FEDERAL COURT OF AUSTRALIA Shrestha v Minister for Immigration and Multicultural Affairs [2001] FCA 871 MIGRATION – Review of decision of Migration Review Tribunal – refusal to grant Student (Temporary) (Class TU) visa, subclass 560 – error of law – interpretation of subclause 560.212(2)(b) of Sch 2 of Migration Regulations 1994 – no documents capable of meeting description of those required placed before Tribunal – whether Tribunal erred in law in failing to engage in speculation as to documents "given" WORDS AND PHRASES – "documents relevant to the establishment of the applicant's eligibility for the grant of the substantive visa applied for were given…to an Australian educational institution before the expiry of the substantive visa…" Migration Act 1958 (Cth) Pt 8 Migration Regulations 1994 Sch 2, cls 560.211, 560.212(1A), (2), (3), (4), or (5) ANIL SHRESTHA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V439 of 2000 WEINBERG J 9 JULY 2001 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V439 OF 2000 BETWEEN: ANIL SHRESTHA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: WEINBERG J DATE OF ORDER: 9 JULY 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's 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 V439 OF 2000 BETWEEN: ANIL SHRESTHA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: WEINBERG J DATE: 9 JULY 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an application under Pt 8 of the Migration Act 1958 (Cth) ("the Act") to review a decision of the Migration Review Tribunal ("the Tribunal") made on 25 May 2000. By that decision the Tribunal affirmed a decision by a delegate of the respondent to refuse the grant of a Student (Temporary) (Class TU) visa, subclass 560 ("the visa") to the applicant. The applicant claims that he meets the requirements for the grant of the visa. He faces deportation if his claim fails. Background 2 The applicant arrived in Australia from Nepal as the holder of a Student (Temporary) (Class TU) Visa, subclass 560 on 19 July 1996. The visa authorised his stay in this country until 30 July 1998. He initially enrolled for a Diploma of Hospitality at the Northern Melbourne Institute of TAFE ("NMIT"). He transferred to a Marketing Business course at City College in January 1997. As might be expected, the visa was subject to a condition which required the applicant to "satisfy course requirements". 3 In May 1997, City College advised the Department of Immigration and Multicultural Affairs that the applicant's enrolment had been cancelled because of his failure to satisfy course requirements, and specifically because of non-attendance. 4 On 15 October 1997 the visa was cancelled. On 23 October 1997 the applicant lodged with the Immigration Review Tribunal ("IRT") an application to review the cancellation decision. He was granted a bridging visa E pending the outcome of that application. The IRT heard the application on 2 February 1998 but, inexplicably, did not deliver a decision for over fourteen months, until 8 April 1999. The IRT set aside the decision to cancel the visa. Unfortunately, the visa had been due to expire on 30 July 1998 in any event. 5 On 13 July 1999 the applicant lodged an application for a further Student (Temporary) (Class TU) Visa, subclass 560 based upon his enrolment in a two year Bachelor of Tourism Degree course at Central Queensland University's Melbourne International Campus ("CQU"). He commenced that course in February 1999. On 21 July 1999 that application was refused by the delegate. On 10 August 1999 the applicant sought review of that decision with the Tribunal. 6 The proceedings before the Tribunal extended over a period of some months. In substance, the applicant's position was that his original intention in coming to Australia had been to study at NMIT. He claimed that he had transferred to City College in January 1997 because the course at NMIT had been "too basic". The marketing business course at City College had also failed to meet his expectations, and he had not attended regularly. After consultation with his parents he had transferred back to NMIT in July 1997. He said that he completed his course there in 1998. He had failed some subjects, and was not permitted to graduate unless he completed a further six months study. However, he had decided instead to enrol in the course at CQU. He said that his results at CQU as at April 2000 consisted of three passes, two pass considerations (marks between 45 and 49) and three fails. He had also withdrawn from three subjects. He said he would have to repeat the subjects he had failed, but they were only elective, and not core subjects. 7 The applicant told the Tribunal that he had enrolled at CQU in February 1999. He said that he had completed his involvement with NMIT by the end of 1998. He said that he could not apply for a new visa before his original visa expired on 30 July 1998 because he had been waiting for the IRT to make a decision in relation to the cancellation of his original visa. When the cancellation decision was finally set aside in April 1999, he thought he would be eligible to apply for a new student visa. He did so in July 1999. He said that he had paid all his semester fees and wished to complete his course at CQU. He then wished to return to Nepal to assist his uncle in his hotel business. the relevant legislative regime 8 The Act (as amended) and the Migration Regulations 1994 ("the Regulations") provide for different classes of visa. Policy guidelines are an aid to the interpretation and application of the prescribed criteria for these visas. Most policy guidelines are set out in the Procedures Advice Manual ("PAM3") issued by the Department. 9 The relevant legislation and policy in force at the time the applicant applied for the visa were clause 560.212 of Sch 2 of the Regulations and the PAM3 Guidelines. the tribunal's FINDINGS 10 The Tribunal noted that in order for the applicant to succeed in obtaining the visa, he was required to satisfy the criteria specified in the Act and Regulations. Clause 560.211 of Sch 2 prescribes those criteria which must be satisfied at the time of application. 11 Clause 560.212 requires an applicant for a visa to meet the requirements of any one of subclauses (1A), (2), (3), (4), or (5). As the applicant did not hold a Student (Temporary) (Class TU) visa, subclass 560 as at 13 July 1999 (the date of the application for the visa the subject of review) he could not meet subclauses 560.212(1A), (4) or (5). 12 Subclause 560.212(3) applies to an applicant who is not the holder of a substantive visa at the time of application, and who last held a substantive visa that was a Student (Temporary) visa (or a number of other visas) and had lodged a visa application within 28 days of the expiry of that last substantive visa: see Sch 2, criteria 3001 and 3005. The Tribunal correctly held that as the applicant did not lodge his application for a new visa within 28 days of the expiry of his original visa on 30 July 1998, he could not meet the requirements of subclause 560.212(3)(b). 13 The Tribunal then considered the operation of subclause 560.212(2). That subclause provides: "(2) An applicant meets the requirements of this subclause if: (aa) the applicant is not the holder of a substantive visa; and (a) the last substantive visa held by the applicant was a Student (Temporary) (Class TU) visa; and (b) documents relevant to the establishment of the applicant's eligibility for the grant of the substantive visa applied for were given to Education or to an Australian educational institution before the expiry of the substantive visa mentioned in paragraph (a); and (c) the application is made within 12 months of the expiry of that visa." 14 The Tribunal found that the applicant met the requirements of pars (aa), (a) and (c) of the subclause. It found that he did not meet the requirements of par (b). The applicant had submitted that he had met the requirements of par (b) because he had given documents of the type therein described to NMIT and City College prior to 30 July 1998. That submission was rejected. The Tribunal observed that the documents must be "relevant to the establishment of the applicant's eligibility for the grant of the substantive visa applied for". The "substantive visa applied for" on 13 July 1999 was one based entirely upon his enrolment at CQU in February 1999. His application was not based on his prior enrolment at NMIT which had ceased in 1998. It followed, so the Tribunal held, that the applicant could not rely upon his enrolment with NMIT to meet the criteria in par (b). 15 The Tribunal expressed some sympathy for the applicant's predicament which, it noted, had been brought about, in part, by the dilatoriness of the IRT in having failed to determine his application to review the decision to cancel his original visa in a timely manner. However, the Tribunal said that it could not ignore the criteria in par (b). The applicant did not meet that requirement of the subclause. The applicant's case on review in this court 16 The applicant contended that the decision under review involved an error of law, within the meaning of s 476(1)(e) of the Act. He submitted that the Tribunal had failed properly to interpret subclause 560.212(2)(b) in that: (a) it wrongly excluded as relevant the documents submitted to NMIT prior to the expiry of the last substantive visa held by him; (b) it misinterpreted the term "relevant" in par (b); (c) implicitly it wrongly treated par (b) as foreclosing the lodgement of documents relevant to the establishment of eligibility for the substantive visa applied for after the expiry of the substantive visa last held by the applicant; (d) it wrongly treated the subclause as requiring that all documents relevant to the establishment of the applicant's eligibility be given before the expiry of the substantive visa last held by the applicant; and (e) it misunderstood the meaning of par (b) by imposing a requirement that in order for documents to be "relevant" they had to relate to an institution at which an applicant was enrolled at the time he made the application for a substantive visa. 17 The applicant submitted that par (b) should not be given the narrow interpretation accorded it by the Tribunal. There was nothing in par (b) which suggested that in order to meet the criteria set out therein the documents "relevant to the applicant's eligibility for the grant of the substantive visa applied for" had to have been given to the Australian educational institution in which the applicant was then enrolled (or at which he proposed to enrol) at the time he made the application. Indeed, the language of par (b) spoke of "an Australian educational institution", not "the Australian educational institution enrolled in". The Regulations should not be construed inflexibly. 18 The Applicant submitted that it must have been known to those responsible for drafting the Regulations that overseas students do, from time to time, change their enrolments from one institution to another. Indeed there were conditions within the Regulations which contemplated exactly that situation. The interpretation adopted by the Tribunal would invalidate the application of a person who had applied for a further visa based upon his or her enrolment at one institution who then changed that person's enrolment after lodging the application, and after expiry of the earlier substantive visa. That result could not have been intended. 19 The applicant further submitted that it was plain, as a matter of common sense, that documents which undoubtedly would have satisfied the requirements of par (b) (had the applicant remained at NMIT) must have been given to that institution prior to the expiry of his original visa on 30 July 1998. The Tribunal had erred in law in failing to treat documents of that type which, though not tendered, must have existed, as meeting the requirements of par (b). 20 The applicant submitted that par (b) required only that the documents that had been supplied be "relevant" to the establishment of eligibility. "Relevance" in that context was a broad concept. On any view, documents relating to the applicant's previous enrolments at institutions in Australia which were given to NMIT and City College were "relevant" to the establishment of his eligibility for the further substantive visa applied for. Documents of that type provided to NMIT (or City College) had a bearing upon the applicant's eligibility as they were relevant to his bona fides, and relevant also to his ability to complete his studies satisfactorily. 21 Finally, it was submitted that par (b) did not require that all documents which met the requirements of that provision be given to an Australian educational institution prior to the expiry of the original substantive visa. It was sufficient that some such documents be provided. In a case where there had been a series of enrolments culminating in the enrolment in February 1999 at CQU, documents which were "part of the chain" of those enrolments were capable of meeting the relevant requirements. the respondent's case on review in this court 22 The respondent submitted that the Tribunal had not erred in finding that any documents lodged with NMIT prior to 30 July 1998 did not meet the requirements of par (b). The applicant's enrolment at NMIT had ceased in 1998. There was nothing to suggest that he had "given" any documents to anyone, prior to 30 July 1998, which related to his enrolment at CQU. He did not, therefore, meet the requirements of par (b). 23 The respondent submitted that the applicant's original visa had been granted to him upon the basis that he would enrol in a Diploma of Hospitality course at NMIT. Although a decision was taken on 15 October 1997 to cancel that visa, and that decision was subsequently set aside by the IRT on 8 April 1999, the applicant had only ever been authorised to remain in this country until 30 July 1998. The application which he made for another student visa on 13 July 1999 was based entirely upon his enrolment in a Bachelor of Tourism degree course at CQU. Whatever documents he may have given to NMIT prior to 30 July 1998 had nothing to do with that subsequent application, and did not meet the criteria set out in par (b). 24 The respondent challenged the applicant's assertion that documents of the type required by par (b) "must have" been "given" to NMIT prior to the expiry of the original visa. It was not clear what documents had been lodged with NMIT prior to 30 July 1998. None had been produced by the applicant. The only documents in the bundle relied upon as meeting that description which was tendered to the Tribunal and which were dated prior to 30 July 1998 were a series of NMIT receipts for fees. There was nothing to suggest that those receipts (which emanated from NMIT) had been "given" to that institution, or to any other educational institution, and no reason to think that they had. Documents of that character could not conceivably have satisfied the requirements of par (b). 25 The respondent submitted that the Tribunal's finding that the documents submitted to it were not "relevant to the establishment of eligibility for the visa applied for" was a finding of fact based on the documents referred to. As such, that finding was not reviewable in this Court. 26 The respondent also developed a somewhat elaborate submission relating to the construction of par (b). It was submitted that par (b) could be divided into three aspects. Documents given must be: · relevant to the establishment of eligibility for a visa; · relevant to the grant of the substantive visa applied for; and · given to the appropriate place before the expiry of the student visa. 27 The respondent submitted that eligibility required evidence of current enrolment in a course. Thus, each visa was based on and required the applicant's status as a student at the time of the application and during the life of the visa. In support of that contention, the respondent submitted: · criteria to be satisfied at time of decision for all subclass 560 student visas included evidence of enrolment in a certain course or of the need to stay in Australia in connection with a course (subclause 560.222); · criteria for such visas included the Minister's satisfaction that the student intended to comply with any conditions which were attached to the visa (subclause 560.224(1)(c)); · enrolment in a registered course was a condition in relation to all subclass 560 student visas (subclause 560.611 (1)(a)(i)); condition 8202); · changes in enrolment were controlled in all subclass 560 student visas (subclause 560.611(1)(a)(iii) and 560.611 (1A)(1) condition 8206). 28 The respondent submitted that for a document to be "relevant" to the "establishment of eligibility" for a visa, the document must bear upon the question of eligibility itself. Otherwise the expression "establishment of eligibility" had no work to do. The word "relevant" could not be interpreted without reference to the context in which that word appeared. 29 The respondent submitted that it would make no sense to set out an eligibility criterion – failure to satisfy which would lead to ineligibility for the visa – which could be satisfied by reference to some peripherally related act such as the lodgement of documents connected to the application only in some historical sense, or documents evidencing enrolment in a previous course. Equally it would make no sense for documents relevant to eligibility for a previously expired visa to have to be lodged prior to the expiry of that same visa. Eligibility for that previous visa would already have been determined pursuant to the criteria set out elsewhere in the legislation. Also it would make no sense for documents to be required to be lodged with "Education or to an Australian educational institution" if those documents were not documents of a kind normally required by those institutions for enrolment purposes. 30 The respondent submitted that "the substantive visa applied for" must mean the visa application under consideration, and could not mean any past visa which had already been granted. Subclause 560.212(2)(b) contained two different phrases: "grant of the substantive visa applied for" and "expiry of the substantive visa mentioned in paragraph (a)". As these two phrases were different, they must be interpreted to refer to different visas. The "substantive visa applied for" could not sensibly be interpreted to mean the expired visa. Conclusion 31 The Tribunal was not satisfied that any documents which met the requirements of par (b) had been given to an Australian educational institution before the expiry of the substantive visa. In my view, that finding was plainly open to the Tribunal. Indeed, it is difficult to see how it could have arrived at any other conclusion. 32 The documents specifically relied upon by the applicant as meeting the requirements of par (b) were a series of receipts for enrolment fees paid to NMIT. There was no evidence to suggest that those receipts were given to any institution before 30 July 1998. Given their nature, it was inherently unlikely that this had occurred. However, even if it could be assumed that the invoices had been given to NMIT (or City College) prior to that date, there was nothing to suggest that these documents were relevant to the establishment of the applicant's eligibility for a subsequent, unrelated, visa. 33 It would have been wrong for the Tribunal to have engaged in speculation or conjecture regarding what other documents might have been given to NMIT, or City College prior to 30 July 1998. It was for the applicant to satisfy the Tribunal that the requirements of par (b) had been met. It lay within his power to obtain and provide copies of any documents which he claimed met those requirements. It was his obligation to place them before the Tribunal. His failure to do so results in a failure to meet the requirements of the subclause. 34 Even if the Tribunal erred in finding that the invoices relied upon did not constitute documents of the type required, an error of that kind would seem to be an error of fact and not an error of law. Errors of that type are not ordinarily reviewable in this Court. 35 The applicant failed to satisfy the Tribunal that documents of the type referred to in par (b) had been given to an Australian educational institution prior to the expiry of his original visa. He failed in part at least because he identified no documents which could meet that description. That meant that he did not meet one of the requirements for the grant of the visa sought. Whatever merit there might be in the applicant's submissions regarding the proper construction of par (b) (and I expressly refrain from determining that issue) he cannot avoid the consequences of his failure to place before the Tribunal any material capable of satisfying the requirements of that provision. 36 The Tribunal correctly rejected the application for the visa sought. 37 It follows that the application must be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 9 July 2001 Counsel for the Applicant: Mr J Gibson Solicitor for the Applicant: Frank Sabelberg Counsel for the Respondent: Ms F McKenzie Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 9 July 2001 Date of Judgment: 9 July 2001