Undavalli v Minister for Immigration - [2007] FMCA 1325

FEDERAL MAGISTRATES COURT OF AUSTRALIA

UNDAVALLI v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1325

MIGRATION – Review of Migration Review Tribunal decision.
Visa – tourist visa – Tribunal erred in application of visa criteria – failure to apply correct test.
Relief not refused on the claimed basis that no useful result could ensue from it being granted.

Migration Regulations 1994, sch.2 cls.574.611, 676.215

Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167
Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 216
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26

Applicants:

SUNIL KUMAR UNDAVALLI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 296 of 2007

Judgment of:

Cameron FM

Hearing date:

4 May 2007

Date of Last Submission:

4 June 2007

Delivered at:

Sydney

Delivered on:

17 August 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr J. Mitchell

Solicitors for the Respondents:

Clayton Utz

ORDERS

A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent signed on 18 December 2006.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated

30 November 2005.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 296 of 2007

SUNIL KUMAR UNDAVALLI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application dated 31 January 2007, the applicant seeks review of the decision of the Migration Review Tribunal (“Tribunal”) which was signed on 18 December 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) on or about 30 November 2005 refusing the applicant’s application for a tourist visa.

Background facts

The applicant is a male born in India on 7 May 1979.
On 11 August 2005 the applicant lodged an application for a tourist visa subclass 676. At this time he was the holder of a student visa subclass TU-574. On 15 August 2005 the Department of Immigration and Multicultural and Indigenous Affairs (“Department”) wrote to the applicant requesting a copy of his academic record and attendance certificate. The Department wrote again on 10 October 2005 and

3 November 2005 requesting this information. At the time the delegate made her decision the applicant had not provided a copy of his academic record to the Department.
The Minister’s delegate refused the applicant’s application for a tourist visa on the basis that he did not meet a relevant primary criterion namely, that he had complied substantially with the conditions that applied to the last substantive visa held by him. He had not provided his academic record “to show that he had commenced or completed his course” (CB 14) and this was taken to demonstrate a failure to comply with the conditions of his student visa.

The Tribunal’s decision and reasons

After discussing his application and the evidence before it the Tribunal found that it was not satisfied that the applicant met at least one of the criteria relevant to the grant of a tourist visa, namely clause 676.215 in schedule 2 to the Migration Regulations 1994 (“Regulations”). That clause provides that one of the criteria to be satisfied at the time of application for a tourist visa is, if the applicant is 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.
The Tribunal concluded that this criterion had not been met on the basis that the applicant had not complied with condition 8202 of his student visa. Relevantly, that visa condition required in condition 8202(3)(b) that the holder of such a visa:
…achieves an academic result that is certified by the education provider to be at least satisfactory…
The Tribunal’s decision was based on the fact that, as the applicant had been excluded from his Masters of Science degree at the University of Wollongong and failed the four subjects undertaken in the spring term of 2004 and the autumn term of 2005, the Tribunal could not be satisfied that the applicant was able to meet criteria relevant to the grant of the tourist visa.
In essence the Tribunal found:
… condition 8202 requires that a visa holder make satisfactory academic progress in each term or semester of their studies and that this must be certified by the education provider. The Tribunal finds that the evidence before it was indicative of a clear breach of condition 8202 and that this breach could not be mitigated on the basis of the applicant having failed each of the four subjects by only a few marks, or that the breaches over the 2004 and 2005 academic year [sic] could be attributable to the applicant having difficulty adjusting to a new learning environment. The evidence before the Tribunal indicated that as a result of the failures the applicant was in fact excluded from his course and that this evidence is equivocal [sic] of the breach of condition 8202. (CB 58)

Proceedings in this Court

The grounds of the application were pleaded as follows:
The Tribunal at page 6 of its decision finds that the evidence before it was indicative of a clear breach of condition 8202. This finding is erroneous. University of Wollongong never determined either to the applicant or to the Tribunal that applicant academic performance is not satisfactory.
As already noted, in respect to the tourist visa for which the applicant applied, one of the primary criteria was set out in cl.676.215, quoted above at [5]. At the time of lodging his application for a tourist visa, the applicant held a student visa subclass TU-574, one of the conditions of which, as found at clause 574.611 of schedule 2 to the Regulations, is that the applicant satisfy the requirements of condition 8202.
Whether the applicant has satisfied his student visa condition 8202, in the sense of achieving an academic result that is certified by the education provider to be at least satisfactory, depends not on his actual academic achievements but upon the certification of the education provider that whatever academic result he achieved was at least satisfactory: Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167. The condition admits of only strict compliance and substantial compliance short of strict compliance will not satisfy the condition. As Ryan J said in Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 216 at 10 which was cited with apparent approval by Heerey and Sundberg JJ in Jayasekara’s case at [5]:
However, the presence or absence of a certificate from the education provider is not susceptible to being affected by circumstances beyond the applicant’s control in that sense. Either the education provider has certified that the applicant’s academic results for the relevant period have been at least satisfactory or it has not. Discretionary factors of the kind to which Katz J referred in Baidakova and which are noted in the PAM may legitimately influence the education provider in deciding whether or not to certify that a result has been at least satisfactory but, in the absence of any certificate at all, those factors can have no bearing on the decision which the Tribunal or this Court is required to make.
At the hearing before the Tribunal the applicant conceded that he had been excluded from his Master of Science course at Wollongong University because he had failed the four subjects which he had attempted in 2004 and 2005. The applicant says that there had been mitigating circumstances for this and noted that he had failed each of the four subjects by only a few marks. However, whether the applicant failed those courses by one mark or many marks is irrelevant to the question of whether he had complied with condition 8202 which required the certification by the education provider that he had achieved an academic result that was at least satisfactory.
In reviewing the delegate’s decision, the Tribunal focussed its attention on the applicant’s academic result rather than on whether there was or was not relevant certification by the education provider. In this regard, the Tribunal described condition 8202 as requiring:
… a visa holder make satisfactory academic progress in each term or semester of their studies and that this must be certified by the education provider. (CB 58)
This was not the test. Condition 8202 did not require the visa holder to make satisfactory academic progress. It required the particular certification set out in the visa condition. Although the Tribunal did qualify its comment by observing that the satisfactory academic progress was required to be certified by the education provider, in its consideration of the application it did not truly turn its mind to this requirement. It is significant that the Tribunal said this:
The Tribunal finds that the evidence before it was indicative of a clear breach of condition 8202 … The evidence before the Tribunal indicated that as a result of the failures the applicant was in fact excluded from his course and that this evidence is equivocal [sic: indicative?] of the breach of condition 8202. (CB 58)
The only evidence before the Tribunal relevant to the issue of the applicant’s compliance with visa condition 8202(3)(b) was a certificate that the applicant had completed the “Wollongong University College preparation for IELTS”, the applicant’s enrolment record and a transcript of his academic record (CB 36-38). The second and third of these documents record the applicant’s failures in four courses over 2004 and 2005. However, none of those documents contains a certification by the education provider that the applicant’s academic result was at least satisfactory. Put another way, there was nothing in the evidence before the Tribunal which indicated one way or the other that a certification existed or did not exist and the only evidence before the Tribunal was the three documents referred to above. In arriving at its conclusion based on “the evidence before it” the Tribunal did not turn its mind to the existence or absence of the certificate required by condition 8202(3)(b).
The fact that the Tribunal did not address itself to the correct question is demonstrated by the fact that it expressed the view that the evidence before it was “indicative” of a breach of condition 8202. As already discussed in these reasons, the criteria in condition 8202 are either satisfied or they are not and the existence or absence of a certificate will determine this. Without bringing to the consideration of this issue a mind keenly attuned to the perception of error, I conclude that the evidence to which the Tribunal was referring in the making of its finding was only the evidence before it and not the fact that it did not have a certificate from the university. If it had properly addressed the criteria in 8202(3)(b) it might well have concluded that the applicant did not satisfy them because he had failed to put the required certification before the Tribunal, it being the applicant’s task to persuade the Tribunal that the decision under review should be set aside.
However, rather than do this, the Tribunal turned its mind to the applicant’s poor academic record, and concluded that this indicated a breach of condition 8202. Condition 8202 is designed to avoid the necessity for the Tribunal to embark on such considerations. As Heerey and Sundberg JJ said in Jayasekara’s case at [16]:
There is an obvious policy behind the way the condition is framed. Questions of academic progress should be left to the judgment of the education provider rather than a Departmental decision-maker or the Tribunal, who are less well fitted to make such judgments: Khan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 141 at [4].
Although the applicant’s academic record was clearly unimpressive it cannot be concluded, as the Tribunal appears to have done, that that record would nevertheless have been incapable of being certified as satisfactory. Given that the applicant was excluded from the university the likelihood of such certification seems quite remote but that is not the issue.
For these reasons, I find that the Tribunal failed to ask the correct question, namely whether the applicant had achieved an academic result that was certified by the education provider to be at least satisfactory and, instead, concluded from the evidence before it that his academic result indicated a breach of the condition. In doing so the Tribunal was guilty of jurisdictional error.
Mr Mitchell on behalf of the Minister submitted that were this to be the conclusion the Court reached I should nevertheless, in the exercise of discretion, refuse relief on the basis that were the matter to be remitted to the Tribunal there was no possibility of a different decision because the Tribunal could not possibly be satisfied that condition 8202 had been met. However, just as there was no evidentiary basis for the Tribunal to conclude that the applicant had breached condition 8202 of his student visa, so there is no evidence before me on which I can be confident that such a breach will inevitably be demonstrated if the matter is to be returned to the Tribunal for determination according to law. In this regard, it is not irrelevant that in none of the letters seeking information which the Minister’s department and the Tribunal sent to the applicant was there a request for a document from the education provider certifying the applicant’s achievement of a satisfactory academic result. Although it is for the applicant to make out his case for an entitlement to the visa he seeks, it is also apparent that neither he nor the respondents have directed their attention to what condition 8202 requires.
Given that none of the parties to this proceeding addressed this central issue prior to these proceedings, I am not in a position to conclude what the result will be once they do. It seems unlikely that the applicant will be able to obtain the certification he needs but I am not prepared to conclude that this is a case in which no useful result could ensue from the grant of the relief desired by the applicant: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26.
Consequently in my view, this is not an appropriate case to refuse relief on a discretionary basis.

Conclusion

As jurisdictional error on the part of the Tribunal has been demonstrated and relief will not be withheld on discretionary grounds, the Tribunal’s decision will be set aside and the matter remitted to the Tribunal to be determined according to law.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Cameron FM.

Associate:

Date: 17 August 2007