Singh v Minister for Immigration - [2012] FMCA 1126

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1126

MIGRATION – Judicial review – failure to substantially comply with condition of last held visa – apparent inconsistency in findings of tribunal – no error established.

Migration Regulations1994, cl.572.235, 8202(2)(a), reg1.40A

Chen v Minister for Immigration and Citizenship [2011] FMCA 177
Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 216

Applicant:

MANPREET SINGH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 822 of 2012

Judgment of:

Jarrett FM

Hearing date:

16 November 2012

Date of Last Submission:

16 November 2012

Delivered at:

Brisbane

Delivered on:

29 November 2012

REPRESENTATION

Counsel for the Applicant:

Mr Burrow

Solicitors for the Applicant:

Gopal and Chand Lawyers

Counsel for the Respondent:

Mr McGlade

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application filed on 13 September, 2012 be dismissed.
The applicant pay the first respondents costs fixed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 822 of 2012

MANPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 22 February, 2008 the applicant was granted a Student (Temporary) (Class TU) subclass 573 visa (Higher Education sector). That visa expired on 15 May, 2010.
On 14 May, 2010 the applicant applied for another Student (Temporary) (Class TU) visa, but this time of the subclass 572 (vocational education and training sector) type. He also applied for and was granted a bridging visa. A delegate of the Minister refused the application on 25 June, 2010. On 25 July, 2010 the applicant applied to a migration review tribunal for a review of the delegate’s decision.
In order to be eligible for the grant of a subclass 572 visa the applicant needed to satisfy the criteria set out in Part 572 of Schedule 2 to the Migration Regulations 1994. In this particular case the tribunal was concerned that the criterion set out in cl.572.235 of Schedule 2 to the Regulations was not satisfied. That clause required the applicant to establish that he had “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 visas”.
The previous substantive visa held by the applicant was the subclass 573 visa granted to him on 22 February, 2008. That visa was subject to condition 8202(2)(a) found in cl.8202(2)(a) of Schedule 2 of the Regulations. The tribunal concluded that condition 8202(2)(a) had not been satisfied while the subclass 573 visa was on foot and so Mr Singh did not meet the relevant criterion for the grant of the visa. The decision of the delegate was affirmed.
By this application Mr Singh seeks an order setting aside the decision of the tribunal and remitting the matter back for reconsideration and determination according to law.

The grounds of review

According to the written submissions delivered on his behalf, Mr Singh relies upon the following ground:
The Tribunal erred in determining whether the Applicant had substantially complied with previous visas held as required by cl 572.235
Particulars
1. The Tribunal failed to apply and consider the requirement for substantial compliance in the context of both the last substantively held visa and the subsequent bridging visa(s)
2. The Tribunal erred in not taking into account that the Applicant had substantially complied with the 573 visa in the context that the bachelor of business course offering was contingent on the completion of the VET courses.
Mr Singh abandoned reliance upon the second particular set out above.
He submits that the tribunal erred by failing to properly consider, in accordance with the jurisdiction conferred upon it, whether he had complied substantially with his previously held visas, and particularly his subclass 573 visa. Mr Singh accepts that he needs to establish jurisdictional error on the part of the tribunal to succeed in this application, and that the tribunal’s finding about substantial compliance is a question of fact. Whilst he does not contend that this Court should conduct a review of the factual merits of the tribunal’s decision, he argues that the tribunal has erred in the application of or misapprehended its jurisdiction.
There are two parts to his argument. The first part focuses upon an apparent internal inconsistency in the findings made by the tribunal in its reasons. The second focuses upon the exercise carried out by the tribunal. The tribunal concluded that the basis upon which the delegate had refused Mr Singh’s visa was erroneous, but nonetheless decided that he did not qualify for the grant of the visa on a different ground. This second aspect of the argument was quickly, and appropriately, abandoned. The tribunal’s task is to consider the application de novo.
As to the first aspect of Mr Singh’s argument, he says that the tribunal’s decision is internally inconsistent because at paragraph 63 of the tribunal’s reasons the following appears:
Having regard to the entirety of the applicant’s circumstances and taking into consideration that the concept of substantial compliance contemplates permissibility of some degree of non-compliance, accordingly, the tribunal finds that the applicant has complied substantially with the conditions of his last held substantive visa and any subsequent bridging visa.
He then points out that the tribunal later went on to find in paragraph 71 of the reasons:
In these circumstances the tribunal finds that the applicant has not complied substantially with condition 8202(2)(a) of his last held visa and, therefore, does not satisfy clause 572.235.
The two paragraphs are, on their face and without the benefit of context, inconsistent with each other.
Mr Singh submits that the findings of the tribunal are directly contradictory and that “with respect to the latter finding the error has arisen in that it was a consideration expressly limited to the question of substantial compliance with the previously held substantive visa – absent any consideration of the compliance with the subsequent bridging visas. As to the former finding – ‘having regard to the entirety of the Applicant's circumstances’ it is that, and not the latter, that with respect was made in accordance with the legislative scheme”. Mr Singh further submits:
In this matter, in exercising its jurisdiction, the tribunal erred in making findings that were in direct conflict without explanation or reason being provided. It was required to conduct a review of the decision and having found that the applicant had substantially complied, it was bound to set aside the decision of the delegate. It was not, it is submitted, authorised to then make further findings contradictory to its own – that is it was not authorised to review the decision of the delegate, make a new finding and then to review and change its own finding to come to a new decision. In making its subsequent finding the tribunal erred in that it did not consider all the prescribed circumstances (being both the last substantive visa held and any subsequent bridging visas).
To the extent that Mr Singh argues that the tribunal failed to consider whether there had been substantial compliance with all of the conditions of both of his last held substantive visa and any subsequent bridging visa in its findings in paragraph 71 of its decision, the submission is misdirected.
I accept that in conducting its review the tribunal was required to consider each of the conditions attaching to the last held substantive visa and any subsequent bridging visas. In the event that the tribunal concluded that any one of those conditions had not been substantially complied with it, it was bound to reject the application before it.
In Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 216 Ryan J stated that a condition similar to clause 527.235: “Requires substantial compliance with all of the conditions cumulatively to which an applicant’s last visa was subject…”.
In Chen v Minister for Immigration and Citizenship [2011] FMCA 177 Burnett FM observed:
[19] The applicant contends that this clause [cl.572.235] should be construed to mean that there is a global assessment of substantive compliance with the applicant’s last substantive visa and any subsequent bridging visa: it does not require a consideration of each condition discretely. The applicant contended the assessment did not require a consideration of the substantive compliance with each condition with the effect being that each condition is considered discretely and that it is only upon the cumulative satisfaction of each condition that the applicant can satisfy condition 8202. He contended the tribunal was in error in adopting a construction that afforded as a preface to the words “the conditions” the words “each and every” in the context of the visa conditions.
[20] The language of the clause is not complicated. Its expression is plain and its meaning is readily discernible from a plain reading of the words in their ordinary context. That is, relevantly for this applicant that the clause requires that the applicant has complied substantially with the conditions that apply or applied to the last substantive visa and to any subsequent bridging visa he held. The clause directs attention to the issue of compliance with each condition of that visa and the subsequent bridging visas. An assessment has to be made as to whether or not there has been substantial compliance with each such condition. On that basis the clause gives rise to a cumulative assessment, such that if there is a failure in respect of any one condition the application fails. No global assessment is made.
Having regard to those authorities, it is apparent that the task of the tribunal was to consider each visa condition applicable to the last held substantive visa and any bridging visas and determine if there had been substantial compliance with each condition. Although neither decision is binding upon me, the Federal Court decision is highly persuasive as is the decision of Burnett FM. I should follow the latter decision unless I am satisfied that is plainly wrong. I do not think that it is plainly wrong.
When one has regard to the tribunal’s decision and its reasons for decision it is clear that the tribunal was focussed upon considering each of the relevant conditions in turn. The tribunal’s reasons for decision reveal that after application had been made to the tribunal a hearing was held on 16 December, 2011. Mr Singh and his agents attended. They also gave the tribunal a written submission. Thereafter the tribunal held a second hearing on 28 February, 2012.
Paragraphs 26-41 of the tribunal’s reasons for decision deal with what occurred at the first tribunal hearing. I accept the submission of the first respondent that the focus of that hearing appears to have been on whether the applicant was enrolled in a registered course during the period of time the subclass 573 visa was on foot (another of the visa conditions with which he had to demonstrate substantial compliance).
Paragraphs 42-52 of the reasons for decision deal with the second tribunal hearing. It is clear again from the reasons of the tribunal that that second hearing focussed on a discrete matter, namely, whether the course that the applicant had enrolled in during the relevant period was a course which qualified him for the purposes of his visa. The applicant had to enrol in a course which was of the type (or a prerequisite to the type) specified in IMMI 05/055 and the focus of the tribunal’s inquiry at the second hearing was on whether the course in which the applicant was enrolled fell within that description. The tribunal in paragraph 53-71 sets out its findings and reasons on this aspect of the matter. At paragraph 56 the tribunal summarises its findings and reasons as follows:
55. The issue in the present case is whether at the time of this decision the applicant has complied substantially with condition 8202 of his former subclass 573 higher education sector visa and of his subsequent bridging visa. According to departmental records that visa was valid for the period 22 February 2008 to 15 May 2010. There is no evidence before the tribunal to suggest that the applicant has not complied with the conditions of his subsequent bridging visa.
56. For the following reasons the tribunal is not satisfied that the applicant has complied substantially with condition 8202(2)(a) of his subclass 573 higher education sector visa.
The tribunal then goes on in paragraphs 55-62 to consider whether Mr Singh had made good his claim that he was in fact enrolled in a course in the period from 22 February, 2008 to 15 May, 2010. The tribunal made a number of findings about that as follows:
57. According to the PRISMS database and the confirmation of enrolment dated 2 March 2010, the applicant was not enrolled in or subject of an offer of enrolment in a registered course between the period on or about 5 June 2009 (when his enrolment in a Certificate IV in Optical Dispensing was cancelled by his education provider) until 2 March 2010 (when he was issued a new confirmation of enrolment by the same education provider for the same course).
58. The applicant disputed the PRISMS records that he was ever not enrolled in a registered course. He claimed he remained enrolled in a registered course throughout the period in question. He claimed the education provider had failed to maintain correct records regarding his enrolment…
59. The Tribunal is satisfied the recordkeeping of the educational provider is, at best, questionable. There are clear inconsistencies on the documents issued by the education provider regarding the dates the applicant commenced and completed his study as well as the informality of the tuition receipts…
60. Clause 527.235 does not require strict compliance with condition 8202(2)(a). The applicant may satisfy this clause so long as he has substantially complied with that condition. …the Tribunal finds condition 8202(2)(a) is a condition to which substantial compliance does have logical application.
61. The Tribunal accepts the applicant’s evidence the education provider has not kept accurate records. …
62. The Tribunal finds on balance, the evidence weighs in favour of finding the applicant did continue attend the Certificate IV in Optical Technology for the period September 2008 to June 2009 and then in the Certificate IV in Optical Dispensing for the period June 2009 to August 2010. The Tribunal finds the information on the PRISMS database that his enrolment was cancelled on 5 June 2010 to be in error, most likely as a result of poor recordkeeping by the education provider. …
63. Having regard to the entirety of the applicant’s circumstances and taking into consideration that the concept of substantial compliance contemplates permissibility of some degree of noncompliance accordingly, the Tribunal finds that the applicant has complied substantially with the conditions of his last held substantive visa and any subsequent bridging visa.
It is clear from the context in which paragraph 63 appears that it is a paragraph in which the tribunal is expressing a conclusion to which it was leading by its reasoning in paragraphs 57-62. That is to say, the tribunal determined that:
a)The applicant’s education provider kept poor records of his attendance and enrolment;
b)The applicant’s claim that he was at all times in a course was probably correct;
c)The applicant only needed to demonstrate substantial compliance with condition 8202(2)(a);
d)The applicant demonstrated substantial compliance with that condition and therefore, he had substantially complied with that condition of his visa.
I accept that paragraph 63 of the tribunal’s reasons does not in its terms expressly confine itself to the question of compliance with condition 8202(2)(a) insofar as it concerns enrolment in a registered course but, as I have indicated, read in context, it is clearly a conclusory paragraph which follows the tribunal’s consideration of and finding about whether the applicant was in fact enrolled in a course.
In paragraph 64-71 the tribunal proceeds to consider whether the course in which the applicant was enrolled was a course which was sufficient to meet the requirements of condition 8202(2)(a) of his last held substantive visa. In paragraph 64 the tribunal says:
64. While not raised by the delegate in the decision, the tribunal considers that, on the facts before it, a question arises as to whether the applicant complied substantially with the conditions of his previous subclass 573 student visa and therefore, whether he is able to satisfy cl 572.235 on a different ground, specifically, whether while he was the holder of a subclass 573 visa he had been enrolled in a registered course specified for a subclass 573 visa in accordance with condition 8202(2)(a).
After recording Burnett FM’s rejection of a global approach to the question of substantial compliance in Chen v Minister for Immigration (above) the tribunal turned its mind to whether the applicant had been, during the relevant period, enrolled in a course that was capable of satisfying the last substantive visa held. The tribunal recorded that the applicant’s visa was subject to condition 8202 which on the authority of Chen required the applicant to be enrolled in a course specified for the subclass in the instrument in force at the time of application as being a registered course for the purpose of a higher education sector instrument: reg.1.40A. The courses specified at the time for subclass 573 were Bachelors Degree, Graduate Certificate, Graduate Diploma, Associate Degree, and Masters by Course Work (IMMI 05/055, 20 June 2005). The applicant did not submit that the tribunal’s findings in that regard were erroneous.
The tribunal found that the applicant was never enrolled in a registered course which was specified for the purposes of his subclass 573 visa for the period that his subclass 573 visa was in force. The evidence suggested that he had been offered enrolment in such a course (a Bachelor of Business course) but he never accepted that offer and accordingly, he did not comply with condition 8202(2)(a) from 22 February, 2008 to 15 May, 2010 because he was not enrolled during this time in a course that could satisfy that condition.
The tribunal went on to consider whether there had been substantial compliance with that visa condition but determined that there had been no substantial compliance. The applicant was unable to demonstrate substantial compliance with condition 8202(2)(a) where it required that he be enrolled in a registered course. The tribunal concluded that the applicant had not complied substantially with that visa condition and therefore, did not satisfy clause 572.235.

Conclusion

The tribunal’s decision is not attended by any error, let alone jurisdictional error. There is no inconsistency as contended for by the applicant in the tribunal’s reasons for decision. When read as a whole, in context and without an overly zealous eye to error, the tribunal’s reasons for decision explain the conclusions that it has reached. Those conclusions were plainly open to it.
In all of the circumstances, the application must be dismissed with costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 29 November 2012