedule 8 condition 8202
Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436
Plaintiff S 157 of 2002 v Commonwealth of Australia 195 ALR 24
| Applicant: | KRISHNAJI MORE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 23 of 2003 |
| Delivered on: | 3 February 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 3 February 2004 |
| Judgment of: | Phipps FM |
REPRESENTATION
| The Applicant appeared on their own behalf |
| Counsel for the Respondent: | Mr C.G. Fairfield |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
That the applicant pay the respondent's costs fixed at $5000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 23 of 2003
| KRISHNAJI MORE |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) to review a decision of the Migration Review Tribunal made on
17 December 2002. The decision of the Tribunal affirmed a decision of the delegate of the respondent that the applicant was not entitled to a temporary student visa class TU subclass 572.
The applicant is a national of India. He entered Australia on 15 July 1999 holding a subclass 560 student visa. He was granted a further subclass 560 visa on 5 June 2001, which was valid until 15 March 2002. That is the last visa that he held other than bridging visas. The bridging visas have been issued as a result of his challenge to the decisions of the delegate of the respondent and the Tribunal.
On 18 February 2002 he applied for a subclass 572 student visa. The application was refused by a delegate on 23 February 2002. It is the decision of the delegate which was the subject of review before the Migration Review Tribunal which I have already referred to.
The consequence of regulations 572.226 and 572.221 of the Migration Regulations 1994 is that to obtain the visa which the applicant applied for on 18 February 2002, the applicant needed to have complied with the conditions to which the visa he held or last held was subject. The last visa he held required him to have substantially complied with the conditions of the class 560 visa which expired on 15 March 2002. Condition 8202 as set out in schedule 8 of the Migration Regulations applies to a sub-class 560 visa. Condition 8202 has been amended. The version, which the Tribunal sets out in paragraph 23 of its reasons, is the version of condition 8202 which had to be complied with. It was attached to the visa which was granted on 5 June 2001, the one which was valid until 15 March 2002.
Subparagraph 4(3)(d) of condition 8202 provides:
“in any case the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
i)for a course that runs for less than a semester – for the course; or
ii)for a course that runs for at least a semester – for each term or semester, whichever is shorter of the course.”
When the applicant first came to Australia he commenced a food technology course. He had difficulty with the language and so switched to an English course. Then relevantly for the last semester of 2001 he enrolled at the Kangan Batman Institute in an auto mechanical course. That was, a single semester course. Consequently condition 8202 required the applicant to achieve an academic result that is certified by the education provider to be at least satisfactory for the course.
There is no dispute that for that course the applicant completed only
35 of the 442 course units. The applicant himself said in a written submission to the Tribunal and in his oral evidence to the Tribunal that he was not suited to this sort of work.
The applicant has appeared for himself and other than the initial application, which gives no particulars of the basis of the application, he has put in no written material and no contentions, notwithstanding that orders were made more than once for that to be done. What he has said to me is that at the time at which he applied for a new visa, that is, on 18 February 2002, he had enrolled in an auto electrical course. The material again from the Kangan Batman Institute shows unsatisfactory progress in that auto electrical course. The applicant says that was because of a misunderstanding which he had. He was the only international student at the particular campus. The attendance book should have been left at the office. He says he now understands that, however, he used to take it home with him and not everything was recorded within the attendance book. He then says that the records do not accurately record the progress which he did make.
What the Tribunal member ultimately decided was that the evidence supplied by the visa applicant and the evidence supplied by the Kangan Batman Institute both confirmed that the visa applicant did not meet the course requirements for the relevant visa period, neither did he appear to satisfy attendance requirements. It then goes on to say:
As recent progress in the period after the relevant visa period does not indicate any improvement in his performance, there are no extenuating circumstances, save for the visa applicant's claim that he is not suited to the work, although he regards himself as hard working.
Regulation 572.212 requires or refers to substantial compliance. The wording is:
The applicant has complied substantially with the requirements to which the visa held or last held was subject.
The Tribunal in its reasons refers to Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436, a decision of Katz J, where His Honour refers to the matters to be taken into account in deciding whether an applicant has substantially complied with the visa condition. The Tribunal's reasons describe them in this way in paragraph 25:
These include the nature and significance of the breach, whether or not the applicant deliberately failed the condition and if the applicant failed to appreciate the breach of condition, what, if anything, had contributed to that failure, including whether the department had misled the applicant.
Subparagraph 3(d)(1) of condition 8202 required certification that for the semester in the second half of 2001, the automotive mechanical course of a satisfactory academic result. It is not certified. It is admitted by the applicant that his academic result was not satisfactory. He was not suited to that course of work. He completed only a minority of the units which were involved in that course.
It is difficult to see how the Tribunal member could have come to any other conclusion than that which was come to; that is, that there had not been substantial compliance with condition 8202 in those circumstances.
The challenge which can be made in a court exercising jurisdiction under s.39B of the Judiciary Act is one that can only look for jurisdictional error (see Plaintiff S 157 of 2002 v Commonwealth of Australia 195 ALR 24). A simple error of fact where a Tribunal has looked at all the evidence cannot possibly be a jurisdictional error. In this case there cannot even be a simple error of fact. As I have said, it is difficult to see how the Tribunal could have come to any other conclusion on the facts than it did. It follows in those circumstances that the application must be dismissed.
An application has been made for costs on behalf of the respondent. The application of the respondent is the successful party. There is no reason why the ordinary rule should not apply. I will allow $5000 for costs.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate:
Date:
0
1
0