Uddin v Minister for Immigration

Case •

[2007] FMCA 1173

•

20 July 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

UDDIN v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1173
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal was obliged to consider all sub-conditions of 8202 in considering whether there was substantial compliance with 8202 – whether the Migration Review Tribunal was obliged to consider all visa conditions where it had found one of the conditions was not met – whether the Migration Review Tribunal was obliged to consider whether there was substantial compliance with the conditions of a bridging visa where there was no substantial compliance with the conditions of the last held substantive visa.
Migration Regulations 1994, sch.2
Migration Act 1958 (Cth), s.474
Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 167
Kim v Witton (1995) 59 FCR 258
Baidakova v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 1436
Shrestha v Minister for Immigration and Multicultural Affairs [2001] FCA 1578
Minister for Immigration and Multicultural Affairs v Modi (2001) 116 FCR 496
Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495
Shang v Minister for Immigration and Multicultural Affairs [2006] FCA 1453
Weerasingh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 261
Applicant: A Z M JASIM UDDIN
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File number: SYG854 of 2007
Judgment of: Emmett FM
Hearing date: 12 July 2007
Date of last submission: 12 July 2007
Delivered at: Sydney
Delivered on: 20 July 2007

REPRESENTATION

Counsel for the Applicant: Mr J. Smith
Solicitors for the Applicant: Mr R. Turner (Parish Patience Immigration Lawyers)
Counsel for the Respondent: Mr B. Nolan
Solicitors for the Respondent: Mr B. OBrien (DLA Phillips Fox)
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG854 of 2007

A Z M JASIM UDDIN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. This is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”), dated 14 February 2007, affirming a decision of a delegate of the First Respondent, dated 21 November 2005, to refuse to grant the applicant a Student (Temporary) Class TU visa.

  2. On 28 January 2004, the applicant was granted a Class TU student visa subclass 574 with conditions attached, including condition 8202. Under regulation 572.235 of schedule 2 to the Migration Regulations 1994 (“Regulation 572.235”), the applicant is required, at the time of the decision, to satisfy the decision-maker 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.”

  3. It is common ground between the parties that, at the time of decision, the applicant’s substantive visa was a subclass 574 visa and that at that same time he also held a bridging visa.

  4. The Delegate found that the applicant had not satisfied Regulation 572.235 because he had not complied substantially with condition 8202 of his subclass 574 visa. The visa was subject to conditions 8105, 8202, 8533, 8501, 8517 and 8516.

  5. Condition 8202, at the relevant time, was as follows:

    “8202(1)     The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID 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.  

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

    (a)     in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:

    (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 and semester of the course; and

    (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.

    (4)     In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector visa – the holder is enrolled in a full-time course of study or training.”

  6. It is common ground between the parties that the applicant had not complied with condition 8202(3)(b) in that he was unable provide a certificate of satisfactory academic result for the relevant period. It is also common ground that the reason he was unable to provide such certification was because he had failed all subjects in respect of which he was enrolled in semester 2 of 2004 and semester 1 of 2005.

  7. The Tribunal stated that “the issue in the present case is whether, at the time of this decision, the applicant has complied substantially with condition 8202 of his sub-class 574 post graduate research sector visa.”

  8. Because the applicant had failed to achieve satisfactory academic results in semester 2 in 2004 and semester 1 2005 at the University of Southern Queensland, the Tribunal found that the applicant had not complied with the academic result requirements of condition 8202.

  9. In concluding that the applicant had not substantially complied with condition 8202, the Tribunal had regard to the Full Court of the Federal Court in Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 167 (“Jayasekara”) where the Full Court held that the relevant sub-condition in 8202 that requires certification of satisfactory academic achievement is not a sub-condition to which the concept of substantial compliance has any logical application. In relation to that issue the Tribunal said as follows:

    “There are, however, some conditions to which the concept of substantial compliance has no logical application: either the condition is satisfied or it is not. The academic result component of condition 8202 (currently, condition 8202(3)(b)) is one such condition. Thus, where there is no certificate by the education provider that a visa holder has achieved an academic result that is at least satisfactory, there is no compliance with condition 8202(3)(b), let alone substantial compliance. See Jayasekara v MIMA [2006] FCAFC 167.”

  10. The Tribunal found, as stated above, that, because there was no certificate before it from the education provider of satisfactory academic achievement, there was no compliance with condition 8202(3)(b), “let alone substantial compliance”.

  11. The Tribunal referred in its decision, to the sort of matters to be taken into account in deciding whether the applicant had complied substantially with a visa condition (Kim v Witton (1995) 59 FCR 258 at 271; Baidakova v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 1436). The Tribunal also had regard to the statements in Shrestha v Minister for Immigration and Multicultural Affairs [2001] FCA 1578; Minister for Immigration and Multicultural Affairs v Modi (2001) 116 FCR 496, to the effect that there is no rigid test to be applied to what may be involved in substantial compliance.

  12. The Tribunal then concluded that it was not satisfied that the applicant had complied with Regulation 572.235 and therefore affirmed the decision under review.

  13. On 14 March 2007, the applicant filed the application presently before this Court. That application relied on the following ground:

    “Ground 1: The MRT misinterpreted the applicable law and or misapplied the law to the facts

    Particulars

    1. The MRT erred in its interpretation and application of clause 572.235 of Schedule 2 of the Migration Regulations 1994:

    (a) by construing clauses 572.235 as meaning that a failure to comply with condition 8202, imposed on the subclass 574 visa held by the Applicant at the relevant time, meant that there was not substantial compliance with the conditions attached to that visa; and or

    (b) by finding that the Applicant had not substantially complied with the conditions of his visa because of an alleged breach of Condition 8202.”

  14. The applicant was represented by Mr Smith, of counsel, at the hearing. Leave was granted to the applicant to rely on a further particular as follows:

    “(c)The Tribunal failed to consider whether the Applicant had complied substantially with the conditions that apply or applied to the bridging visa held by the Applicant at the time of the decision”

Ground 1(a) – “The MRT erred in its interpretation and application of clause 572.235 of Schedule 2 of the Migration Regulations 1994 by construing clauses 572.235 as meaning that a failure to comply with condition 8202, imposed on the subclass 574 visa held by the applicant at the relevant time, meant that there was not substantial compliance with the conditions attached to that visa”

  1. As referred to above in these Reasons, the Tribunal stated that the issue was “whether, at the time of this decision, the applicant has complied substantially with Condition 8202 of his Subclass 574 Postgraduate Research Sector visa.” At the heart of the submissions made by counsel for the applicant is a submission that the Tribunal, while identifying the issue for review correctly, did not then proceed to answer the question it had posed.

  2. Counsel for the applicant submitted that Regulation 572.235 obliged the decision maker, in considering whether the applicant had substantially complied with condition 8202, to consider whether in respect of each of the four subclauses of condition 8202 there was substantial compliance and then to consider whether any failure to comply with any subclause meant that there had not been substantial compliance with the whole of the condition.

  3. Counsel for the applicant sought to distinguish the Full Court in Jayasekara where the Full Court of the Federal Court found that either the applicant complied with the requirement for certification of satisfactory academic result or it did not and in the event that it did not the failure to meet that subclause had the consequence that there was not substantial compliance with condition 8202 as a whole.

  4. Counsel for the applicant referred the Court to the changes to condition 8202 between Jayasekara and the case before this Court. Essentially, in the proceeding before this Court, condition 8202 stated relevantly that “the holder… must meet the requirements of subclauses 2 and 3”, whereas the same conditions were part only of subclause 3 in Jayasekara. Counsel for the applicant submitted that Regulation 572.235 required the decision-maker to consider whether or not the applicant had met 8202(2), as well as 8202(3), and a failure to consider whether the holder of the visa met 8202(2) was a failure to exercise jurisdiction.

  5. Certainly, there is no specific reference by the Tribunal to 8202(2) in terms. However, in posing the question “whether, at the time of this decision, the applicant has complied substantially with Condition 8202 of his Subclass 574 Postgraduate Research Sector visa”, it is clear that the Tribunal was aware that it needed to consider the entirety of condition 8202. The question posed by the Tribunal was not confined to whether or not the applicant had complied substantially with only condition 8202(3).

  6. Condition 8202(2) requires that the applicant be enrolled in a registered course. That is a mandatory requirement that was met by the applicant.

  7. In considering compliance with 8202(3), the Tribunal noted that on 9 August 2005 a facsimile had been sent from the Department to the University of Southern Queensland requesting the University to advise whether or not the applicant had achieved satisfactory academic results for each term. The Tribunal noted the response from the University, dated 23 August 2005, advising the Department that the applicant had not achieved satisfactory academic results in term 2 of 2004 and term 1 in 2005. The Tribunal noted the letter, dated 21 March 2006, sent by it to the applicant’s authorised recipient inviting the applicant to comment on the information received from the University of Southern Queensland. That letter was sent in accordance with s.359 of the Act. The Tribunal noted the response by the applicant’s authorised recipient, dated 18 April 2006, and the applicant’s statutory declaration made on 11 April 2006 as to his explanation for his failure to perform satisfactorily. The Tribunal also noted further correspondence between the Tribunal and the applicant’s authorised representative following the hearing held before the Tribunal held on 26 April 2006.

  8. As stated above in these reasons, counsel for the applicant submitted that the Tribunal failed to consider 8202(2) and therefore failed to consider whether there had been substantial compliance with condition 8202.

  9. Counsel for the first respondent referred the Court to Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495 where Ryan J stated that:

    “The Minister can only be satisfied of non-compliance with a latter sub-condition if there is no acceptable evidence of certification by the education provider of at least satisfactory results. It is not open to the Minister to question, or go behind, such a certificate if one exists.”

  10. Counsel for the first respondent also referred the Court to the case of Shang v Minister for Immigration and Multicultural Affairs [2006] FCA 1453 (“Shang”) where Lander J stated at [26]; [27] and [29]:

    “26. It is true that to comply with condition 8202 a visa holder must comply with both conditions 8202(2) and (3). That is made clear by condition 8202(1). I also agree that the obligations imposed in condition 8202(3) are cumulative so that a visa holder must comply with both paragraphs (a) and (b). It follows, therefore, that if a visa holder does not comply with condition 8202(2) the visa holder will have failed to comply with the condition. It also follows that if the visa holder does not comply with paragraphs (a) or (b) of condition 8202(3) then, again, the visa holder, even if the visa holder has complied with condition 8202, will have failed to comply with condition 8202.

    27. That does not, however, mean that before the Minister must address all of the matters in condition 8202(2) and (3). It is enough if the Minister is satisfied that either condition 8202(2) has not been complied with or either of paragraphs (a) or (b) of condition 8202(3) have not been complied with.

    …

    28. If the construction were as contended for by the appellant, it would mean that the Minister would need first to consider whether the holder met the requirements of subclause (2) of condition 8202. If the Minister were satisfied that the holder is not enrolled in a registered course, on the appellant’s argument, the Minister would then have to consider the matters in subclause (3) of condition 8202. There would, however, be no education provider who could provide the information to the Minister in subclause (3)(a) or provide the certificate contemplated in subclause (3)(b) because the holder would not have been enrolled in a registered course.”

  11. Counsel for the applicant submitted there had been substantial compliance with 8202(3) because the applicant had met the requirement of 80 per cent of the contact hours scheduled. However, the language of 8202(3) clearly makes compliance with both 8202(3)(a) and 8202(3)(b) a requirement of meeting 8202(3). Where either 8202(3)(a) or 8202(3)(b) has not been met, then there has not been compliance with 8202(3).

  12. Counsel for the applicant submits that the Tribunal is required to consider independently compliance with 8202(2) and 8202(3). In accordance with the reasoning of Lander J in Shang at [27] (see paragraph 24 above in these reasons), I reject the argument that there is a failure to consider whether or not the applicant complied with condition 8202 where the Tribunal has found that the applicant had not complied with 8202(3) and otherwise has not considered 8202(2).

  13. It may be that, in considering condition 8202(3)(a) alone, a decision maker could form a view that there had been substantial compliance with that subclause. However, such a conclusion is not open in respect of condition 8202(3)(b) because certification either exists or it does not. For that reason, once the decision maker finds that there has not been compliance with condition 8202(3)(b) and that finding was open to it on the evidence and material before it, then it is not possible for the Tribunal to find that there has been any compliance let alone substantial compliance with condition 8202. The finding made by the Tribunal was that “there is no compliance with condition 8202(3)(b), let alone substantial compliance.” That finding by the Tribunal makes clear that it understood that it was possible to have substantial compliance with one of the other subclauses of 8202 which may lead to a conclusion that there had been substantial compliance with condition 8202. However no such conclusion is possible where the Tribunal finds that condition 8202(3)(b) has not been met.

  14. Accordingly, this ground is not made out.

Ground 1(b) – “The MRT erred in its interpretation and application of clause 572.235 of Schedule 2 of the Migration Regulations 1994 by finding that the Applicant had not substantially complied with the conditions of his visa because of an alleged breach of condition 8202.”

  1. Counsel for the applicant submitted that the Tribunal was obliged to consider whether there has been substantial compliance with each of the conditions attaching to the visa and that a finding that there has not been substantial compliance with one condition does not mean that there has not been substantial compliance with all the conditions.

  2. Counsel for the first respondent submitted that substantial compliance with all the conditions cumulatively is required and, therefore, because there has been no compliance with condition 8202, then it is not possible to find that there has been substantial compliance with the conditions. In support of that submission counsel for the first respondent referred the Court to Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 261 (“Weerasinghe”) where Ryan J considered regulation 573.12 which required, relevantly, 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.” Ryan J held that regulation 573.12 required substantial compliance with all of the conditions cumulatively to which the applicant’s last visa was subject.

  3. Where there was a finding that one of the conditions had not been met, then it is “strictly unnecessary to consider a second condition with which the applicant was required to comply” (Weerasinghe at [12]).

  4. The case before this Court concerns a visa that was subject to a regulation in similar terms to that of regulation 573.12 in Weerasinghe, namely, Regulation 572.235. Regulation 573.235 requires, relevantly, that “the applicant has complied substantially with the conditions that apply or apply to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.”

  1. In the circumstances, in accordance with the reasoning of Ryan J in Weerasinghe, the Tribunal, having found there was no compliance with condition 8202, was not then required to consider compliance with any other condition.

  2. Having found there was no compliance with condition 8202 and where Regulation 572.235 requires substantial compliance with all of the conditions cumulatively, there is no error on the part of the Tribunal in failing to consider each of the other conditions.

  3. To the extent that the applicant may have been suggesting by this ground that the Tribunal failed to consider the applicant’s submissions relating to this ground, the Tribunal reproduced in its decision a submission received by it on 14 February 2007 in which the applicant’s authorised recipient made the following further submission:

    “The Department of Immigration has decided that the applicant did not substantially complied with his previous visa conditions, hence refused his student visa. The applicant’s last held student visa had five conditions imposed on the visa. The refusal decision only stated that the applicant did not comply with condition 8202 because the applicant did not pass all his exams. There is no evidence to suggest that the applicant has not complied with the other four visa conditions.

    In addition, there are four elements in condition 8202 and the applicant arguably did not comply with only part of 8202(3)(b), less than 25% of the four elements and for only two university terms for the duration of his visa which was between December 2003 and August 2006. If in deed, he did not comply with part of one of the five visa conditions for two terms out of total 8 terms within two and a half years, the breach was certainly not substantial.

    As the applicant has stated in the past, there were many factors beyond his control which affected his studies and he has made every effort to try to pass his exams. It is submitted that 8202(3) (b) was not breached because the matter was not within the applicant’s control (see Kim v Whitton, Bardakova), the Full Court endorsed the proposition that the failure to comply with condition 8202(3)(b) could not be beyond the control of the visa applicant in the relevant sense, [5]. The reverse, however, is true in this case.”

  4. The Tribunal noted in its decision that this submission was received after it had signed its decision. However, the Tribunal recalled its decision in order to consider the submission which it ultimately did not accept. In the circumstances, it is clear that the Tribunal had regard to that post hearing submission.

  5. Accordingly, this ground is not made out.

Ground 1(c) – “The Tribunal failed to consider whether the Applicant had complied substantially with the conditions that apply or applied to the bridging visa held by the Applicant at the time of the decision”

  1. The same reasoning applies to the further particular (c) in that where there has not been substantial compliance by the applicant with the conditions of his last substantive visa, it is unnecessary for the Tribunal to consider whether or not there has been substantial compliance with his bridging visa because Regulation 572.235 requires substantial compliance with both visas.

  2. Accordingly, this ground is not made out.

Conclusion

  1. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Migration Act 1958 (Cth), this Court has no jurisdiction to interfere.

  2. The proceeding before this Court, commenced by way of application filed on 14 March 2007, is dismissed with costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  20 July 2007

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0