WIJAYASOORIYA v Minister for Immigration
[2004] FMCA 504
•20 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WIJAYASOORIYA v MINISTER FOR IMMIGRATION | [2004] FMCA 504 |
| MIGRATION – Appeal from Migration Review Tribunal – cancellation of student (Temporary) (Class TU) visa – course and attendance requirements pursuant to condition 8202 – mandatory cancellation – substantial compliance with condition – no jurisdictional error. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.474
Migration Regulations 1994 (Cth), Schedule 2, clauses 572.111 & 572.212, Schedule 8, condition 8202
Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436
Craig v South Australia (1995) 184 CLR 163
Gerhard v Minister for Immigration & Multicultural and Indigenous Affairs (2000) FCA 495
Lam v Minister for Immigration and Multicultural Affairs [2001] FCA 1866
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) FCA 719
Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
| Applicant: | DON UDESH ERANGA WIJAYASOORIYA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 933 of 2003 |
| Delivered on: | 20 August 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 10 August 2004 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Mr G. A. Fernandez |
| Solicitors for the Applicant: | Mano & Associates |
| Counsel for the Respondent: | Ms J. MacDonnell |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDER
THAT the appeal be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 933 of 2003
| DON UDESH ERANGA WIJAYASOORIYA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on 27 August 2003 seeking judicial review of the decision of the Migration Review Tribunal on 21 July 2003 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a Student (Temporary) (Class TU) (sub-class 572) visa.
The history
The applicant is a male national of Sri Lanka. He came to Australia on 15 July 2000 on a Student (Temporary) (Class TU) (sub-class 560) visa, granted on 10 July 2000 and valid until 30 July 2002. On 21 July 2000 a further sub-class 560 visa was granted, also valid until 30 July 2002. The applicant commenced studies at the Box Hill Institute of TAFE in semester two of 2000 towards a Diploma in Information Technology. All student visas are subject to condition 8202 (set out in Schedule 8 of the Migration Regulations 1994 (Cth)) which, summarily, requires that student visa holders attend for at least 80% of the contact hours scheduled for their course of study and achieve satisfactory results.
The applicant lodged an application for a Student (Temporary) (Class TU) (sub-class 572) visa on 30 July 2002, which was refused by the delegate of the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) on 22 August 2002. An application to the Migration Review Tribunal (“the Tribunal”) for review of this decision was filed on 19 September 2002. The Tribunal affirmed the decision of the delegate of the Department in its decision dated 21 July 2003, finding specifically that the applicant was not entitled to a grant of the particular visa. The Tribunal found that the applicant had not substantially complied with condition 8202 of his previous visa as his attendance, on average, was below 80% and his academic results were not satisfactory.
The applicant claimed that his problematic results in 2001 were due to him changing course during the year and having difficulty obtaining credit from Box Hill Institute of TAFE for previous subjects undertaken. He also claimed that his results and attendance were negatively affected by the hospitalisation of his mother in semester one of 2002. His attendance in 2003 was well above the minimum requirement of 80%.
On 27 August 2003, the applicant lodged an application in the Federal Magistrates Court, being MZ 933 of 2003, pursuant to section 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision. The applicant claimed that the Tribunal had erred in finding that the applicant was not entitled to the visa. Summarily, the applicant claimed that the Tribunal had misconstrued and failed to correctly interpret the requirements of condition 8202 as governed by clauses 572.211 and 572.212 (Schedule 2 of the Migration Regulations) in relation to whether “strict compliance” with the condition was required.
In the applicant’s contentions of facts and law, which were filed on 9 March 2004, it was claimed that the Tribunal:
a)had failed to take into account relevant considerations such as the applicant’s state of depression, problems with Box Hill Institute of TAFE in relation to pre-requisites, subject clashes and failure to give credit for studies already completed, and the affect of his mother’s illness on him;
b)incorrectly interpreted condition 8202 by requiring strict, rather than substantial, compliance; and
c)gave a finding in relation to the applicant’s compliance with condition 8202 using insufficient evidence.
The applicant’s arguments were rebutted in the respondent’s contentions of fact and law, which were filed on 6 May 2004. In summary, the respondent argued that:
a)the Tribunal did assess whether there had been substantial, as opposed to strict, compliance with condition 8202, and that there had been a “yawning gulf” between what was required of the applicant and his actual performance;
b)the Tribunal’s finding that the applicant had not substantially complied with condition 8202 was one of fact, and could not give rise to an error of law or jurisdictional error; and
c)the applicant’s improved attendance in 2003 was irrelevant because it was outside the relevant visa period.
The law
The relevant part of condition 8202 reads as follows:
(3) The condition is that:
(a) in the case of the holder of a Subclass 560 Visa who is an AusAID or secondary school exchange visa – the holder is enrolled in a full-time course of study; and
(b) in any other case – the holder is enrolled in a registered course; and
(c) 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
(d) 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.
Whilst there was some disagreement at the time of the Tribunal hearing as to which version of condition 8202 was applicable. The parties agreed that the law is now clear - that the current version overrides with retrospective effect the previous version.
In Gerhard v Minister for Immigration & Multicultural & Indigenous Affairs (2000) FCA 495, Ryan J at paragraph [13] held:
Accordingly, for the mandatory obligation to cancel the applicant's visa to arise, the Minister, or his Delegate (or the MRT standing in the shoes of the Minister) had to be satisfied that the applicant had not complied with condition 8202. The matters stipulated in condition 8202(2) and (3) are cumulative as are the twofold requirements imposed by condition 8202(3). In other words, for an applicant to comply with condition 8202(3), the Minister must be satisfied that the eighty percent threshold for attendance has been satisfied and the holder must have achieved an academic result that has been certified by the education provider to be at least satisfactory. The Minister can only be satisfied of non-compliance with the 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.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323).
Conclusions and findings
The Tribunal considered whether the applicant had substantially complied with condition 8202. As Gray J held in Lam v Minister for Immigration and Multicultural Affairs [2001] FCA 1866 at [23] there is no test as to whether there has been substantial compliance with a condition:
The circumstances of each case will determine what factors the decision-maker takes into account. The weight to be given to those circumstances is essentially a matter for the decision- maker. In a case in which the decision-maker is the Tribunal it is not open to the Court to set aside the decision on the basis that the Court disagrees with the weight to be attributed to a particular factor.
The Tribunal had regard to all of the evidence given by the applicant and the submissions of his agents as to the effect of the changes in the course and of his mother’s illness on his attendance and performance. After having taken these factors into account, the Tribunal found there was “no statement to certify a satisfactory result or attendance for most of the relevant visa period” (Casebook (“CB”) 49 at 28).
The Tribunal had asked the applicant to provide a letter from Box Hill Institute of TAFE certifying that his results for each semester from semester two of 2000 to semester one of 2002 were considered to be satisfactory (CB 33). The document provided in response did not certify any of the applicant’s results to be satisfactory but the Tribunal reasonably interpreted that as saying that his results for the year 2000 were satisfactory but his results for 2001 and 2002 were not satisfactory. In response to the Tribunal’s request, no attendance records were provided for semester two of the year 2000 or semester one of the year 2001 but the Box Hill Institute of TAFE stated that his attendance in semester two of 2001 was 56% and his attendance in semester one of 2002 was 36% (CB 35). In other words, the Tribunal found there was no substantial compliance because the applicant’s results were not certified to be satisfactory and his attendance was substantially less than 80%, for most of the visa period. His results and attendance were not good enough to constitute substantial compliance over that period.
I accept the respondent’s submission that the Tribunal’s finding can be described as an example of the “yawning gulf”, as referred to in Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 at [1445], between what was required of the applicant and what was actually achieved. The “gulf” precluded a finding of substantial compliance. The applicant did not pass many of the subjects in which he enrolled in 2001 and failed all three of the subjects undertaken in the first semester of 2002. His attendance was substantially less than 50% for two consecutive semesters (56% in semester two of 2001 and only 36% in semester one of 2002).
I am further satisfied that the Tribunal’s lack of satisfaction that the applicant had substantially complied with condition 8202 was a finding of fact which could not give rise to an error of law (Minister for Immigration & Multicultural Affairs v Rajalingam (1999) FCA 719).
In so far as the applicant relies on his attendance in 2003, the Tribunal was correct to find that it was outside the visa period and therefore to implicitly find that it was not relevant to whether he had substantially complied with condition 8202 of his last visa.
Accordingly, I do not accept that the Tribunal:
(a)made a finding in the absence of evidence; or
(b)failed to take into account a relevant consideration; or
(c)failed to address the issue of substantial compliance with condition 8202.
There is no jurisdictional error and I dismiss the appeal.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N. Lane
Date: 20 August 2004
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