RAYAPALLI v Minister for Immigration
[2006] FMCA 24
•24 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAYAPALLI v MINISTER FOR IMMIGRATION | [2006] FMCA 24 |
| MIGRATION − Student visa − whether Tribunal should have obtained certificate from education provider − whether Tribunal breached procedural fairness in not advising applicant to obtain certificate from education provider. |
| Migration Act 1958 |
| Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436 Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 at [55] Gurung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 772 at [14]-[16] Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 26 Gunawardena v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 31 at [25]-[29] Gerhard v Minister for Immigration & Multicultural & Indigenous Affairs [2003] using a 495 at [16] |
| Applicant: | RADHIKA RAYAPALLI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG282 of 2005 |
| Judgment of: | Phipps FM |
| Hearing date: | 11 October 2005 |
| Date of Last Submission: | 11 October 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 24 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Condliffe |
| Solicitors for the Applicant: | Ryan Carlisle Thomas |
| Counsel for the Respondent: | Mr Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs fixed at $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG282 of 2005
| RADHIKA RAYAPALLI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant entered Australia on 19 February 2003 as the holder of a subclass 574 student visa valid until 15 March 2004. She was granted another student visa also valid until 15 March 2004. On 16 March 2004, the applicant applied for another student visa which was refused. The refusal was confirmed by the Migration Review Tribunal.
The Tribunal considered that she did not meet a necessary criterion, which was that she had complied substantially with the conditions to which the last held visa was subject.
The Tribunal considered that the applicant had not complied substantially with the requirement of her previous visa, that she achieve an academic result that was certified by the education provider, Swinburne University of Technology, to be at least satisfactory for each semester of the course.
There are two issues:
a)whether there was a breach of procedural fairness because the Tribunal;
i)did not notify the applicant that she should obtain a certificate of satisfactory academic progress from Swinburne University of Technology; or
ii)did not itself request Swinburne to provide a certificate.
b)whether the Tribunal asked the wrong question, in that it considered the question of substantial compliance itself, whereas, the applicant argues, it should only have considered whether there was a certificate from Swinburne.
History
The applicant entered Australia on 19 February 2003 as the holder of a student visa valid until 15 March 2004. On 24 March 2004, she was granted a further student visa also valid until 15 March 2004. The visa was subject to condition 8202.
In 2003 she enrolled in a Masters of Information Technology Course at Swinburne. In semester 1 of 2003, she was enrolled in four subjects and failed four. In semester 2 of 2003, she was enrolled in four subjects. She failed three and obtained a credit in one.
On 16 March 2004, the applicant applied for a further student visa in order to undertake a Masters of Information Systems at Central Queensland University. On 29 June 2004, a delegate of the Minister refused the application. The applicant applied to the Tribunal for review of the decision on 21 July 2004. In a decision dated 16 February 2005, the Tribunal affirmed that the applicant was not entitled to be granted the visa. The application was filed in the Federal Magistrates Court on 16 March 2005.
The Tribunal's decision
A requirement for the grant of the student visa is that "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" (cl. 574.212 of Schedule 2, Migration Regulations).
The applicant's student visa granted on 24 March 2003 was subject to condition 8202. The holder of a visa is required to meet the requirements of sub-cls(2) and (3). Subclause (3)(b) provides:
(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.
The Tribunal concluded that the applicant had not complied with condition 8202 in semesters 2 & 3 of 2003. The Tribunal then said that strict compliance was not required. Substantial compliance with the condition is sufficient to meet the criteria for the grant of the new visa.
The Tribunal referred to what was said by Katz J. in Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436, that whether a person can be regarded as having "substantially complied" with the condition is not only a quantitative matter but also a qualitative matter. It may concern factors, such as the bona fides of the applicant, so that a person who sought to comply with the condition, but made an innocent error or was thwarted through no fault of his or her own, may be said to have "substantially complied".
The Tribunal referred to the applicant’s statement that the course at Swinburne was too difficult. It was submitted that the applicant had no option other than to enrol in the course, even though it was not the preferred course.
The Tribunal accepted the applicant's evidence that she found the course difficult, but was not persuaded that she made a serious attempt to succeed in her studies. The Tribunal noted in her evidence to the Department, that her efforts were "half-hearted". The results showed only a minimal improvement when she transferred from the Masters programme into the Graduate Diploma at the end of semester 1.
The Tribunal concluded that there had not been substantial compliance with condition 8202, and so the applicant did not satisfy that requirement for the grant of a new visa.
The applicant’s arguments
The applicant's arguments are, to a large extent, bound together.
The argument is that the only way the requirement in condition 8202 can be met, is by certification by the education provider. Therefore, in deciding the question of substantial compliance with condition 8202 itself, for the purpose of the new visa application, the Tribunal applied the wrong test. The procedural fairness argument follows on from this. The argument is, that the Tribunal should have sought a certificate from Swinburne itself, or should have made it clear to the applicant that she needed to apply for a certificate.
Where the question is whether an existing student visa is to be cancelled for failure to comply with the academic progress requirement of condition 8202, the authorities make it clear that the question is whether the education provider has certified that academic progress is at least satisfactory, not whether the Minister or the Tribunal is satisfied that academic progress is at least satisfactory (Tian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 238 at [55]).
There is a difference in the authorities whether the same applies when the question is whether there has been substantial compliance with the requirement of a previous visa as in the present case. Baidakova sees it as something to be decided by the Tribunal. Ryan J. in Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 261 at [10] considers that substantial compliance is something that the education provider is to take into account in deciding whether to provide the certificate.
Other cases make it clear that however the question of substantial compliance is to be decided, there is first of all the need for a certificate, (Gurung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 772 at [14]-[16], Gunawardena v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 31 at [25]-[29].
The Tribunal said that there is no evidence that Swinburne considered the applicant's results in semesters 2 & 3 of 2003 to be at least satisfactory. The Tribunal then went on to consider whether there had been substantial compliance. The Tribunal does not refer specifically to the absence of certification by Swinburne, but logically, if Swinburne does not consider the applicant's results satisfactory, it will not certify that they are at least satisfactory. There is no provision for a certificate of non satisfaction. The Tribunal’s finding can be treated as a finding by it that there is no certificate, and so a finding that addresses the right question.
Even if the Tribunal has not asked the right question, there is no certification by Swinburne and so the condition has not been satisfied.
Therefore, there is only one issue, and that is the procedural fairness question. The Tribunal is not obliged to seek out its own information, (see Gunawardena at [25]), but circumstances may arise where a failure to do so, or a failure to warn an applicant of the need to seek information, may breach the requirements of procedural fairness. This is not one of those cases. The applicant's arguments referred to a letter sent by the Department to the applicant at the time the visa application was under consideration by the Minister's delegate. This asked for academic results but made no reference to obtaining certification that the results were at least satisfactory.
After that, the delegate’s decision contained the statement "The applicant is required to achieve an academic result that is certified by the education provider to be at least satisfactory". The applicant was represented by a migration agent at the hearing before the Tribunal. The invitation to appear before the Tribunal contained a statement that the applicant may request the Tribunal to obtain oral or written evidence from other persons and obtain other written material.
Whatever the position was at the time, the delegate made her decision, by the time of the Tribunal’s hearing, it should have been clear to the applicant that certification by Swinburne was required. There was no need for the Tribunal to give a specific notification to that effect.
The evidence of the applicant's academic results in semester 1 and semester 2 of 2003 was a document from Swinburne which, after setting out the university's name and certain other details, commenced with the words "This is to certify that" and then the name and address of the applicant followed by the transcript of the results. It contained a list of current result categories which included "Not Pass 0%-49%", the category for seven of the applicant's eight subjects. The marks the applicant achieved are 39, 41, 25, 22, 23, 30, 11, and 65, the last one a credit.
The applicant did not put forward a case that she achieved satisfactory academic results at Swinburne. Her case was that the course at Swinburne was the wrong course for her and that she had been misled. Her case was that she considered she would be successful in the course at Central Queensland University. This is not surprising. In Gerhard v Minister for Immigration & Multicultural & Indigenous Affairs [2003] using a 495 at [16], Ryan J. said it would have been perverse, in the circumstance of the case, for the Tribunal to have been satisfied that the education provider had certified that the applicant had achieved a result which was at least satisfactory. The same can be said here. It would be perverse if there was a certificate from Swinburne that the applicant had achieved results which Swinburne considered were at least satisfactory in each seminar.
The short answer to the arguments put forward by the applicant is that there was no certificate from Swinburne, and the evidence showed that Swinburne would not give one.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Sherryn Kwong
Date: 24 January 2006
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