Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612
MIGRATION - review of decision affirming refusal to review Subclass 560 (student) visa - previous visa subject to condition that “holder must satisfy course requirements” - relevant circumstances to be considered in assessing whether compliance substantial - extent to which Tribunal required to have regard to guidelines in departmental procedures advice manual - whether Tribunal misconstrued or misapplied policy guidelines - effect of alleged failure by Tribunal to consider matters advanced by applicant as explaining or excusing academic failures - whether Tribunal should have investigated applicant’s attendance record - whether Tribunal failed to take account of change of course and early success in pursuing second course - whether discretionary element in Tribunal’s decision to grant or refuse renewal of visa.
ROBERT SOEGIANTO -v- MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RYAN J MELBOURNE 15 NOVEMBER 2001
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V907 of 2000
BETWEEN:
ROBERT SOEGIANTO Applicant
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:
RYAN J
DATE OF ORDER:
15 NOVEMBER 2001
WHERE MADE:
MELBOURNE
THE COURT ORDERS:
1. THAT the application be dismissed.
2.THAT the applicant pay the respondent’s costs of the application (including any reserved costs), such costs to be taxed in default of agreement.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V907 of 2000
BETWEEN:
ROBERT SOEGIANTO
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612
Case
[2001] FCA 1612
Decision Date
CaseChat Overview and Summary
In the case of Soegianto v Minister for Immigration & Multicultural Affairs, the applicant, an Indonesian citizen, sought to appeal a decision of the Tribunal that had refused his application for a student visa on the basis that he had not substantially complied with the conditions of his previous visa. The primary issue before the court was whether the Tribunal had committed an error of law in its consideration of the applicant's compliance with visa conditions and the interpretation of relevant provisions. Specifically, the applicant argued that the Tribunal had erred in its analysis of compliance, its interpretation of the Procedures Advice Manual 3, and had failed to make certain material findings of fact.
The court found that the Tribunal had properly considered the applicant's compliance with visa conditions, including his recent enrolment at RMIT University, and had not limited its assessment to the applicant's performance in the first course. The court also determined that the Tribunal's interpretation of the relevant provisions was consistent with the applicable legal framework, and that any alleged failure to make material findings of fact did not constitute an error of law. The court emphasised that the Tribunal was not bound to focus solely on the applicant's later course when assessing compliance with course requirements.
Ultimately, the court dismissed the application for judicial review, holding that the Tribunal's decision was not flawed by the errors of law alleged by the applicant. The court ordered that the applicant pay the costs of the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
The applicant has invoked s 476(1)(e) of the Migration Act 1958 (Cth) (“the Act”) contending that the Tribunal committed an error of law by either incorrectly interpreting the applicable law or incorrectly applying that law to the facts. More specifically, it has been asserted on behalf of the applicant that: (1)The Tribunal erred in its analysis of whether the applicant “complied substantially” with visa conditions (as outlined in Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 (Katz J)); (2)The Tribunal erred in its interpretation of the Procedures Advice Manual 3 (“PAM 3”).(3)The Tribunal had failed to set out material findings of fact as required by s 368 of the Act and had consequently committed an error reviewable under s 476(1)(a). Background The applicant is an Indonesian citizen who was born in 1977. The Tribunal made this summary of the background to his application for a student visa;8.The visa applicant is aged 23 years and first arrived in Australia on 13 February 1996 as the holder of a subclass 560 visa which was granted on 8 January 1996 and expired on 15 March 1997 (T1, f.18 and 22). He next applied for a subclass 560 visa which was granted on 13 February 1997 and expired on 15 March 2000 (T1, f.23). He departed Australia and returned on five separate occasions during the period of the previous visa held but each absence was of short duration and appears to be at times when the education provider was not in session (T1, ff.19 to 21). 9.The visa applicant applied for a further subclass 560 visa on 8 March 2000 (D1). The application was refused on 3 May 2000 on the grounds that the applicant had failed to satisfy the decision-maker that he had complied with the conditions of his previous visa and, in particular, that he did not satisfy condition 8202. (T1, ff.10-11). An application for review was lodged with the Tribunal on 24 May 2000 (T1, ff.1-7). 10.The visa applicant was enrolled in the Bachelor of Business (Management) at Monash University from 1997 to 1999 (D1). 11.Information received from Monash International dated 3 April 2000 indicates that the visa applicant “has not obtained a satisfactory academic standard” (D1). This statement is confirmed by the academic record of the visa applicant, which indicates that he passed 3 of 8 subjects in 1997, that he passed 3 of 9 subjects in 1998, that he passed 1 of 6 subjects in 1999 and was excluded from the University (D1). The visa applicant is currently enrolled in a Bachelor of Business (Marketing) at RMIT University since 28 February 2000. He states that he will be graduating by 30 June 2000 (T1, f 36). However, this is not consistent with information provided by RMIT University to the effect that the proposed course end-date is 30 June 2002 (T1, f 35). 12.At the hearing [held on 9 October 2000] the visa applicant confirmed his recent visa and academic history. He said that as a student at RMIT he passed all three subjects for which he was enrolled in first semester 2000, and was confident of passing four subjects in second semester, for which results are not yet available. He said his letter, in which he states that he will graduate in June 2000, contained a typographical error and that he would actually graduate in 2001. It was pointed out that RMIT noted the end-date of his course was 2002, and he said he anticipated that he would take extra subjects and finish earlier. 13.The visa applicant said that there were riots and a number of deaths of ethnic Chinese in Jakarta in 1998, and he and his family were ethnic Chinese. He said that “my family was deeply affected by the Asian crisis” and although he sat the exams he did not do well because of the situation. The visa applicant said his parents had spent a lot of money and he did not want to go home without a certificate.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
RYAN J
The contention on behalf of the applicant which was raised for the first time in oral argument on the hearing of the appeal was to the effect that the Tribunal had erred in law by excluding from consideration the applicant’s satisfactory compliance with the requirements for the course leading to the degree of Bachelor of Business at RMIT University. That was the course being pursued by the applicant when the Tribunal considered his application. However, as evidenced by par 8 of its reasons quoted at [3] above and the matters referred to in the last preceding paragraph, the Tribunal clearly referred to the fact of the applicant’s recent enrolment at the RMIT University. A full reading of its reasons demonstrates that it did not regard that matter as irrelevant to its attainment of the requisite satisfaction that the applicant had substantially complied with course requirements. “Course requirements”, I consider, refers to the requirements of the course, or courses, undertaken from time to time during the currency of the visa. The Regulations condition the initial grant of a visa on enrolment to undertake a full-time course of study that is registered or otherwise approved as contemplated by the Regulations; see e.g. cl 560.222 of Schedule 2. Accordingly, if the applicant has changed from one registered or otherwise approved course to another very early in the currency of a relevant visa, it may be open to the Tribunal, in assessing compliance with “course requirements” as a whole, to disregard or heavily discount a conceded failure to comply at all with the requirements of the first course. However, it by no means follows that the Tribunal is bound, as a matter of law, to have regard only to compliance with the requirements of a second course which is commenced late in the life of an initial student visa.Conclusion It will be apparent that, for the reasons just explained, each of the errors of law to which the applicant has pointed has either been rendered unavailable by the judgment of the High Court in Yusuf or has not been made out upon examination of the Tribunal’s reasons properly understood. The application must therefore be dismissed with costs.