FEDERAL COURT OF AUSTRALIA Peng v Minister for Immigration & Multicultural Affairs [2000] FCA 1672 MIGRATION – review of decision of Migration Review Tribunal affirming decision not to grant a Student (Temporary) Class TU Subclass 560 Visa – where applicant arrived in Australia two days before date of expiration of original visa – where applicant applied for new student visa, but was refused on grounds that condition 8202 of original student visa had not been substantially complied with – where registered course start and finish dates uncertain – whether Minister is obliged to take into account the applicant's explanation for failure to comply when determining whether there has been substantial compliance, – whether remitting application to the Migration Review Tribunal would be futile –whether substantial compliance with each condition, rather than substantial compliance with the conditions as a whole, is required – whether arrangements seeking to comply with an equivalent condition of a future visa, can amount to substantial performance of the condition of the original visa since expired – determination on whether there has been a failure to comply with condition 8202 at a certain time, can only be made at the completion of the course Migration Act 1958 (Cth) s 116(1)(b) Migration Regulations 1994 (Cth) reg 1.03, 2.43(2)(b), cl 560.213, cl 560.222, condition 8202 of Sch 8 Kim v Witton (1995) 59 FCR 258 applied Kumaraperu v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 381 applied Nong v Minister for Immigration & Multicultural Affairs [2000] FCA 1575 considered KANG JIE PENG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 830 OF 2000 HELY J 21 NOVEMBER 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 830 OF 2000 BETWEEN: KANG JIE PENG APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HELY J DATE OF ORDER: 21 NOVEMBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The decision of Migration Review Tribunal given on 30 June 2000 be set aside. 2. The matter to which the decision relates be remitted to a differently constituted Tribunal for reconsideration according to law. 3. The respondent pay the applicant's costs of this application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 830 OF 2000 BETWEEN: KANG JIE PENG APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HELY J DATE: 21 NOVEMBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a Chinese national. On 16 September 1998 he lodged an application for a Student (Temporary) Visa with the Australian Embassy in Beijing. The application disclosed that the applicant wished to undergo a course in intensive English at the Holmes Intensive English College prior to undertaking a high school course at the Hills Grammar School and thereafter a course at the University of Sydney. The application included a provisional letter of acceptance from the Holmes Intensive English College which confirmed the applicant's provisional enrolment with that College. The course details were for a twelve week course in secondary school preparation starting on 26 October 1998 and concluding on 15 January 1999. 2 On 29 January 1999 the Embassy notified the applicant that if he wished to continue with his visa application, he should forward official confirmation of enrolment from the intended educational provider together with certain other documents. Clause 560.222 of the Migration Regulations 1994 required the applicant to produce to the Minister evidence of enrolment to undertake a full time course of study that is a registered course. A registered course is defined in Regulation 1.03 as meaning a course of educational training offered by institutions satisfying a particular description. Whilst there is no specific finding by the Migration Review Tribunal ("MRT") to this effect, I would infer that the course "English for High School" provided by Intensive English College under CRICOS Course Code 009099M is a registered course. The Minister did not suggest to the contrary. 3 On 10 March 1999 the applicant forwarded to the Australian Embassy a document issued by Intensive English College styled "Confirmation of Enrolment for Overseas Students" which confirmed the applicant's enrolment in the course "English for High School", showing a proposed course start date of 12 April 1999 and a proposed course end date of 27 August 1999. Tuition fees of $5,900 were certified as having been pre-paid. 4 On 23 March 1999 a further confirmation of enrolment form was sent to the Australian Embassy in Beijing. This form was dated 23 March 1999 and confirmed the applicant's enrolment in the "English for High School" course with a proposed course start date of 23 August 1999 and a proposed course end date of 7 January 2000. On 26 April 1999, after a telephone communication with an Embassy officer (the substance of the conversation does not appear from the evidence), a further confirmation of enrolment form was sent to the Embassy. This form was also dated 23 March 1999 and confirmed the applicant's enrolment in the course "English for High School", but on this occasion the proposed course start date is shown as 10 May 1999 and the proposed course end date is shown as 24 September 1999. 5 On 6 May 1999 the applicant was granted a Student Visa, Class TU, Subclass 560 which permitted the applicant to remain in Australia until 24 October 1999. The record of the visa endorsed in the applicant's passport included the notation: "Conditions Mig.Regs, Sched 8 8202 meet course requirements 8105 work limitation 8501 health cover 8517 school age dependent" And the following further notation: "Must not arrive after 24 Oct 99" 6 Condition 8202, in the form which it took at the relevant time, was as follows: "The holder must: (a) be enrolled in a registered course; and (b) attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider or otherwise; and (c) if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory; and (d) comply with any requirement of the education provider in relation to payment of fees for the course." 7 The applicant did not arrive in Australia until 22 October 1999, two days before his visa was due to expire. His father had been involved in a car accident on 5 May 1999 which resulted in his hospitalisation between 5 May and 20 October 1999. The applicant contended that Chinese customs involving filial piety required him to remain in China to assist with the nursing of his father during the period of his hospitalisation. MRT found: "13 The review applicant has provided evidence to substantiate his contention that he was prevented from arriving in Australia earlier than 22 October 1999 as his father had been involved in an accident and required a considerable period of hospitalisation." A fair reading of this paragraph indicates that MRT accepted the applicant's claims in this regard. 8 On 22 October 1999, upon his arrival in Australia, the applicant applied for a Student (Temporary) Visa. He was eligible to apply for such a visa because he was then the holder of a Student (Temporary) (Class TU) Visa. The primary criteria to be satisfied for the grant of the Student (Temporary) Visa included the following: "560.213 If the application is made in Australia, 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." 9 On 26 October 1999 the Minister's delegate refused the application on the ground that as the applicant arrived in Australia two days before his existing visa was due to expire, he could not possibly comply with Condition 8202, and therefore could not satisfy clause 560.213 of the Migration Regulations. 10 On 3 November 1999 a further confirmation of enrolment was issued to the applicant by Intensive English College in relation to his enrolment in the course "English for High School", this time with a proposed course start date of 25 October 1999 and a proposed course end date of 10 March 2000. The College issued an interim certificate of attendance on 3 November 1999 to the effect that the applicant's current attendance is satisfactory in relation to course dates shown as 25 October 1999 to 10 March 2000. On 10 January 2000 a favourable end of term report was issued by the College, and on 10 February 2000 the College certified that the applicant's current attendance in its full time secondary school preparation program from 25 October 1999 to 10 March 2000 is 97%. On 1 May 2000 a certificate of attendance was issued certifying that the applicant attended the Holmes Intensive English College between 25 October 1999 and 21 April 2000 and his attendance was 88%. 11 On 30 June 2000 MRT affirmed the decision not to grant the applicant a Student (Temporary) Class TU Subclass 560 visa. It did so on the basis that the applicant had not substantially complied with Condition 8202, and the reasons for that failure were irrelevant. An admitted error of law 12 MRT did not make any specific finding as to the registered course in which the applicant was enrolled. Nor did it make any specific finding as to in what way there had been a failure to attend at least 80% of the classes and tutorials scheduled for that course. MRT simply said that it was impossible for the applicant to have complied with Condition 8202 given that he arrived two days before his visa expired, and the reason for the delay in his arrival was irrelevant. 13 On the hearing of this application, the Minister accepted that in determining whether the applicant had complied substantially with the 80% requirement, MRT was obliged to, but did not, take his explanation for his failure to comply into account: see Kim v Witton (1995) 59 FCR 258, 270-271 per Sackville J. Thus, the Minister accepted that the Tribunal made an error of law, but submitted that the matter should not be remitted to MRT for reconsideration, as the only decision which MRT could lawfully reach on the undisputed facts is a decision confirming the refusal of the applicant's visa application. 14 Both parties accepted that futile applications should not be remitted. This has been repeatedly held to be the case: see, eg Kumaraperu v Minister for Immigration & Multicultural Affairs (1998) 88 FCR 381, 396 per Weinberg J. Thus, the issue which I have to determine is whether it would be futile for the matter to be remitted to MRT for determination according to law. Whether substantial compliance with each visa condition is required? 15 Clause 560.213 requires substantial compliance with the conditions to which the visa is subject. The applicant submits that the clause should not be construed as if it required substantial compliance with each and every condition to which the visa is subject, when, by its terms, all that is required is that there be substantial compliance with the conditions taken as a whole. Thus, for example, if a visa was issued upon four conditions and three were complied with, but one was not complied with at all, a Tribunal of fact could nonetheless conclude that there had been substantial compliance with the conditions, as three out of four were met. 16 I do not think that the clause should be construed in this way. A requirement that the applicant shall have complied substantially with the conditions to which a visa is subject, as a matter of ordinary English, conveys that substantial compliance with each of those conditions is required. That view gains some reinforcement from s 116(1)(b) of the Migration Act 1958 (Cth) ("the Act"), which recognises the importance of individual visa conditions. Attempted compliance on expiry of the visa 17 The Minister has no power to waive compliance with Condition 8202: see Reg 2.43(2)(b). The issue is whether MRT could conclude that there had been substantial compliance with Condition 8202; not whether circumstances are such that a failure to substantially comply with the condition should be excused. 18 Condition 8202 specifies things which the holder of the visa must do. By necessary implication, they are matters to be done during the subsistence of the visa. When an issue arises as to whether there has been substantial compliance with the condition, the focus is on what the holder did or failed to do during the currency of the visa directed towards compliance with the condition. 19 Whilst MRT does not make a specific finding to this effect, it is clear that during the subsistence of the visa the applicant was enrolled in the course No 009099M – "English for High School" – conducted by Intensive English College. Again, whilst MRT makes no finding as to what classes and tutorials were scheduled for that course during the period of the visa, it is clear that the applicant did not attend any such classes or tutorials during that period. 20 An issue which may then arise, is whether there can be substantial compliance with a condition of a visa requiring 80% attendance at classes and tutorials for which the visa holder is enrolled if: - there is a satisfactory explanation for the failure to attend any of the classes and tutorials scheduled for the course in which the applicant is enrolled, and - the applicant makes arrangements for his attendance at such classes and tutorials commencing on 25 October 1999, upon the expiry of the visa. 21 In my view, this issue must be resolved against the applicant. On the facts hypothesised, the case is not one in which there has been "some degree of non-compliance with visa conditions" – (Kim v Witton (1995) 59 FCR 258, 270-271 per Sackville J) – rather there is simply no level of compliance with the condition during the subsistence of the visa, substantial or otherwise. An intention to remedy the deficiency by complying with an equivalent condition of a new visa if its issue can be procured, cannot amount to substantial performance of a condition of a visa which has got to the point of expiry without any performance of the relevant condition. Nong's case 22 On 6 November 2000 Katz J handed down his decision in Nong v Minister for Immigration & Multicultural Affairs [2000] FCA 1575. That case was concerned with the Minister's power to cancel a visa for alleged non-compliance with Condition 8202. Katz J held that Condition 8202(b) contemplates an examination of the level of attendance at the registered course only at the conclusion of the course, rather than being a test which is applied in a progressive fashion throughout the course. His Honour expressed the tentative view that this is still so even if the point is reached at which it is no longer possible for the student to attend at least 80% of the classes and tutorials scheduled for the course. Before me, the Minister did not challenge his Honour's primary finding, but did submit that the tentative conclusion was wrong, but without any examination of whether it was obviously wrong such that I should not follow it. 23 Nong's case would only be relevant if the classes and tutorials scheduled for the course for which the applicant was enrolled pursuant to par (a) of the condition continued beyond the expiry date of the visa. If that were so, and if the schedule of classes extended beyond 22 October 1999, then it would not then be possible, applying Nong, to find that there was then a failure to comply with the condition, because a finding to that effect could not be made until the completion of the course. Whether it was possible for the 80% condition to be complied with thereafter may involve factual questions as to the flexibility of the course schedule. 24 An argument to this effect was not put to MRT. This is unsurprising, as the decision of Katz J was not given until six months after MRT's decision in the present case. But if the course for which the applicant was enrolled in the present case pursuant to par (a) of the condition had a program of classes and tutorials extending beyond 22 October 1999, then the decision of Katz J has obvious relevance to the question of whether remission of the matter to MRT is an exercise in futility. 25 Two documents were issued by the College on 23 March 1993. One showed the proposed course as taking place between 23 August 1999 and 7 January 2000. The other showed the proposed course as taking place between 10 May 1999 and 24 September 1999. It may be that the latter, sent to the Embassy on 26 April 1999, was forwarded in substitution for the former. If that is the case then Nong's case can have no application. The telephone conversation referred to in the letter of 26 April 1999 may throw some light on the question. I simply do not know, and I am not entitled to guess, what the position is. 26 The existence of two documents issued on the one day showing different course dates, the one spanning 22 October 1999, the other not, suggests at least the possibility that MRT might conclude, on investigation of the facts, that the course for which the applicant was enrolled spanned 22 October 1999. If it came to that conclusion it would have to consider whether, taking into account all of the circumstances, there had been substantial compliance with Condition 8202 as at 22 October 1999. MRT would have to consider whether the fact (assuming it to be a fact) that the applicant was not then in breach of the condition, taken with other relevant circumstances, should lead to a conclusion of substantial performance. Whether no breach is equivalent to performance was not the subject of debate before me, and it is not appropriate for me to express any view as to the conclusions which MRT might reach if it formed the view that the course for which the applicant was enrolled extended beyond 22 October 1999. 27 The Minister's submissions as to futility were based upon the assumption that the course for which the applicant was enrolled was one scheduled to be completed during the period of the visa. On investigation of the facts, that may turn out to be so, in which case Nong's case is irrelevant and MRT's conclusion would stand. But I do not think that it can be said that as a matter of law, MRT could not come to any other conclusion, and it would be wrong for me to predict the likely conclusion, based on assessment of the probability, on what are essentially one or more questions of fact which should be decided by MRT. 28 The decision of MRT should be set aside, and the matter remitted to MRT, differently constituted, for determination according to law. The respondent should pay the costs of the application. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 21 November 2000 Solicitor for the Applicant: Mr M Jones Counsel for the Respondent: Mr S Lloyd Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 14 November 2000 Date of Judgment: 21 November 2000