FEDERAL COURT OF AUSTRALIA Modi v Minister for Immigration & Multicultural Affairs [2001] FCA 529 MIGRATION – student visa – review of decision of Migration Review Tribunal – whether condition of earlier visa "flouted" WORDS AND PHRASES – "flouted" "substantial compliance" Migration Act 1958 (Cth) ss 359A, 368, 476(1)(e) Migration Regulations 1994 (Cth) reg 560.213, Sch 2 cond 8202 Kim v Witton (1995) 59 FCR 258 followed Minister for Immigration and Multicultural Affairs v Singh [2000] 98 FCR 469 followed JAY MODI v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 994 OF 2000 HEEREY J 17 MAY 2001 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 994 OF 2000 BETWEEN: JAY MODI APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 17 MAY 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The decision under review is aside. 2. The application for review is remitted to the Migration Review Tribunal for further consideration according to law. 3. The respondent pay the applicant's costs to be taxed, including reserved costs. 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 V 994 OF 2000 BETWEEN: JAY MODI APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HEEREY J DATE: 17 MAY 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant seeks review under Pt 8 of the Migration Act 1958 (Cth) ("the Act") of a decision of the Migration Review Tribunal made on 29 November 2000 affirming the decision of a delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) Sub-class 560 visa. 2 The applicant made application on 15 March 2000 for this visa having received two earlier visas. One of the criteria (reg 560.213) required that, at the time of the application, "… 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." 3 The period of his last held visa was 5 February 1998 to 15 March 2000. 4 The relevant condition was that prescribed by 8202 in Sch 2: "The holder must satisfy course requirements." Evidence before the Tribunal 5 The applicant is a twenty-three year old citizen of India who arrived in Australia on 1 March 1997. A few days later he commenced studies for a Diploma of Marketing at Casey TAFE College. In the 1997 academic year he passed eight out of ten subjects. 6 On 26 December 1997 the applicant was seriously injured in a motor vehicle accident. He was taken to the Alfred Hospital and remained in a coma for some time. He underwent surgery to repair skull and facial fractures, a lacerated eyelid, a fractured ankle and the removal of an intestine. He was discharged from hospital on 9 January 1998 and required further prescribed medication and follow-up treatment. 7 In early 1998 the applicant changed to Chalmers Institute of TAFE ("Chalmers") and enrolled for an Associate Diploma of Business (Marketing). He attended classes at Chalmers for the first few months of the 1998 academic year but had difficulty in walking and looking after himself. He was unable to continue his studies and stayed at home most of the time. His brother came from India in January 1998 to care for him but returned in March. The applicant became depressed and lonely. 8 The applicant did not attempt examinations or written work in the first semester of 1998. In the second semester the situation remained the same. Although he continued to pay his tuition fees, he did not attend classes or complete any assignments. He did not inform Chalmers or the Immigration Department of his problems and did not seek leave of absence. 9 On 6 January 1999 he travelled to India and returned on 1 March. He attended some classes after his return but suffered continuing leg pain which was aggravated by another, but less serious, motor vehicle accident in April. He again became depressed and lost all interest in his studies. He failed to submit written work or attempt examinations. 10 On 27 July 1999 Chalmers wrote to him in these terms: "It appears from our records that you did not achieve satisfactory academic performance in Semester 1, 1999. In the past we have brought to your attention the importance of achieving academic results in order to satisfy your visa requirements. We must stress that the Department of Immigration is now also monitoring academic performance and it is your responsibility to ensure that you attend class and achieve results in Semester 2, 1999." 11 About this time he decided to change to a course in multi-media. He discussed his plans with the staff at Chalmers. Because the course was new and arrangements were not finalised he decided to wait until 2000 before commencing, although by this time he had largely recovered from his injuries and his psychological state was positive. 12 In 2000 his performance was much improved. In the first semester he passed all eight subjects undertaken and obtained three High Distinctions and three Distinctions. He was fulfilling attendance requirements and by the time of the Tribunal hearing (15 November 2000) he expected to pass all seventeen subjects undertaken in the second semester. He expected to complete the course in 7 December 2001 and begin a degree course in multi-media at Swinburne University in 2002. 13 On 7 June 2000 the Tribunal faxed Chalmers quoting the visa condition 8202 and asking for advice as to whether Chalmers considered the applicant had satisfied course requirements for the period 5 February 1998 to 15 March 2000. The Tribunal also enclosed letters from two staff members at Chalmers, Leah Verbyla and Nuneh Harut, which (presumably in relation to the 2000 academic year) recorded high attendance figures for him and described him as "very hardworking and conscientious". 14 By return fax on the same day Chalmers said: "Further to our conversation regarding Jay Modi he has not been meeting course requirements (specifically not attaining satisfactory attendance – 80%) between the 05/02/1998 to 03/12/1999. From the 7th of February, 2000 to the 14 th of May, 2000 Jay has been meeting course requirements including satisfactory attendance. In relation to the two letters from Leah and Nuneh at the time Jay was completing the subjects they have specified. If you have any further queries please do not hesitate to contact me. Regards Justine Williams Student Services Manager" 15 On 21 June the Tribunal wrote to the applicant enclosing a copy of the Chalmers fax of 7 June. The Tribunal's letter summarised the effect of s 359A of the Act and continued: "Particulars of the information and the reasons that the information is relevant to the review are as follows: Copy of Chalmer's Institute facsimile dated 7 June 2000 stating that the visa applicant has not satisfied course requirements. The above information does not include information that you gave the Tribunal for the purpose of the application, or information that, under the Migration Act, is non-disclosable. Relevance to affirming decision under review: That the visa applicant did not meet course requirements. … Section 359 of the Migration Act allows the Tribunal to invite a person to give additional information that it considers relevant to the review of a migration decision. The Tribunal invites you to comment on the following information: Visa applicant to advise what circumstances may have affected his studies during the period 5 February 1998 to 15 March 2000. You also have 35 days from the date of this letter to provide this information. …" 16 On 24 July the applicant went to the office of the Tribunal and asked for a further two weeks to provide the information requested under s 359. He submitted an interim statement of results from Chalmers dated 5 July 2000 and a freedom of information request for medical documents from the Alfred Hospital. 17 On 15 August the applicant's solicitors wrote to the Tribunal enclosing hospital records from the Alfred Hospital and stating, inter alia: "We … submit the further material in support of his claims that he was unable to attend all the classes in 1998 due to a road accident which left him partially disabled and unable to therefore continue or complete his studies at the time. He has been a regular student of the College after making a full recovery from his trauma. His College has provided the support material for 1999 including his reports which speaks for itself [sic]." Tribunal's decision 18 After reviewing the foregoing evidence and stating the relevant legislative requirements the Tribunal said: "23. In Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436 (12 November 1998) Katz J referred to the matters to be taken into account when deciding whether an applicant has complied substantially with a visa condition. These include the nature and significance of the breach, whether or not the applicant deliberately flouted the condition and, if the applicant failed to appreciate the breach of condition, what if anything had contributed to that failure, including whether the Department had misled the applicant. 24. In this case the nature and significance of the breach go to the basis of the purpose for which the student visa was granted, namely of attending and completing the course for which he was enrolled. In the relevant period of two academic years the visa applicant did not pass any subject and his attendance was listed as unsatisfactory by Chalmers, which was confirmed by the visa applicant at the hearing. The visa applicant was made aware by his education provider a number of times including July 1999 that his performance and attendance were not satisfactory. The breach might therefore reasonably be interpreted as flouting the conditions for which the visa was granted. There is no claim or evidence before the Tribunal that the Department misled the visa applicant at any time. 25. On the basis of the guidance provided in PAM 3 guidelines, circumstances beyond the control of a person would normally be illness or surgery. The visa applicant has provided documents from the Alfred Hospital relating to his admission and certain outpatient treatment in January and February 1998. There is no documentation regarding ongoing treatment required in the remainder of 1998 and in 1999. As agreed by the visa applicant at the hearing, there is no evidence of therapy or other counselling sought by him relating to depression or his psychological state during this period, and the visa applicant admitted that he did not seek leave of absence from Chalmers or notify Chalmers or the Department of the health problems that affected his ability to attend the course. 26. The Tribunal takes into account that in 1997 the visa applicant suffered serious injuries that required treatment after his discharge from hospital and that the injuries had an adverse effect on his studies. The Tribunal also notes that in the months after his discharge from hospital the visa applicant suffered pain and discomfort that prevented him from concentrating on his course. In the absence of family members to provide ongoing care and support, the depression suffered by the visa applicant is understandable. The Tribunal also acknowledges that the visa applicant has been able to perform well at his studies in his new course in 2000, although this course (apart form the first few weeks) is outside the relevant visa period. 27. Despite his health problems at the beginning of 1998 the visa applicant had ample opportunity to seek assistance and understanding from Chalmers and the Department. His depression and pain may have contributed to a lack of response to the numerous reminders and warnings from Chalmers, but he was well enough to travel to India on 3 May 1998 [sic – it may be the visit to India was in 1999] for a three-week visit, and his eventual recovery from his injuries was such that he should have taken some action to resume his studies in 1998 or 1999 or to seek leave of absence. The Tribunal takes into account that by the end of first semester 1999 the visa applicant was ready to resume his studies, but decided not to pursue his course in marketing because he wanted to wait for the beginning of 2000 to change to multimedia studies. 28. On the basis of the visa applicant's poor attendance and academic history in 1998 and 1999, the advice from the education provider about the failure to meet course requirements and the lack of medical or other evidence to support the claims by the visa applicant that he was unable to study for most of that period, the Tribunal finds that the breach of condition 8202 was significant and that the visa applicant appreciated the breach. 29. Taking all relevant circumstances into account the Tribunal finds that, in applying the test in Baidakova, the visa applicant has not complied substantially with condition 8202 of his visa." Authorities on substantial compliance 19 The case of Baidakova referred to by the Tribunal followed an earlier decision of Sackville J in Kim v Witton (1995) 59 FCR 258. In the latter case the relevant issue on review was whether the applicant had complied substantially with a condition of a tourist visa which prohibited him from working in Australia. The applicant, who was a cartoonist and illustrator from Korea, provided some graphic art work for the New South Wales Department of Education in respect of which he was reimbursed for expenses. The applicant's explanation, which was apparently accepted by the Tribunal, was that he thought that since he was doing work for a government it had the power to override the work restriction on his visa. He did not realise that there were different governments in Australia and that he was helping a State government in contrast to the Federal Department of Immigration. Sackville J (at 271) noted that the Tribunal had accepted the principles in an earlier Tribunal decision Re Resekido that in determining the question of substantial compliance it was appropriate to take into account the "proportionality" of the breach and the bona fides (or lack of bona fides) of the applicant. Sackville J thought that that statement was "broadly correct". His Honour went on to say (at 271): "In my opinion, in determining whether an applicant has complied substantially with a condition imposing a prohibition, the Tribunal should consider the relevant circumstances of the case. Without being exhaustive, these include: · the nature of the breach of condition; · the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted; · whether or not the applicant deliberately flouted the condition; and · if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant. In general, it is a matter for the Tribunal to assess the weight to be accorded to these factors, having regard to the circumstances of the case. As Lee J said in Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 374, the object of s 5(3) of the ADJR Act (equivalent to s 476(4) of the Migration Act) is to limit the operation of s 5(1)(h) (equivalent to s 476(1)(g)), 'and in particular to ensure that it [does] not provide a grant of review based on examination of the sufficiency of the evidence.' The mere fact that an applicant did not appreciate that his or her conduct breached a condition does not necessarily establish that he or she had complied substantially with that condition." 20 I now turn to the grounds advanced by counsel for the applicant. Ground 1 – required procedures – s 359A 21 Under s 476(1)(a) of the Act it is a ground of review that procedures that were required by the Act or Regulations to be observed in connection with the making of a decision were not observed. It is said there was non-compliance with s 359A which provides: "(1) Subject to subsection (2), the Tribunal must, (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) Subject to subsection (3), the invitation must be given to the applicant by one of the methods specified in section 379A. (3) Subsection (2) does not apply if the applicant is in immigration detention because of: (a) a decision to refuse to grant him or her a bridging visa; or (b) a decision to cancel his or her bridging visa. (4) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information." 22 It was said that the Tribunal in its letter of 21 June 2000 to the applicant did not set out particulars of the information concerning the applicant's medical history, that being relevant to affirming the decision under review, and did not set out particulars in sufficient detail to ensure that he understood the relevance of Chalmers' fax of 7 June. 23 However the Tribunal was not required to give the applicant particulars of information concerning his history, this being information given by the applicant himself: s 359A(4)(b). In any event, the Tribunal expressly invited the applicant to comment on circumstances which may have affected his studies during the relevant period and this would obviously include his medical condition. Ground 2 – required procedures – s 368 24 Section 368(1)(c) requires the Tribunal to prepare a written statement setting out its findings on any material question of fact. It was said that the Tribunal was required to make findings as to the applicant's medical condition or his capacity to comply with condition 8202. The materiality of these things were a matter for the Court: Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469. 25 But to the extent that medical conditions were relevant, the Tribunal did make findings of fact. The following findings appear from the Tribunal's reasons: · pain and discomfort prevented the applicant from concentrating on his course "in the months after his discharge from hospital" · he suffered depression because of the absence of the absence of family members · the applicant was well enough to travel to India on 3 May 1998 (it seems this should be 6 January to 1 March 1999) · by the end of the first semester 1999 the applicant was "ready to resume his studies" · there was a lack of medical or other evidence to support claims that he was unable to study for most of the relevant period. Ground 3 – error of law – ascertaining course requirements 26 It was argued that the Tribunal failed to ascertain the requirements of the course and was unable to properly assess the compliance with condition 8202. 27 In my opinion the Tribunal obtained information from the appropriate source, that is Chalmers. Ground 4 – error of law – "complied substantially" 28 The meaning given by the Macquarie Dictionary for "flout" as a transitive verb is "to mock; scoff at; treat with disdain or contempt". Similarly the Shorter Oxford gives the meaning "to mock, jeer, insult; to express contempt for". But a reading of par 24 of the Tribunal's decision quoted above indicates that the Tribunal has taken "flouting" as synonymous with acting knowingly or intentionally. There is a substantial difference between the two concepts. Clearly enough it was open on the evidence for the Tribunal to find that the applicant knew that for much of the relevant period he was not satisfying the course requirements at Chalmers and that that was a breach of his visa condition. But the Tribunal seems to have attributed a more serious level of breach to the applicant by misunderstanding the concept of flouting and using a finding that he flouted the condition as part of its reasoning process to arrive at a conclusion that there was not substantial compliance. 29 I conclude therefore that the Tribunal has misapplied the law and the ground specified in s 476(1)(e) is made out. Orders 30 The decision under review will be set aside and the application for review remitted to the Tribunal for further consideration according to law. There will be an order that the respondent pay the applicant's costs to be taxed, including reserved costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 17 May 2001 Counsel for the Applicant: Mr C Dowling (pro bono) Counsel for the Respondent: Mr C Horan Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 April 2001 Date of Judgment: 17 May 2001