Patil v Minister for Immigration

[2014] FCCA 329

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATIL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 329

Catchwords:

MIGRATION – Judicial review – failure to substantially comply with condition of last held visa – construction of condition 8202 – certification by education provider that applicant had not achieved satisfactory course attendance – extraneous circumstances effecting absence from course – whether certification conclusive of not having complied substantially with a visa condition.

Legislation:

Education Services for Overseas Students Act 2000 ss.19, 20.
Migration Regulations 1994 (Cth) sch.2, cl. 572.235. Sch.8 con.8202

Cases cited:
Cai v Minister for Immigration and Citizenship [2011] FMCA 922
Jayasekara & the Minister for Immigration and Indigenous Affairs [2006] 156 FCR 199
Minister for Immigration & Multicultural Affairs v Yusuf [1999] FCA 1681
Singh v Minister for Immigration and Citizenship [2011] FMCA 972

First Applicant: VINITABEN PATIL

Second Applicant: MITESHKUMAR PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 690 of 2012

Judgment of: Judge O'Dwyer

Hearing date: 14 December 2012

Date of Last Submission: 14 December 2012

Delivered at: Melbourne

Delivered on: 28 February 2014

REPRESENTATION

Counsel for the Applicants: Mr Fernandez

Solicitors for the Applicants: Maganty Lawyers

Counsel for the Respondents: Ms Burchell

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.

2. The application for review filed on 8 June 2012 is dismissed.

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT MELBOURNE

MLG 690 of 2012

VINITABEN PATIL

First Applicant

MITESHKUMAR PATEL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter is an application to review the decision of the Migration Review Tribunal (“The Tribunal”) dated 15 May 2012.  The Tribunal’s decision affirmed the decision of the delegate of the First Respondent (“the Minister”)  not to grant the First Applicant a Student (Temporary) (Class TU) visa (“the Visa”). 

Background

1. The first Applicant is a 25 year old citizen of India who arrived in Australia on 18 August 2006 as a holder of a subclass 572 visa, valid until 15 March 2010. The second Applicant is the husband of the first Applicant and his immigration status is dependant on his wife’s.  For the purposes of this judgment, the first Applicant will be referred to as “the Applicant.”

2. On 15 September 2006, the Applicant was granted a further subclass 572 visa that was valid until 15 March 2010. This visa was the subject of Condition 8202. The visa was granted to enable the Applicant to study a Diploma of Community Welfare Work at Cambridge International College (“CIC”) from 21 April 2008 to 2 April 2010. 

3. On 25 November 2009, the Applicant’s education provider, CIC certified that the Applicant did not achieve satisfactory course attendance pursuant to Section 19 of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”); and Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 for the course, Diploma of Community Welfare Work. On the same day, the education provider forwarded to the Applicant a notice pursuant to s.20 of the ESOS Act.

4. The Applicant applied for a subclass 572 visa on 14 March 2010 to complete her studies at CIC from 19 April 2010 to 18 June 2010. Under Clause 572.235 in schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) the Applicant needed to have complied with the conditions of her previous visa the 572 visa). On 28 April 2010 the Minister’s delegate refused the 572 visa. In reaching that decision, the delegate concluded that the Applicant had not complied substantially with Condition 8202(3) of her previous subclass 572 visa. Subclause 8202(3)(b)(ii) required her not to have been certified by the education provider “as not achieving satisfactory course attendance”.

5. The Applicant lodged an application for review of this decision, but on 15 May 2012 the Tribunal concluded that the Applicant had not complied substantially with the condition of her last held visa as required and therefore did not meet the criterion as set out in clause 572.235 of the Regulations. The Tribunal accordingly affirmed the decision of the Minister’s delegate not to grant the 572 visa.

6. The requirement that appears in Regulation 572. 235 which is relevant  to a determination of this review states:

   If the application is made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive Visa is held by the applicant, and to any subsequent bridging visa. (Emphasis added)

The Tribunal’s decision

1. Pivotal to the Tribunal’s decision was the proper interpretation of the expression “substantial compliance” as use in cl,5782.235.

2. The Tribunal said at [10]:

   “There are some conditions to which the concept of substantial compliance has no logical application.  Either the condition is satisfied or it is not:  Jayasekara v MIMA (2006) 156 FCR 199 (Jayasekara).  The Court in Jayasekara held by majority that the requirement of a certificate in the academic result component of condition 8202(3), as it stood when considered in that case, was one such condition.”

3. The Tribunal referred to the delegate’s decision that the Applicant did not satisfy clause 572.235 because she had not substantially complied with condition 8202. After having set out the terms of the applicable condition, at [13], the Tribunal stated that:

   “Although not in the same form as condition 8202(3) as considered in Jayasekara, the reasoning of the majority in that case applies equally to Condition 8202(3) as amended, and as applicable in this case:  Cai v MIAC [2011] FMCA 922 and Singh v MIAC [2011] FMCA 972.  That is, the requirement of an absence of a relevant certification of unsatisfactory course progress or unsatisfactory course attendance by the education provider is one to which the concept of substantial compliance has no logical application.  Either it is satisfied or it is not.”

4. The Tribunal’s essential finding  is at [51]-[52]:

   “51.  The Tribunal therefore finds that the first named Applicant's education provider has certified the Applicant as not achieving satisfactory course progress for the purposes of Condition 8202(3)(b).  As noted above, this aspect of Condition 8202 is one to which the concept of substantial compliance has no logical application.  Either the condition is satisfied or it is not.  As there is a relevant certificate before the Tribunal from the education provider for the purposes of Condition 8202(3) the Tribunal finds there is no compliance with Condition 8202(3), let alone substantial compliance. 

   52.  Accordingly, the Tribunal finds that the first named Applicant has not complied substantially with the conditions of her last held substantive visa.”

Grounds of review

1. The Applicant’s grounds of review are:

1)    The Tribunal erred by relying on the decision in Jayasekara report in 150 FCR page 199 for the condition 8202 framed at that time was entirely different from the condition as sought to be relied on by the Tribunal.

2) The Tribunal erred in failing to consider whether or not there was a breach of the relevant conditions imposed by 8202 in that whether there was a breach of section 19 of the ESOS Act and Standard 11 of the National Code of practise for registration authorities and providers of education and training to overseas students.

3)    The Tribunal in saying that the Applicants had not satisfied clause 572.235 erred in not considering whether or not there has been substantial compliance or not and therefore erred in not considering the compelling and compassionate circumstances as required under the regulations. 

4)    In view of the erroneous view that the Tribunal took in this matter it deprived the Applicant of natural justice by its failure to ask of the Applicant relevant questions re Minister for Immigration & Multicultural Affairs v Yusuf [1999] FCA 1681. 

Contentions & Consideration

1. The submissions made on behalf of the Applicant by her Counsel were at times confused and seemed to merge all the grounds.

2. The concluding submission by the Applicant’s Counsel was that I should look at the “cumulative” effect of all the points taken by the Applicant as justifying the orders sought in the application. I was left with the impression that the Applicant argued that when consideration is given to the alleged error in ground 1, the alleged failures in grounds 2 and 3, and the failure to provide natural justice as alleged, (although conceding  the Minister may have some merit to his submissions) and further when the circumstances that prevented attendance at the course together with her satisfactory course program, I was to weigh the “cumulative” effect of the Applicant’s criticisms and conclude that the Applicant’s case is better than the Minister’s.

3. One was left with the impression I was to apply the now well-known legal principle articulated in a Court scene from a well-known Australian film.

4. Be that as it may, I shall address each of the grounds as best as possible, but in doing so, my comments have application across a number of grounds than the one being considered.

Ground 1

1. The Applicant contends in respect of the first ground that the reference made by the Tribunal to Jayasekara v MIMA (2006) 156 FCR 199[1] shows the Tribunal to be in error as that case touched upon a different regulation to the one under consideration in this case.

   [1] Jayasekera v MIMA (2006) 156 FCR 199

2. In response, the Minister simply contends that the Tribunal Member, clearly identified and understood the difference in the condition pertinent to this review, and that which was under consideration in Jayasekara. However, a fair reading of the Tribunal’s  decision shows that it did  not seek to impose a wrong condition upon the Applicant. The Minister supports the Tribunal’s use of Jayasekara, as it is the logic applied in that case that is relevant to this case. It is the reasoning and logic, it was contended, that has direct and relevant application in this case. Simply put,  Jayasekara  stood for the proposition that there is an illogicality in attempting to argue substantial compliance where there is certification by the education provider that there was not satisfactory course attendance.

3. There have been other cases where the logical argument in Jayasekera has been advanced and accepted. [2]

   [2] See Cai v Minister for Immigration [2011] FMCA 922; Singh v Minister for Immigration [2011] FMCA 972

4. I am satisfied there is no merit in this ground and that the Tribunal has not erred in the use of Jayasekera.

5. This ground is unsustainable

Ground 2

1. The Applicant contended the Tribunal should have gone behind the certificate to test, in effect, the validity of the certificate and also consider the reasons for the Applicant’s poor attendance.  In addition, once the Applicant’s satisfactory course progress was considered the Tribunal could and should have concluded that the Applicant, in a global sense, had substantially complied with the conditions of the visa.

2. It is trite law that it is not for the Tribunal to put the Applicant’s case and should there have been an issue as to the validity of the education provider’s certificate, it was for the Applicant to argue such before the Tribunal. In any event, the Applicant appears to have exhausted her review process about the certification unsuccessfully before the education provider and under the National Code.

3. The Minister emphasised that condition 8202(3) provides that an Applicant for a visa will not be successful so long as   “neither” a certificate as to not achieving satisfactory course progress or satisfactory course attendance applies. The provision simply provides that the making of one or the other certification is sufficient to preclude the Applicant from a further visa. The provision was not a cumulative requirement that both certificates needed to be issued; that it was an either/or situation and the issuing of one certificate in respect of not achieving satisfactory course attendance was sufficient to invalidate the new visa application. This ground is not sustainable.

Ground 3

1. This again was a ground that sought to impose upon the Tribunal an obligation to evaluate the Applicant’s general circumstances and conclude that “substantial compliance” had been met. It ignores the reality, in my view, of the certification under regulation 8202 (3) (b) (ii) is sufficient to invalidate an application for a further visa and the logic of Jayasekara has application. I am satisfied that the reasoning and logic adopted in Jayasekera has application in this case.  The suggestion by the Applicant that the Tribunal did not consider the issue of substantial compliance, is on a reading of the Tribunal’s decision, manifestly untenable. The Tribunal has not erred in its consideration under this ground.

2. This ground is not sustainable

Ground 4

1. Again, this ground sought to impose upon the Tribunal an obligation to provide procedural fairness, which it was said, required the Tribunal to articulate its reliance on Jayasekara. It was encumbent on the Tribunal to actually state the as said at the hearing, the case name to the Applicant.

2. The Minister highlights, in response, that the Tribunal, whilst not providing the Applicant with the actual name of the case, nonetheless articulated the force of the logic applied. The Applicant, in my view, was fully informed of the nature of the logic applied in Jayasekara and how it would have application in the review before it. The Applicant did not avail herself of the opportunity to respond to the Tribunal’s proposition that a certificate under Regulation 8202(b)(ii) led to an inevitable conclusion that the Applicant had not substantially complied with the conditions of her 572 visa.

3. Like the others, this ground is not sustainable.

Conclusion

1. For the above reasons none of the stated grounds disclosed an error on the part of the Tribunal, let alone a jurisdictional error. Accordingly the application for review filed on a June 2012 should be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge O’Dwyer

Associate: 

Date: 28 February 2014