Sikander v Minister for Immigration

[2016] FCCA 465

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIKANDER v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 465

Catchwords:

MIGRATION – Application to review decision of Migration Review Tribunal – whether the Tribunal failed to comply with s.359A of the Migration Act 1958 (Cth).

Legislation:

Migration Act 1958 (Cth), ss.359A, 359C

Migration Regulations 1994 (Cth), cls.572.231, 572.235

Kaur v Minister for Immigration and Border Protection & Anor [2014] FCCA 2845
Khan v Minister for Immigration and Citizenship (2011) 276 ALR 1; [2011] FCAFC 21
Kim v Witton (1995) 59 FCR 258
Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZLJC v Minister for Immigration and Citizenship [2008] FCA 1361
SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505; [2010] FCA 297

Applicant: MUHAMMAD ALI SIKANDER

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1926 of 2013

Judgment of: Judge Barnes

Hearing date: 18 March 2015

Delivered at: Sydney

Delivered on: 10 March 2016

REPRESENTATION

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”. 

2. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1926 of 2013

MUHAMMAD ALI SIKANDER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) dated 24 July 2013 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa. 

2. The Applicant, a citizen of Pakistan, came to Australia on 19 July 2010 as the holder of a Subclass 572 student visa granted on 29 June 2010 to undertake a Diploma of Accounting course which commenced in July 2010.  That visa was to expire on 3 August 2011.  He applied for a further Subclass 572 student visa on 23 July 2011.  He provided Certificates of Enrolment for a Certificate IV in Business Administration to start on 4 October 2011 and a Diploma of Business Administration to start on 23 April 2011. 

3. One of the applicable criteria for the grant of a Subclass 572 visa was the time of decision requirement in cl.572.235 in Schedule 2 to the Migration Regulations 1994 (Cth) (the Migration Regulations) that:

   If 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.

4. The last substantive visa held by the Applicant was the Subclass 572 visa granted on 29 June 2010.  After he lodged the application for a further student visa he held bridging visas. 

5. Information before the delegate showed that the Applicant’s enrolment in the Diploma of Accounting course was cancelled on 5 October 2010 and there was no evidence of subsequent enrolment until the Certificate IV course to start in October 2011. On 19 January 2012 the delegate found that because the Applicant had failed to comply with Condition 8516 (to which his last substantive visa was subject) he did not satisfy the criterion in cl.572.235 for the grant of a further student visa.

6. Condition 8516 in Schedule 8 to the Migration Regulations required that:

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. 

7. The delegate stated:

   The applicant lodged a student visa application on 23/07/2011 which included CoE’s to indicate he would be commencing Certificate IV and Diploma of Business Administration courses on 04/10/2011.  Evidence before the department shows that the applicant had been reported by the education provider for ceasing his previous course, Diploma of Accounting, on 05/10/2010.  Therefore a period of 12 months had elapsed between courses.

   On 18/08/2011 the applicant was sent an email requesting him to provide amongst other things evidence of attendance certificates and results for this period.  The applicant subsequently submitted documents in relation to his application and included a medical certificate issued by an offshore doctor on 05/08/2011 relating to the death of the applicant’s grandfather in December 2010.  No other information has been provided which could show he was undertaking an acceptable course of study or provide an explanation as to his activities during the period in question as he remained on shore.

   As a result I have considered the applicant’s response for the gap between courses and am not satisfied that there were compelling and compassionate circumstances reasonably beyond his control which prevented him from maintaining enrolment in an acceptable course of study.  Therefore, I find that the applicant failed to comply with condition 8516 of his previous visa and does not meet Regulation 572.235 (emphasis added).

8. While the delegate referred to the issue of “maintaining enrolment in an acceptable course of study” he did not specify which criterion for the grant of the visa the Applicant would not have satisfied while his student visa was in effect.

Tribunal Review

1. The Applicant sought review by the Tribunal.  He provided a copy of the delegate’s decision and notification letter of 19 January 2012 to the Tribunal. 

2. By letter of 12 June 2013 the Tribunal invited the Applicant to provide certain information in writing by 10 July 2013.  He was advised that if the Tribunal did not receive the information within the period allowed (or as extended) the Tribunal may make a decision on the review without taking any further action to obtain the information and that the Applicant would lose any entitlement he might otherwise have had under the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal to give evidence and present arguments.

3. The information sought by the Tribunal included evidence of the Applicant’s past enrolment and his academic achievement in courses of study in Australia, as well as evidence that he was enrolled in or the subject of a current offer of enrolment in a registered course. The Tribunal also asked the Applicant to account for any periods in which he had not been studying in Australia during the period of his last held student visa, for evidence of any study undertaken since the refusal of his student visa application and for financial information. 

4. It is apparent that there was no response to this letter.  The Tribunal proceeded to make its decision of 24 July 2013 without taking further action to obtain the information or to invite the Applicant to a hearing.

Tribunal decision

1. In its reasons for decision the Tribunal referred to the fact that the delegate had refused to grant the visa on the basis that the Applicant did not satisfy cl.572.235 because he had not complied substantially with Condition 8516 to which his earlier Subclass 572 visa was subject.

2. The Tribunal found that having regard to the type of course of study proposed by the Applicant, the relevant subclass of student visa was Subclass 572 and that there was no suggestion that he met the criteria for any of the other subclasses of student visa. 

3. The Tribunal stated that the issue was whether the Applicant met the criterion in cl.572.235 for a Subclass 572 visa. It considered whether the Applicant had complied substantially with the conditions that applied to his last held student visa, but did not identify which condition or conditions were in issue.

4. After discussing the meaning of the concept of “substantial compliance” with visa conditions, the Tribunal stated that it had before it the Departmental file and had had regard to material referred to in the delegate’s decision and other material available to it from a range of sources.  The Tribunal referred to the fact that the delegate had noted that there was evidence that indicated that the Applicant had ceased a course (a Diploma of Accounting) on 5 October 2010 and that there was a period of 12 months “between courses”.  It observed that in response to a departmental request for evidence of the Applicant’s attendance and results and in relation to gaps in his study and his failure to maintain enrolment in registered courses, the Applicant had submitted documents that included a medical certificate of 5 August 2011 relating to the death of his grandfather in December 2010, but that no other information had been provided addressing his “failure to maintain enrolment in a registered course of study”.

5. In its findings and reasons the Tribunal recorded that the Applicant had been granted the Subclass 572 visa on 29 June 2010 and had arrived in Australia on 19 July 2010.  It stated (at [16]) that:

   Reference to the Departmental education for overseas students database indicates that the applicant enrolled in a Diploma of Accounting from 12 July 2010 however the certificate of enrolment was cancelled because the applicant notified of the cessation of studies.  The applicant then has completed a Certificate IV in Business Administration between 4 October 2011 and 6 April 2012.  The Applicant then enrolled in a Diploma of Business Administration however the certificate of enrolment was cancelled because the applicant notified of the cessation of studies.  The applicant then enrolled in a Bachelor of Commerce due to commence on 16 July 2012 and due for completion in June of 2015.

6. The Tribunal continued:

   The issue before the Tribunal is whether or not the applicant has substantially complied with the conditions attached to his last held substantive visa, a subclass 572 visa.  Reference to the evidence before the Tribunal indicates that between the cessation of a diploma of Accounting course on 5 October 2010 and the applicant’s advice to the Department at the time of making the application for the visa the subject of this review, that he would be commencing a certificate IV and diploma of Business Administration on 4 October 2011, indicates that there was a substantial gap in the applicant’s study and a failure by the applicant to maintain enrolment in a registered course of study.  Apart from reference to a death certificate for the applicant’s grandfather issued on 5 August 2011 (sic) with regard to the applicant’s grandfather’s death in December 2010, there is no evidence that has been provided to the Department or indeed the Tribunal at review as to why the applicant failed to substantially comply with conditions attached to his last held substantive visa, requiring him to maintain enrolment in a registered course of study whilst the holder of that visa.  The Departmental education database indicates that the Applicant is currently enrolled in a registered course of study but the Applicant has provided no evidence as to the progress of this course or as has been noted, no evidence with regard to his failure to comply substantially with conditions for his last held visa (errors in original).

7. The Tribunal found that it could not be satisfied on the evidence before it that the Applicant had not “deliberately flouted visa conditions”. It concluded that the evidence led it to find that the Applicant had not complied substantially with the “conditions” of his last held substantive visa “on the basis that he failed to maintain enrolment in a registered course of study whilst the holder of a subclass 572 visa”. Again, it did not specify the particular condition or conditions with which the Applicant had failed to comply substantially. It concluded that it was not satisfied that the Applicant met the requirements of cl.572.235 in Schedule 2 to the Migration Regulations. The Tribunal affirmed the decision not to grant the Applicant a student visa.

Section 359A issue

1. The Applicant sought review by application filed in this Court on 19 August 2013.  There is one ground in the application.  It is that the Tribunal “erred by failing to comply with s 359A” of the Migration Act. The particulars to this ground are as follows:

   The Tribunal relied on information concerning the Applicant’s studies which was provided to it by the Department of Immigration and other sources other than the Applicant.  As it considered this information to be part of the reason for affirming the decision under review, and the information was not exempt under s 359A(4) or provided to the applicant under s 359AA, the Tribunal was required to follow the procedures set out in s 359A(1) and (2).  It failed to do so.

2. The Application did not otherwise particularise the “information” referred to in this ground.

3. Section 359A of the Act is, relevantly, as follows:

   (1) Subject to subsections (2) and (3), the Tribunal must:

   (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c) invite the applicant to comment on or respond to it.

   (2) The information and invitation must be given to the applicant:

   (a) except where paragraph (b) applies--by one of the methods specified in section 379A; or

   (b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

   …

   (4)     This section does not apply to information:

   (a)     that is not specifically about the Applicant or another   person and is just about a class of persons of which   the Applicant or other person is a member; or

   (b)     that the Applicant gave for the purpose of the    application for review; or

   (ba)   that the Applicant gave during the process that led to   the decision that is under review, other than such   information that was provided orally by the Applicant   to the Department; or

   (c) that is non-disclosable information.

4. In oral submissions the Applicant contended that, with one exception, all the information referred to in paragraph [16] of the Tribunal decision (set out at [17] above) from the departmental education for overseas students database (“the database”) ought to have been put to him under s.359A(1) of the Act. It was conceded that the information that the Applicant had enrolled in a Bachelor of Commerce course which commenced on 16 July 2012 and was due for completion in June 2015 did not have to be put to him by the Tribunal under s.359A(1) of the Act.

5. However, the Applicant submitted that the other information from the database (that his enrolment in a Diploma of Accounting course from 12 July 2010 was cancelled because he notified of the cessation of studies; that he had completed a Certificate IV in Business Administration between 4 October 2011 and April 2012; and that while he subsequently enrolled in a Diploma of Business Administration the certificate of enrolment was cancelled because he notified of the cessation of studies) related to his enrolment history and the cancellation of his enrolments and was central to the Tribunal’s decision and hence that it “would be the reason, or a part of the reason, for affirming the decision that is under review” within s.359A(1) of the Act.  This information was said to contain in its terms “a rejection, denial or undermining” of the Applicant’s claims to meet the criteria for a Subclass 572 student visa in the sense considered by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [17].

6. In SZBYR their Honours had made the point (at [17]) that “the reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place”. The Applicant submitted that information that would reject, deny or undermine his claim to satisfy the substantial compliance criterion in cl.572.235 of Schedule 2 to the Migration Regulations would be part of the reason for affirming the decision under review and hence had to be put to him under s.359A(1) of the Act.

7. The Applicant acknowledged that while the Tribunal found that it was not satisfied that he met the requirements of cl.572.235, it did not identify the condition or conditions that applied to the last substantive visa held by him (or to any subsequent bridging visa) with which he had failed to comply substantially. However it was submitted that given the Tribunal’s reference to conditions attached to the Applicant’s last substantive visa “requiring him to maintain enrolment in a registered course of study whilst the holder of that visa”, it was apparent that the Tribunal was considering the issue of substantial compliance with Condition 8202 which, relevantly, applied to Subclass 572 visas (see cl.572.611(a)) at the time the Applicant’s Subclass 572 visa was granted in June 2010. Condition 8202 (set out at [54] below) relevantly required a visa holder to be “enrolled in a registered course”.

8. The Applicant submitted that the information referred to in paragraph [16] of the Tribunal’s decision was relevant to whether he was enrolled in a registered course throughout the period of his last held Subclass 572 visa and hence was relevant to the issue of whether he had “complied substantially” with Condition 8202 as required by cl.572.235 in Schedule 2 to the Migration Regulations. On this basis it was said to constitute information that would be the reason or part of the reason for affirming the decision under review.

9. It was also submitted that while there was no suggestion that Condition 8202 applied to any bridging visa held by the Applicant after his last held student visa had ceased, nonetheless the information about events while the Applicant held a bridging visa (in particular the fact that he had a second certificate of enrolment cancelled) was relevant to the issue of whether there had been “substantial compliance” overall with the conditions to which his last substantive visa was subject.  What occurred while the Applicant held bridging visas was said to be relevant generally to the substantiality of his non-compliance as part of all the circumstances of the case (see Kim v Witton (1995) 59 FCR 258 at [270]) and of particular relevance to whether the Applicant had deliberately flouted his visa conditions.

10. The Applicant acknowledged that if (as the delegate had found) Condition 8516 was in issue, the only issue for the Tribunal in determining whether he had complied substantially with the requirement in Condition 8516 that he “continue” to be a person who would satisfy the criteria for the grant of the visa would have related to the period of the Applicant’s last substantive visa. Both parties proceeded on the basis that the relevant criterion in this context would be the requirement in cl.572.231 in Schedule 2 to the Migration Regulations that the Applicant be enrolled in or the subject of a current offer of enrolment in a course of study that was a principal course of a type specified by the Minister. However it was submitted that even if that were the case, the information about the cancellation of the Diploma of Accounting enrolment on 5 October 2010 because the Applicant had notified of the cessation of studies related to the period the Applicant held a Subclass 572 visa (to which Condition 8516 applied). Hence it was contended that this information would be of relevance to the issue of whether there had been substantial compliance with Condition 8516 in combination with the criterion in cl.572.231.

1. The Applicant also submitted that the exceptions in s.359A(4) were not applicable in this case. It was contended that the information relied on by the Tribunal was specifically about the Applicant, that it was not information that the Applicant gave for the purpose of the application for review or during the process that led to the decision under review and that it was not non-disclosable information.

2. It was acknowledged that the Applicant gave a copy of the delegate’s decision record to the Tribunal and that in Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 Sundberg J held that a copy of a delegate’s decision attached to an application for review was information the Applicant “gave to the Tribunal for the purpose of the application” within s.359A(4)(b) of the Act and also that information in a file note before the Tribunal was the same information as that contained in the delegate’s decision “though somewhat amplified” and that it was “not itself a reason or a separate issue” (at [26]). 

3. However the Applicant submitted that the information said to enliven the s.359A(1) obligation in this case was not information in the delegate’s decision.  It was acknowledged that the delegate had referred to the fact that “evidence before the department shows that the Applicant had been reported by the education provider for ceasing his previous course, Diploma of Accounting, on 05/10/2010”, but submitted that the Tribunal had referred to other information, being information on the “departmental education for overseas students database” indicating that the Applicant’s enrolment in the two diploma courses was cancelled because “Student Notifies Cessation of Studies”.  The Applicant submitted that this was not the same information as the information in the delegate’s decision record because it related to the fact that he notified of the cessation of studies and that this led to certificates of enrolment being cancelled (as distinct from the education provider reporting the Applicant “for ceasing” his Diploma of Accounting course) and also because it came from a different source. 

4. It was submitted that it was clear from the Tribunal’s decision that the information in question had not been obtained from the delegate’s decision, but rather from the departmental database and that the information in question could not be separated from its source.  It was contended that the Tribunal’s obligation under s.359A(1) of the Act was to put to the Applicant particulars of the information that the departmental education for overseas student database indicated that his certificates of enrolment were cancelled because he notified of the cessation of his studies.  Insofar as the view was taken in Chamnam You that a file note contained the same information as that contained in the delegate’s decision, this was said to be distinguishable on the basis that it was clear that the source of the information in question in this case was the database, not the delegate’s decision.

5. The Applicant pointed out that the information about cancellation of his enrolment in a Diploma of Business Administration in May 2012 had post-dated the delegate’s decision and was not referred to in that decision so was clearly not information that was given to the Tribunal by the Applicant providing it with a copy of the delegate’s decision.

6. The First Respondent submitted primarily that although the Tribunal did not specify the visa condition with which the Applicant had failed to comply substantially, given the Tribunal’s reference to the delegate’s reliance on non-compliance with Condition 8516, it should be assumed that the basis for the Tribunal’s decision was the Applicant’s failure to comply substantially with Condition 8516, not his failure to comply substantially with Condition 8202 (albeit it was not disputed that both Conditions 8202 and 8516 applied to the Applicant’s last held substantive visa).  In any event it was submitted that the relevant period of time for the purposes of the Tribunal decision was the period of time the Applicant held his last substantive visa. 

7. In support of the proposition that Condition 8516 was in issue, it was contended that, based on the Tribunal’s reference to the Applicant’s failure to “maintain enrolment” (which was also the expression used by the delegate), it could be inferred that the Tribunal was referring to the time of decision criterion in cl.572.231 in Schedule 2 to the Migration Regulations which applied to his last held student visa and required him to be “enrolled in, or … the subject of a current offer of enrolment in a course of study” that was “a principal course” and “of a type specified for Subclass 572 visas by the Minister in a Gazette Notice” made under reg.1.40A and in force at the time that the application was made. 

8. On this basis, the First Respondent submitted that the Tribunal had addressed whether the Applicant had complied substantially with the requirement in Condition 8516 that he “continue to be a person who would satisfy” cl.572.231 which was one of the primary criteria for the grant of the student visa the Applicant held between 29 June 2010 and July or August 2011. It was pointed out that the only condition referred to by the Tribunal in its statement of reasons was Condition 8516, although it was acknowledged that this reference appeared in the Tribunal’s summary of the delegate’s decision and not in the findings and reasons part of the Tribunal’s decision. The First Respondent conceded that it would have been preferable if the Tribunal had been more specific about the condition being considered, but submitted that it should be concluded that the Tribunal was considering the same condition as the delegate.

9. Contrary to the Applicant’s contention that the concept of “failed to maintain enrolment in a registered course of study” referred to Condition 8202, the First Respondent submitted that this remark reflected the requirements for the grant of a student visa and the fact that courses of study had to be registered. It was submitted that the criterion in cl.572.231 also made it clear that the course of study had to be a course of the type that was specified in a Gazette Notice and could not just be any course conducted by any education provider.

10. In any event, the First Respondent submitted that it was apparent that in its reasons for decision the Tribunal was concerned only with the issue of whether the Applicant had substantially complied with the conditions attached to his last substantive visa, being the Subclass 572 visa (as it had stated in paragraph [17] of its reasons for decision and reiterated in its conclusion in paragraph [18]), and not with whether he had complied substantially with the conditions on any subsequent bridging visa. While it was conceded that it would have been open to the Tribunal to have regard to conditions that applied to the Applicant’s bridging visas (as well as or instead of the conditions applicable to his last substantive visa), it was contended that for the purposes of cl.572.235 the Tribunal was not required to address substantial compliance with conditions applicable to a bridging visa in circumstances where it had considered and found that the Applicant had failed to comply with the conditions applicable to his last substantive visa. This was said to be relevant to the identification of information that was the reason or part of the reason for affirming the decision under review.

11. In particular, the First Respondent submitted that the only relevant information was that while the Applicant held a Subclass 572 visa he had ceased to be enrolled in a course on 5 October 2010 and did not recommence enrolment in a course until after that visa expired.  It was submitted that information that related to events after the Applicant’s last held student visa had ceased (such as information about the Diploma of Business Administration course) was not information that would be the reason or part of the reason for affirming the decision under review, as what was in issue was the period during which the Applicant held the student visa. 

12. There was also said to be no suggestion that the Tribunal had reasoned that what the Applicant had done after his student visa expired informed its view of what had occurred during the relevant period.  Rather, the reason for affirming the decision was the unexplained fact of non-enrolment from 5 October 2010 until a date (4 October 2011) which was after the Applicant’s student visa ceased. 

13. It was submitted that the information from the material before the Tribunal consisting of PRISMS or departmental records and movement records that would constitute information that would be the reason or part of the reason for affirming the decision under review was the information that the Applicant was previously the holder of a visa (as he indicated in his visa application of 23 July 2011) subject to Condition 8516 and that he ceased studies on 5 October 2010 and did not recommence studies until 4 October 2011.  The First Respondent submitted that the additional background factual information referred to in paragraph [16] of the Tribunal decision did not enliven the obligation under s.359A(1) of the Act. 

14. It was pointed out that the information about the Applicant’s cessation of studies between October 2010 and October 2011 was included in the delegate’s decision of 19 January 2012 which was provided to the Tribunal by the Applicant at the time he lodged his review application.  The delegate’s decision referred to evidence before the Department showing that the Applicant had ceased his Diploma of Accounting course on 5 October 2010 and his student visa application included certificates of enrolment to indicate he would be commencing further study on 4 October 2011 (which, as the delegate had pointed out, meant that a period of 12 months had elapsed between courses). 

15. It was submitted that while the “enrolment” information about the Diploma of Accounting course was within s.359A(1) it came within the exception in s.359A(4)(b) of the Act, being information that the Applicant gave for the purposes of the application for review in the sense considered by Sundberg J in Chamnam You and  that hence the obligation under s.359A(1) of the Act did not apply. 

16. It was also contended that the content of a condition such as Condition 8516 did not enliven the s.359A(1) obligation because it was information that was not specifically about the Applicant and hence was within the s.359A(4)(a) exception.

17. The First Respondent also submitted that as s.359A created obligations with respect to “information”, not documents (see SZLJC v Minister for Immigration and Citizenship [2008] FCA 1361 at [24]), the Tribunal was not required under s.359A to put the source of such information (whether PRISMS or particular departmental records or movement details) to an Applicant, but only the particulars of the “information” within such records which it considered would be the reason or part of the reason for affirming the decision under review. 

18. The First Respondent disputed the Applicant’s contention that because the Tribunal referred to the departmental database (rather than to the delegate’s decision) it had obtained the “information” from a different source and had to put both the information and its source to the Applicant.  Such a contention was said to be akin to an argument that had been rejected by Judge Nicholls in Kaur v Minister for Immigration [2014] FCCA 2845. In Kaur the Tribunal had considered information in the delegate’s decision record about advice from Trades Recognition Australia that the applicant’s skills assessment had been revoked.  The Tribunal also obtained confirmation of that information.  Judge Nicholls rejected the contention that the “confirmation” the Tribunal obtained was of itself information for the purposes of s.359A(1) (which would not be caught by the exception in s.359A(4)(b) of the Act) finding that the confirmation information was no more than and no different to that which was derived from the delegate’s decision (Kaur at [37]-[38]). His Honour held (at [38]) in the circumstances of Kaur that the fact that the relevant information came to the Tribunal from two sources did not alter the fact that it was the same information.  The First Respondent submitted that the same approach should be taken in this case.

19. Insofar as the solicitor for the Applicant had submitted that events which occurred after the Applicant’s previous student visa ceased were relevant as potentially informing the Tribunal’s finding that the Applicant had deliberately flouted his visa conditions, the First Respondent pointed out that the conditions in issue applied only to the last held student visa, that the Tribunal had not engaged in such reasoning and there was no suggestion that the Tribunal had reasoned that what the Applicant had done more recently informed its view of what had occurred during the relevant period (being the period during which he held his last substantive visa).  Rather, it had found that it could not be satisfied, based on the evidence before it, that the Applicant had not deliberately flouted the visa conditions that applied to his last substantive visa.  The Tribunal was said to have relied upon the substantial gap in the Applicant’s study and the fact that it remained unexplained in finding that the Applicant had not substantially complied with the conditions of his last substantive visa. 

Consideration

1. What is in issue is whether the information referred to in paragraph 16 of the Tribunal’s decision (set out at [17] above) amounted to “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” such as to enliven the obligation under s.359A(1)(a) of the Act and, if so, whether any of the exceptions in s.359A(4) applied.

2. As stated in SZBYR at [17] (albeit in relation to s.424A(1), the equivalent to s.359A in relation to the Refugee Review Tribunal), “the reason for affirming the decision that is under review is a matter that depends upon the criteria of the making of that decision in the first place.”  In that context their Honours considered whether the asserted information contained in its terms “a rejection, denial or undermining” of the Applicant’s claims to satisfy applicable criteria. 

3. The criterion in cl.572.235 that the Tribunal found the Applicant failed to meet was a requirement that he “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” (emphasis added).  It is not in dispute that the Applicant’s last held student visa was subject to both Condition 8202 and Condition 8516. 

4. The last substantive visa held by the Applicant was the Subclass 572 visa granted on 29 June 2010 to cease on 3 August 2011. It appears that it ceased on or about 23 July 2011 when the Applicant lodged his visa application. Thereafter he held a bridging visa (either a Bridging visa A or a Bridging visa B). A failure to comply substantially with either the conditions applicable to the last substantive visa or with those applicable to any bridging visa held by the Applicant would mean that cl.572.235 was not satisfied. However there is no evidence or suggestion of any issue of non-compliance with conditions applicable to the bridging visas. It was open to the delegate and to the Tribunal to confine their consideration to non-compliance with conditions applicable to the Applicant’s last substantive visa in this context. Moreover there is no suggestion that any of the bridging visas held by the Applicant was subject to any condition in relation to maintaining enrolment in any course of study.

5. While the Tribunal’s decision provides a convenient starting point in considering whether the obligation under s.359A arose, as pointed out in Khan v Minister for Immigration and Citizenship (2011) 276 ALR 1; [2011] FCAFC 21 at [45] per Buchanan J, “it is not sufficient, in order to exclude it, merely to point to the reasoning disclosed in the decision after the review has been conducted and completed”.  Nonetheless the approach taken in a Tribunal decision may support the drawing of an inference as to information the Tribunal considered would be the reason or part of the reason for affirming the decision under review. 

6. There was a disagreement between the parties as to whether the Tribunal was considering whether the Applicant complied substantially with Condition 8516 or Condition 8202.  I note however that in its findings the Tribunal referred generally to the issue of whether the Applicant had complied substantially with “the conditions” to which his last held substantive visa was subject.  Relevantly, Condition 8202 was as follows:

   (1) The holder (other than the holder of a Subclass 560 (Student) visa who is a Foreign Affairs student or the holder of a Subclass 576 (Foreign Affairs or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

   (2) A holder meets the requirements of this subclause if:

   (a) the holder is enrolled in a registered course; or

   (b) in the case of a holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student--the holder is enrolled in a full-time course of study or training.

   … (emphasis added)

7. Condition 8516 provided:

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

   This condition cannot be considered in isolation. 

8. The only visa criterion said to be relevant in relation to Condition 8516 was the time of decision criteria in cl.572.231 which applied to the Subclass 572 student visa held by the Applicant. It provided:

   The applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is:

   (a) a principal course; and

   (b) of a type that was specified for Subclass 572 visas by the Minister in a Gazette Notice:

   (i) made under regulation 1.40A; and

   (ii) in force at the time the application was made.

9. Under Condition 8202 what was in issue was whether (while his student visa was in force) the Applicant was enrolled in a registered course.  The expression “registered course” is defined in regulation 1.03 of the Migration Regulations to mean “a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students”. The note to this definition records that a list of registered courses appears in the Commonwealth Register of Institutions and Courses for Overseas Students kept under s.10 of the Education Services for Overseas Students Act 2000. 

10. Condition 8516 (in conjunction with the criterion in cl.572.231 in Schedule 2 to the Migration Regulations) required that throughout the period the Applicant held his student visa he was enrolled in or the subject of a current offer of enrolment in a course of study that was a principal course of a type specified for Subclass 572 visas in a Gazette Notice made under reg.1.40A and in force at the time of the visa application.

11. As explained in cl.572.111, “course of study” means a full-time registered course of study.  In addition the course of study must be a “principal course” (as to which see reg.1.40(2) and reg.1.40A which is referred to in cl.572.231). Thus to satisfy cl.572.231 a course must be a registered course which is also a principal course.

12. Insofar as it is relevant to have regard to the Tribunal reasons it is apparent that the Tribunal saw the issue as whether the Applicant had complied substantially with conditions that required him to maintain enrolment in a registered course of study whilst the holder of that visa. The Tribunal did not address the issue of whether the Applicant was the subject of a current offer of enrolment while his student visa was in force or whether any course met the requirements of cl.572.231. This would support the view that it was primarily addressing Condition 8202 and the Applicant’s failure to be enrolled in a registered course of study throughout the period of his last substantive visa, although its finding in that respect would also be relevant to the cl.572.231 criterion in conjunction with Condition 8516.

1. In any event, as the application of s.359A is to be determined in advance and independently of the Tribunal reasons (SZBYR at [17]) and as both conditions applied to the last held student visa it is appropriate to have regard to both conditions in considering whether s.359A(1) was enlivened. It is notable however that a failure to comply substantially with either Condition 8202 or Condition 8516 would have meant that the Applicant did not meet the visa criterion in cl.572.235 in Schedule 2 to the Migration Regulations.

2. It is not in dispute that what was referred to in the Tribunal reasons for decision as the “departmental education for overseas students database” refers to the screenshot appearing on p.57 of the Court Book, the source of which is unidentified, but which is headed “Student’s/CoEs”.  Included in the material on p.57 is what appears to be a list of certificates of enrolment in relation to the Applicant including, relevantly:

   Diploma of Accounting…12/07/2010  03/06/2011…Cancelled

   
   

   05/10/2010   Variation Reason: Student Notifies Cessation of Studies

3. According to the Tribunal, this database recorded the fact that the Applicant’s certificate of enrolment in the Diploma of Accounting was “cancelled” because the Applicant notified of the cessation of studies.  However in making relevant findings the Tribunal referred only to the fact that “the evidence before it indicated the cessation” of the Diploma of Accounting course on 5 October 2010.  This would include the evidence before the Department referred to in the delegate’s decision that indicated (as did the database) that the Applicant had “ceased” the Diploma of Accounting on 5 October 2010.

4. The database screenshot also recorded that a Certificate IV in Business Administration course between 4 October 2011 and 6 April 2012 was “finished” but that a Certificate of Enrolment in a Diploma of Business Administration course from 23 April 2012 to 23 April 2013 was “cancelled” on May 2012.  Again there was a notation of a “variation reason” that the “Student Notified Cessation of Studies”. In addition the screenshot included a reference to a Certificate of Enrolment for a Bachelor of Commerce due to commence on 16 July 2012 to be completed in June of 2015. There is no suggestion that the Applicant’s enrolment in a Bachelor of Commerce enlivened s.359A.

5. The Applicant contended that the screenshot information about the cancellation of each of his certificates of enrolment, the reason for each variation of enrolment and the fact that the source of the information was the departmental database had to be put to him for comment under s.359A(1) of the Act. 

6. First, insofar as any contention that the Applicant’s completion of a Certificate IV in Business Administration between October 2011 and April 2012 had to be put to him under s.359A(1) was maintained, it cannot be said that information about undertaking and completing a course after expiration of the Applicant’s last held substantive visa in its terms contained a rejection, denial or undermining of the Applicant’s claims to meet (or to have complied substantially with) the conditions applicable to his last substantive visa (including either Condition 8202 or Condition 8516 in relation to the criterion in cl.572.231 in Schedule 2 to the Migration Regulations).

7. That leaves for consideration the information about the Diploma of Accounting course which commenced in July 2010 and the Diploma of Business Administration course which commenced in April 2012.

8. It is convenient to consider first what information, if any, about these two courses enlivened s.359A, in particular whether the fact that the Applicant notified of cessation of studies and the source of this information amounted to information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review.

9. The delegate’s decision of 19 January 2012 referred to the fact that the Applicant had ceased the course he was enrolled in on 5 October 2010 (and had been reported by the education provider) as well as the fact that while his student visa application of 23 July 2011 included Certificates of Enrolment to indicate that he would be commencing further studies (in the Certificate IV course) on 4 October 2011, this meant that a period of 12 months had elapsed “between courses”. 

10. The Applicant sought to distinguish this information from the information contained in the departmental database referred to in the Tribunal decision, on the basis that it also referred to the fact that the Applicant notified of cessation of study and recorded that his subsequent enrolment in the Diploma of Accounting course had been “cancelled”. 

11. However, in my view, whether regard is had to Condition 8202 or 8516 in conjunction with the criterion in cl.572.231 in Schedule 2 to the Migration Regulations, the fact of notification by the Applicant of cessation of studies and the source of that information (as distinct from the fact of cessation of enrolment recorded in the delegate’s decision) was not information that would be the reason or part of the reason for affirming the decision under review. Both conditions related to the fact of enrolment (or, under cl.572.231, a current offer of enrolment). I am not persuaded that the Applicant’s “notification” of cessation of studies (as distinct from the fact of cessation of enrolment) is such that it would be part of the reason for finding that there had been a failure to comply with conditions that (insofar as relevant) required the Applicant to be enrolled in a course throughout the duration of his student visa.  In that respect it is notable that in its findings the Tribunal relied on the fact of the substantial gap in enrolment and the fact that there was no evidence provided as to “why” this had occurred (such as to support any argument that there had nonetheless been “substantial” compliance). 

12. For the purposes of consideration of whether the Applicant had “complied substantially” with the conditions to which his last substantive visa was subject insofar as they required him to be enrolled in a course, the information that would be the reason or part of the reason for affirming the decision under review was the fact of cancellation of enrolment in the Diploma of Accounting on 5 October 2010 and the absence of subsequent enrolment in any other course during the period of the Applicant’s last substantive visa.  That information was recorded in the delegate’s decision.  I am not persuaded that it was necessary to identify the source of the confirmatory and additional material referred to in paragraph 16 of the Tribunal decision (the departmental database).  Given the substance and relevance of the information in question in this case, the fact that the Tribunal referred to the departmental database (as well as to the evidence before the Department referred to in the delegate’s decision) as one source of information as to cessation of enrolment while the Applicant held a substantive visa did not mean that the additional source of this information would be the reason or part of the reason for affirming the decision under review or that disclosure of such source was necessary as part of the context in an order to afford the Applicant the requisite opportunity to comment or respond to the factual information in question.  The information that enlivened s.359A(1) was in substance what was contained in the delegate’s decision. 

13. I have borne in mind that information for the purposes of s.359A cannot necessarily be divorced from the context in which it appears and that the provision requires disclosure of “so much as to ensure that the opportunity to “comment…or respond…” is meaningful” in the sense considered by Flick J in SZNKO v Minister for Immigration (2010) 184 FCR 505; [2010] FCA 297 at [23] in relation to s.424A of the Act. However, generally disclosure of the “substance” of such information will suffice.  I am satisfied that disclosure of the substance of this information (as disclosed in the delegate’s reasons) would have been sufficient to give the Applicant a meaningful opportunity to comment.  The fact that the Tribunal had, in effect, obtained confirmation of this information from a departmental database (which also contained additional material) did not have to be put to the Applicant.  The Applicant gave the information in the delegate’s decision to the Tribunal in the sense considered in Chamnam You. Hence it was within the s.359A(4) exception.

14. Consistent with this, insofar as it is relevant to have regard to the Tribunal decision in determining whether information enlivens s.359A, in considering whether it was satisfied that the Applicant had complied substantially with the visa conditions to which his last substantive was subject, in paragraph 17 of its reasons the Tribunal had regard to the fact of cessation of the Applicant’s enrolment in the Diploma of Accounting course on 5 October 2010 and the subsequent gap in his enrolment (not the fact that he “notified of the cessation of studies”) albeit it had recorded that information in paragraph 16.  Moreover, the Tribunal did not rely on the variation reason recorded in the database in addressing the issue of substantial compliance.  Rather, it found that there was “no evidence” provided as to “why” the Applicant had failed to comply substantially with conditions requiring him to maintain enrolment whilst the holder of the Subclass 572 visa. 

15. The Applicant also submitted that the Tribunal was also obliged to put to him the information about the Diploma of Business Administration course referred to in paragraph 16 of its reasons for decision. This information related to a course which commenced in April 2012 which was after the Applicant’s last substantive student visa had ceased and after the delegate’s decision (so that a s.359A(4) issue arises). There is no suggestion that the bridging visas held by the Applicant after his student visa ceased were subject to either Condition 8202 or Condition 8516 or that any of the information in the database about the Diploma of Business Administration course was in any way relevant to the issue of substantial compliance with any conditions which did apply to such bridging visas. The Tribunal confined its consideration to the issue of whether the Applicant had complied substantially with the conditions that applied to his last substantive visa in circumstances where cl.572.235 imposed a cumulative requirement of substantial compliance with conditions that applied to the last substantive visa and also those that applied to any subsequent bridging visa.

16. What was in issue was substantial compliance with conditions while the visa was in force and not a broader issue such as whether the Applicant was a genuine student.  In my view information about what occurred some nine or ten months after the Applicant’s last substantive student visa had ceased cannot be said to be information that would be part of the reason for affirming the decision under review as information that undermined his claim to have complied substantially with the conditions that applied during the period when the earlier student visa was in effect. 

17. The Applicant contended that the background information about his later subsequent cessation of further studies and cancellation of another certificate of enrolment was relevant as part of all the evidence in relation to whether he had deliberately flouted visa conditions.  Had the second cessation of studies occurred during the currency of the Applicant’s last student visa that may have been so.  However the cessation and cancellation of his enrolment in the Diploma of Business Administration occurred in 2012, after his last held substantive visa had ceased.  The Tribunal did not have regard to such later information in relation to the issue of whether the Applicant deliberately flouted the conditions to which the student visa he had held in 2010-2011 was subject.  Rather, it found there was no evidence provided to the Department or the Tribunal to explain why the Applicant had failed to maintain enrolment while holding a student visa (apart from the death certificate with regard to the grandfather’s death in December 2010).  It found that it could not be satisfied on the evidence before it that the Applicant had not deliberately flouted the visa conditions that applied to the last substantive visa. 

18. It has not been established that the information about subsequent events was information that in its terms amounted to a rejection, denial or undermining or the Applicant’s claims to meet the criterion of substantial compliance with conditions that applied to his last held student visa in the sense considered in SZBYR or that it was otherwise such that the Tribunal considered it would be part of the reason for finding the Applicant failed to comply substantially with the conditions applicable to his last held student visa.  Hence the Tribunal was not obliged to put this information to the Applicant under s.359A(1) of the Act. 

19. It has not been established that there was a failure to comply with s.359A of the Act. As this was the only ground relied upon by the Applicant the application must be dismissed.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date:10 March 2016