Musapeta v Minister for Immigration

[2007] FMCA 729

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MUSAPETA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 729

MIGRATION – MRT decision – refusal of further student visa – substantial compliance with conditions on previous visa – effect of Jayasekara – Tribunal treated non‑compliance with condition 8202(3)(b) as conclusive – no jurisdictional error found – application dismissed.

Education Services for Overseas Students Act 2000 (Cth), s.20
Migration Act 1958 (Cth), ss.116(1)(b), 137L, 474(1), 476, Pt.2 Div.3 Subdiv.GB

Migration Regulations 1994 (Cth), reg.2.43(2)(b), Sch 2 items 573.235, 574.235, Sch.8 items 8202, 8202(3)(b)

Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167
Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCAFC 333
Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96
Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238
Weerasinghe v Minister for Immigration & Multicultural& Indigenous Affairs [2004] FCA 261

Applicant: NAVEEN KUMAR YADAV MUSAPETA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG442 of 2007

Judgment of: Smith FM

Hearing date: 8 May 2007

Delivered at: Sydney

Delivered on: 8 May 2007

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr S Free

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $4,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG442 of 2007

NAVEEN KUMAR YADAV MUSAPETA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 12 February 2007, which has been set down for final hearing today on whether the applicant is entitled to relief by way of judicial review under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Migration Review Tribunal (“the Tribunal”) dated 21 December 2006 and handed down on 8 January 2007. The Tribunal affirmed a decision of a delegate not to grant the applicant a further student visa which he applied for on 15 March 2006, being a Student (Temporary)(Class TU) subclass 573 visa.

2. The Court’s jurisdiction to review the Tribunal’s decision is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1), so that I do not have power to set aside the Tribunal’s decision and remit the matter to the Tribunal unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for the visa which he sought, nor whether he deserves further permissions to stay in Australia.

3. The applicant had been studying in Australia under a number of visas for some years. Immediately prior to the present application, he held a subclass 574 postgraduate research visa. That visa was subject to the conditions contained in item 8202 of Sch 8 to the Migration Regulations 1994 (Cth) (“the Migration Regulations”). This included a condition requiring achievement of a satisfactory level of academic results in courses studied during the currency of the visa:

   8202(3)  A holder meets the requirements of this subclause if:  …

   (b)    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. 

4. To obtain a subsequent visa of the subclass sought by the applicant, he was required to satisfy a time‑of‑decision criterion in Sch 2 item 573.235 of the Migration Regulations:

   573.235If 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. 

5. In the present case, the delegate and on review the Tribunal, addressed the level of compliance by the applicant with the conditions on his previous visa, and in particular with the well‑known student conditions found in item 8202. 

6. The delegate was advised by the University of Southern Queensland in Sydney (“the University”) that the applicant had not achieved satisfactory academic results for any of four terms in which he had enrolled at that institution during 2004 and 2005, in a course for professional accounting qualifications.  The student record showed that he had failed 12 out of the 12 subjects studied in 2005.  It was clear, therefore, that the delegate and on review the Tribunal did not have evidence satisfying the condition in 8202(3)(b), and there was no prospect of his obtaining the requisite certificate from his education provider.  Before the Tribunal, he in effect conceded that his results were not satisfactory.  A finding of breach of that particular condition was inevitable. 

7. The Tribunal addressed whether the applicant could be found to have “complied substantially with the conditions that apply or applied to the last of” his visas, notwithstanding his breach of condition 8202(3)(b).  It noted: “the information before the Tribunal does not suggest that the applicant has not complied substantially with other conditions of the Subclass 574 Postgraduate Research Sector visa”. 

8. However, the Tribunal referred to a recent Full Court judgment in Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167. The Tribunal considered that this established the proposition that it was not able to make a finding favouring the applicant under item 573.235, in circumstances where a breach of condition 8202(3)(b) was found. The Tribunal said:

   Jayasekara, therefore, requires the Tribunal to determine whether an applicant has ‘complied substantially’ with each component of a visa condition – or, at least, the component in dispute.  Preliminary to this enquiry, the Tribunal must determine whether the component is one to which the concept of ‘substantial compliance’ can have logical application, that is, that the condition is of a kind which can either only be fully satisfied or not complied with at all.  Condition 8202(3)(b) is now clearly one which must be fully satisfied, and cannot be subject to ‘substantial compliance’. 

9. In my opinion, this is not an inaccurate summary of the effect of the opinions of the majority in Jayasekara at [14]‑[16]:

   14Turning to condition 8202(3), we note first that counsel accepted that the four paragraphs of the condition are cumulative; there would not be substantial compliance if an applicant satisfied three paragraphs. 

   15The substantial compliance requirement might, as counsel’s argument suggests, be apt in the case of par (c) where the condition is expressed in terms of the decision‑maker being satisfied of a particular percentage of contact hours.  However, in the present case it is not suggested there was any certificate at all.  There was thus no compliance, let alone substantial compliance.  Still less could reasons or explanations for non‑compliance amount to compliance, substantial or otherwise. 

   16There is an obvious policy behind the way the condition is framed.  Questions of academic progress should be left to the judgment of the education provider rather than a Departmental decision‑maker or the Tribunal, who are less well fitted to make such judgments: Khan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 141 at [4].

10. The Tribunal’s reasoning upholding the delegate’s decision that the applicant had not met this visa criterion was brief: 

    The issue in the present case is whether, at the time of this decision, the applicant has ‘complied substantially’ with condition 8202 of his Subclass 574 Postgraduate Research Sector visa. 

    For the following reasons, the Tribunal is not satisfied that the applicant has ‘complied substantially’ with condition 8202(3)(b) of his 574 Postgraduate Research Sector visa. 

    The Tribunal finds that the applicant did not ‘comply substantially’ with the satisfactory academic record requirement of condition 8202(3)(b) because (according to his education provider) he did not pass any of his subjects in the Master of Professional Accounting course in that year whilst holding the Student visa he held at that time. 

    The Tribunal is aware of the decision in Jayasekara which does not allow for failure in a student’s academic record (ie to achieve ‘at least satisfactory’ academic performance) as a possible basis for a contrary finding of ‘substantial compliance’ with condition 8202(3)(b).  The Full Federal Court has insisted that compliance with this subparagraph requires strict compliance – that is – a finding that the student’s academic record is satisfactory.  This is not so in the applicant’s case. 

    Accordingly, the Tribunal finds that the applicant has not ‘complied substantially’ with condition 8202 of his last substantive visa and perforce does not meet clause.574.235 of Schedule 2 to the Regulations. 

11. The applicant’s application to this Court was brought by solicitors on behalf of the applicant, and contains five grounds with argumentative particulars.  The solicitors filed a notice of ceasing to act shortly before today’s hearing, but when doing so filed an “applicant’s submissions” which says:  “the Applicant relies on the pleading contained in the Application dated 12 February 2007, and legal authorities cited therein”.  In fact, the only legal authority cited is Jayasekara, which does not help the applicant. 

12. The applicant attended today, but understandably was not able to elaborate the contentions made in the application, and invited me to consider their merits.  In doing so I have been assisted by written submissions of counsel for the Minister.  Rather than set out the grounds and arguments, I think it would be more helpful for me to address the substance of the grounds, and to explain why I do not consider that they can succeed. 

13. The first ground contends: 

    1.The respondent’s making of the decision was an improper exercise of the power conferred by the Migration Act (‘the Act’) in pursuance of which it was purported to be made;

14. The argument in the particulars is that the Tribunal’s decision was vitiated by reason of the absence of a notice under s.20 of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”) issued by the University of Southern Queensland in relation to the applicant’s failures during 2005. It is argued:

    In the absence of a Section 20 Notice as a certificate issued by the applicant’s former education providers evidencing the applicant’s breach of subcondition 8202(3)(b), the respondents’ finding that the applicant breached subcondition 8202(3)(b) which in effect certified that the applicant did not achieve at least satisfactory academic result, was an exercise of a power not conferred by the Act.

15. The Minister’s submission challenges this contention on two bases. The first is that the evidence suggests that a s.20 notice was in fact served. I have considered the evidence referred to by the Minister’s counsel, but am not persuaded that it clearly indicates that this happened. Certainly, there is no evidence that the Department contemplated a cancellation of that visa pursuant to s.116(1)(b), which is the normal consequence of the service of a s.20 notice.

16. In any event, I accept the Minister’s alternative submission that the service of a s.20 notice was irrelevant to the present Tribunal’s consideration of the applicant’s eligibility for a second visa, and in particular to his satisfaction of the criterion in item 573.235. Even within the context of a s.116(1)(b) cancellation for breach of condition 8202(3)(b), it has been held that the procedure involving a s.20 certificate is irrelevant (see Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] FCAFC 333, and Minister for Immigration & Multicultural & Indigenous Affairs v Zhou [2006] FCAFC 96).

17. The applicant’s contention, that in the absence of a s.20 notice there would not be evidence before the Tribunal which allowed it to not be satisfied in terms of item 573.235, is, in my opinion, misconceived. That criterion contains no requirement as to the evidence which is to be addressed by a decision‑maker when considering compliance with a condition on a previous visa. In the present case, there was evidence from the University which was before the delegate and the Tribunal, which made clear its lack of satisfaction as to the applicant’s academic results. That evidence was not contested by the applicant.

18. Moreover, compliance with the condition as to academic results requires the applicant to present a certificate showing the requisite satisfaction by the education provider, and in the absence of such a certificate a finding of breach is available to a decision‑maker (see Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 at [56]). There was no evidence before the present Tribunal that the University of Southern Queensland had issued the certificate which would establish the applicant’s compliance with condition 8202(3)(b). The Tribunal’s finding that there was a breach of that condition attaching to the applicant’s previous visa was therefore clearly available on the evidence before it.

19. I therefore do not consider that Ground 1 is made out.  

20. Ground 2 of the application provides a variant on the argument presented in Ground 1, by contending that “there is no Section 20 Notice as conclusive evidence certified by the applicant’s former education providers to establish the applicant’s breach of subcondition 8202(3)(b)”. However, that contention is entirely misconceived. It is not the function of a s.20 notice to provide “conclusive evidence” in relation to a decision under the Migration Regulations as to satisfaction of item 573.235. It serves functions under the provisions of the ESOS Act and Subdivision GB of Div.3 of Pt.2 of the Migration Act, but, as the cases I have referred to above establish, that procedure is entirely independent both of a decision to cancel a student visa and, in my opinion, also a decision on whether an applicant qualifies for a subsequent student visa. I therefore do not accept the argument presented by Ground 2.

21. Ground 3 of the application contends: 

    3.Further to Ground 1 or Ground 2, the applicant pleads that the respondents failed to take into account the applicant’s compelling circumstances that adversely affected his academic performance, such failure constituting a breach of the rules of natural justice occurred in the respondent’s findings based on which the decision was made. 

22. There is no doubt that the applicant did present to the Tribunal circumstances seeking to explain his lack of success at the University of Southern Queensland by reference to extenuating circumstances.  However, the Tribunal considered that it was not able to take those into account when deciding whether he could be found to have “complied substantially” with condition 8202(3)(b).  In my opinion, the Tribunal was correct in thinking that it could not take them into account. 

23. The argument presented in the particulars to the application appears to confuse the power of decision‑makers under s.137L and reg.2.43(2)(b), to overlook breach of condition 8202(3)(b) if there are “exceptional circumstances beyond the visa holder’s control”.  However, this consideration is not repeated in the criteria for the new visa currently sought by the applicant, and was not required to be addressed by the Tribunal when applying item 573.235. 

24. In the face of the clear language of the legislation, the applicant’s arguments of “legitimate expectation” to have his extenuating circumstances considered have no room to operate, even if a proper factual basis for them had been established before the Court. 

25. I therefore do not accept Ground 3. 

26. Ground 4 argues: 

    4.Further, or in the alternative to Grounds 1, 2 or 3 above, the applicant pleads that procedures that were required by law to be observed in connection with the making of the decision were not observed by the respondents. 

27. The applicant’s argument is that the Tribunal erred by focusing only upon the applicant’s compliance with condition 8202(3)(b), without also making an assessment of his compliance with other conditions in item 8202, and with other conditions under other items of Sch 8 which attached to his previous visa.

28. As I have indicated above, the Tribunal did note that there was no evidence suggesting non‑compliance substantially with other conditions.  However, it is clear from its reasoning that it was of the opinion that it did not have to address compliance with those other conditions before arriving at an adverse conclusion in relation to item 573.235. 

29. The legal interpretation presented in the applicant’s argument is that that item 573.235 should be construed as requiring a decision‑maker to take a global assessment of the visa applicant’s overall compliance with all conditions attaching to a previous visa, so as to arrive at an overall conclusion about “substantial compliance”.  I have not been presented with an elaboration of this argument, but it has some attraction. 

30. However, I accept the submission of counsel for the Minister that authorities binding upon me are contrary to its acceptance.  I was referred to the judgment of Ryan J on appeal from this Court in Weerasinghe v Minister for Immigration & Multicultural& Indigenous Affairs [2004] FCA 261 at [12]:

    12The same reasoning compels the result that the present application for review must also fail.  Since cl 573.12 of the Regulations requires substantial compliance with all of the conditions cumulatively to which an applicant’s last visa was subject, the conclusion just reached makes it strictly unnecessary to consider a second condition with which the applicant was required to comply.  … 

31. This was said, after Ryan J held that condition 8202 contained a series of conditions, and that compliance with each of those conditions could arise for consideration under an equivalent to item 573.235 in relation to a subsequent visa application.  It was also said after his Honour arrived at the opinion, which was expressly upheld in Jayasekara, that the “academic results” condition in item 8202 did not allow any room for an assessment of anything other than compliance or non‑compliance.  I accept the Minister’s submission it was part of Ryan J’s ratio decidendi that it was not necessary for a decision‑maker applying a “substantial compliance” criterion, to address compliance with other conditions attaching to a previous visa, once an opinion was arrived at that the applicant had not “complied substantially” with any one of the conditions.  In effect, Ryan J construed the “substantial compliance” criterion as requiring substantial compliance with each of the separate conditions attaching to the previous visa. 

32. His Honour’s opinion in that respect was not directly addressed in Jayasekara, but an acceptance of it appears implicit in the paragraphs which I have quoted above from the majority judgment.  In my opinion, therefore, the argument presented in Ground 4 of the application must fail in the face of authority binding upon me. 

33. Ground 5 of the application, in effect, presents the same argument, and must fail for the same reason.  It also presents a contention that the Tribunal “incorrectly followed” Jayasekara because it “deals with the compliance in relation to 8202(3)(b), being one component of one visa condition out of an unknown number of visa conditions on a last held student visa”.  However as I have indicated above, in my opinion Jayasekara does not provide authority which supports the applicant’s present argument.  It was not incorrectly treated by the Tribunal as authority in support of its own approach.  That approach was one which I am bound to uphold by reason of Ryan J’s judgment in Weerasinghe. 

1. For the above reasons I am not persuaded that any of the grounds pleaded in the application succeeds.  In my opinion, the Tribunal’s decision was therefore a privative clause decision, and I am bound to dismiss the present application. 

I certify that the preceding thirty‑four (34) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  21 May 2007