FEDERAL COURT OF AUSTRALIA Sherpa v Minister for Immigration & Multicultural Affairs [2001] FCA 1033 MIGRATION – Student (Temporary) (Class TU) (Subclass 560) visa – application for review of decision of Migration Review Tribunal affirming decision applicant not entitled to grant of such visa – finding of failure to comply substantially with work condition of immediately preceding visa – whether Tribunal relied on condition introduced into Regulations after that immediately preceding visa issued rather than condition in force at time when it issued – whether Tribunal relied on conditions of visas earlier than those of immediately preceding visa – relevance of such earlier conduct to deliberateness of breach of condition of immediately preceding visa Migration Regulations 1994 (Cth), Sch 2, item 560.213; Sch 8, items 8105, 8202 Pradhan v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 91 cited Kim v Witton (1995) 59 FCR 258 cited Baidakova v Minister for Immigration & Multicultural Affairs (FCA/Katz J, 12 November 1998, unreported) cited PEMBA SHERPA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 985 OF 2001 LINDGREN J 30 JULY 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 985 OF 2001 BETWEEN: PEMBA SHERPA APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE OF ORDER: 30 JULY 2001 WHERE MADE: SYDNEY 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 NEW SOUTH WALES DISTRICT REGISTRY N 985 OF 2001 BETWEEN: PEMBA SHERPA APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE: 30 JULY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT introduction 1 The applicant ("Mr Sherpa"), a national of Nepal, who was born on 1 April 1973, seeks review of a decision of the Migration Review Tribunal ("the Tribunal") given on 21 June 2001 affirming a decision of a delegate of the respondent (respectively "the Delegate" and "the Minister") that Mr Sherpa was not entitled to the grant of a Student (Temporary) (Class TU) Subclass 560 visa. By his amended application for an order of review filed in Court on the hearing, Mr Sherpa relies on par 476(1)(e) of the Migration Act 1958 (Cth) ("the Act") (error of law) and par 476(1)(c) of the Act (that the Tribunal's decision was not authorised by the Act or the regulations). LEGISLATION 2 I will outline the relevant legislative provisions, but only to the extent to which they are relevant. Subsection 29(1) of the Act, by par (b), empowers the Minister to grant a non-citizen permission, to be known as a visa, to remain in Australia. Section 30 provides that a visa to remain in Australia may be a permanent visa or a temporary visa. The visa for which Mr Sherpa applied was a temporary visa. 3 Section 31 provides in subs (1) that "[t]here are to be prescribed classes of visas", in subs (3) that the "regulations may prescribe criteria for a visa or visas of a specified class" (my emphasis), and in subs (5) that a visa is a visa of a particular class if the Act or the regulations so specify. Subsection 40(1) provides: "The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances" (my emphasis). Subsection 41(1) provides: "The regulations may provide that visas, or visas of a specified class, are subject to specified conditions" (my emphasis). 4 Section 65 provides that "after considering a valid application for a visa, the Minister", "if satisfied" of certain things specified in the section, "is to grant the visa", or, "if not so satisfied, is to refuse to grant the visa". One of the things specified is that the "criteria" for the visa prescribed by the regulations have been satisfied. 5 Section 475 provides that certain decisions are, and other decisions are not, "judicially-reviewable decisions". By virtue of par 475(1)(a), a decision of the Tribunal is a judicially-reviewable decision. Section 476 provides that application may be made for review by this Court of a judicially-reviewable decision on any one or more of the grounds specified in subs 476(1). These grounds include the two on which Mr Sherpa relies to which I referred earlier. 6 Section 485 provides that this Court does not have any jurisdiction in respect of judicially-reviewable decisions other than the jurisdiction provided by Part 8 of the Act (comprising ss 474 to 486) or by s 44 of the Judiciary Act 1903 (Cth), while s 486 provides that this Court "has jurisdiction with respect to judicially-reviewable decisions" and that "that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under s 75 of the Constitution". 7 Division 2.1 of the Migration Regulations 1994 (Cth) ("the Regulations") provides for classes, criteria and conditions of visas as well as other matters. Regulation 2.01 provides that for the purposes of s 31 of the Act, the prescribed classes of visas are, inter alia, the classes set out in the respective items in Schedule 1 to the Regulations. Regulation 2.02 provides in subreg (1) that Schedule 2 to the Regulations is divided into Parts, each identified by the word "Subclass" followed by a 3-digit number (being the number of the subclass of visa to which the Part relates) and the title of the subclass. (This case is concerned with a Student Visa subclass 560.) Regulation 2.03 provides that for the purposes of subs 31(3) of the Act, the prescribed "criteria" for the grant to a person of a visa of a particular class are the "primary criteria" and, if relevant, the "secondary criteria" set out in a relevant Part of Schedule 2. Regulation 2.04 provides that for the purposes of s 40 of the Act, the only "circumstances" in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part of Schedule 2. Regulation 2.05 provides, inter alia, that for the purposes of subs 41(1) of the Act, the "conditions" to which a visa is subject are the conditions (if any) set out in, or referred to in, the Part of Schedule 2 that relates to visas of the subclass in which the visa is included. 8 Within Schedule 1 to the Regulations is item 1222 "Student (Temporary) (Class TU)". Within Schedule 2 to the Regulations, Subclass 560 is headed "Student". Items 560.211 to 560.213 within Subclass 560 set out "Criteria to be satisfied at time of application" for a student visa. Of these, item 560.213 reads as follows: "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." Items 560.220 to 560.231 set out "Criteria to be satisfied at time of decision". Of these, item 560.227 provides: "If the application is made in Australia, the applicant continues to satisfy the criterion in clause 560.213." 9 The ground on which the Tribunal affirmed the Delegate's decision was that neither at the time of his application for the visa (of item 560.213) nor at the time of the decision on it (of items 560.227 and 560.213), did Mr Sherpa comply substantially with the conditions to which a student visa held or last held by him is or was subject. 10 Item 560.6 sets out "conditions" to which visas are subject. Of relevance to the present case are conditions 8105 and 8202. Condition 8105 is set out in Schedule 8 to the Regulations and was, at all relevant times, as follows: "The holder must not engage in work in Australia (other than in relation to the holder's course of study or training) for more than 20 hours a week during any week when the institution at which the holder is studying is in session." 11 Condition 8202 currently provides as follows, but as will be noted below, it was in a different form at the time when Mr Sherpa applied for the visa in question: "The holder must: a) be enrolled in a registered course; and b) attend at least 80 per cent 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. (my emphasis) FACTS 12 The chronological sequence of events can be summarised as follows: 1. On 15 February 1994 Mr Sherpa was granted his first student visa, a Category B student visa, to study for a Certificate in Computer Applications and Office Administration at Hurlstone Marrickville Business College. 2. On 24 February 1994 Mr Sherpa entered Australia on that visa which was valid until 23 February 1995. 3. On 23 February 1995 Mr Sherpa was granted a second student visa, valid until 27 March 1997, this time to study for an Associate Diploma of Business (Small Business) at Hurlstone Marrickville Business College. 4. On 27 March 1997 Mr Sherpa was granted a third student visa, valid until 5 June 1998, to study for a Certificate II in Tourism at Hurlstone Marrickville Business College. 5. On 23 June 1998 Mr Sherpa was granted a fourth student visa, valid until 10 July 2000, to study for a Diploma of Information Technology at Skywell College (apparently he undertook a Diploma of Management at Skywell College instead). 6. On 7 July 2000, that is, some three days before his fourth student visa was due to expire, Mr Sherpa lodged an application for a fifth student visa to study for a Diploma of Management at Skywell College. 13 At the time of his application on 7 July 2000 for the fifth student visa, Mr Sherpa was the holder of the fourth student visa which had been issued to him on 23 June 1998 and which still had some three days to run. Accordingly, by reason of item 560.213 noted earlier, a criterion to be satisfied by Mr Sherpa was that he had complied substantially with the conditions subject to which that fourth student visa was held. 14 On 25 October 2000 the Delegate refused to grant the application for the fifth visa. By that date the fourth visa had, of course, expired. But the effect of item 560.227 and 560.213 was that it was also a condition to be satisfied at the time of the decision on his application that Mr Sherpa had complied substantially with the conditions to which the visa last held by him, that is, the fourth visa granted on 23 June 1998, had been subject. my REASONing on THE present application 15 The Tribunal noted that the Delegate had refused the application for the fifth visa on the ground that Mr Sherpa had not substantially complied with condition 8105 since December 1999 and condition 8202 since June 2000. That is, the Tribunal was noting that the Delegate had refused to grant the visa because Mr Sherpa had breached those conditions of the fourth student visa issued on 23 June 1998. The Tribunal also noted that the Delegate considered that Mr Sherpa was not a genuine student. 16 In its reasons for decision the Tribunal referred to the attendance record of Mr Sherpa at Skywell College. It did so by reference to condition 8202 (set out at [11] above). Unfortunately its reasons for decision set out only part of that condition, although it seems clear that they were intended to set out the whole of it. What is important for present purposes is that, as at 23 June 1998, the date of issue of the fourth student visa, condition 8202 had not been in the form to which the Tribunal was directing its attention. At that time, condition 8202 had read simply as follows: "The holder must satisfy course requirements." In Pradhan v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 91, Gyles J held that it was the condition in force at the time of the issue of a visa to which regard was to be had for the purposes of item 560.213 (in that case a decision to cancel a visa, rather than a refusal to grant one, was based on a supposed failure to comply with condition 8202). 17 It was in the "Evidence" part of its reasons for decision that the Tribunal purported to set out condition 8202 and referred to certain details of Mr Sherpa's poor record of attendance at the Skywell College. But in its "Findings", the Tribunal found that Mr Sherpa had not substantially complied with condition 8105 and said expressly that it did not intend to address the other criteria relevant to the grant of a student visa. Mr Diab, the solicitor for Mr Sherpa, has referred me to the references in the reasons for decision to the attendance record of his client, to a letter which the Tribunal wrote to Mr Sherpa on 3 May 2001 seeking additional information, including a record of his attendance at Skywell College issued by that College, and a letter dated 3 May 2001 from the Tribunal to Mr Sherpa inviting specific comment from him in relation to an attendance record from Skywell College indicating an attendance rate of 42 per cent for the period 9 June 2000 until 26 July 2000 and 51 per cent for the period June 1998 until June 2000. But the fact remains that the Tribunal made no finding in relation to unsatisfactory attendance, and, in substance, disclaimed reliance on that matter. 18 The Tribunal's reference to evidence relating to attendance is explicable by reference to matters other than reliance on the repealed condition 8202. For example, it is explicable as part of the total background against which the breach of condition 8205 was to be assessed. Further, as Mr Johnson of counsel for the Minister submits, it is also explicable by reference to evidence given before the Tribunal by Mr Sherpa's partner, Ms Rosleen Singh, to the effect that Mr Sherpa's breach of "the work condition" (8105) should not count against a student who attends the educational institution and meets course requirements. 19 I am not persuaded that the Tribunal's reference to the superseded condition 8202 played any part in its decision making process. 20 I turn now to condition 8105. The Tribunal was required to consider a breach of that condition as that condition was one on which the fourth student visa issued on 23 June 1998, valid until 10 July 2000, was held. Mr Sherpa submits that the Tribunal erred by considering breach of that condition as a condition on which earlier student visas had been held by him. 21 The first response to be made to this submission is that the Tribunal referred in some detail to evidence that Mr Sherpa had worked more than 20 hours per week since 23 June 1998. In par 16 of its reasons, the Tribunal set out the number of hours worked during 10 pay periods of one week each, covering the pay periods ending 27 March 2000 to 26 June 2000. In each of those 10 pay periods, the number of hours worked exceeded 20, and in the last four of them the hours worked were 27.73 hours, 25.14 hours, 29.04 hours and 50.56 hours. 22 In par 18 of its reasons the Tribunal noted that the Delegate stated that the payroll section of Kentucky Fried Chicken at Five Dock advised that Mr Sherpa had been working on an average around 30 hours per week for the preceding three to four months – apparently a reference to a period in the year 2000, perhaps from June or July to October 2000, and had been undertaking "Management Training" with that company. This evidence also related to the period of the fourth visa. 23 Mr Sherpa himself acknowledged, both in writing and orally before the Tribunal, that he had been exceeding the 20 hours per week permitted during term time, saying that he worked "sometimes 22 to 23 per week" during term time in 1995, "up to 25 hours per week" during term time in 1996, and "anything from 25 to 30 hours a week" during term time in "1997 through to 1999". This last period partly covers the period since 23 June 1998, the date of issue of the fourth visa. 24 The complaint made by Mr Sherpa is that in its reasons the Tribunal referred to the fact that he had exceeded 20 hours per week in respect of times earlier than 23 June 1998. It is true that the Tribunal did so. For example, in par 17 of its reasons it referred to a file note (although the Tribunal does not say so, the note was dated 5 July 2000) indicating that anonymous information was received that Mr Sherpa had been working full time at Kentucky Fried Chicken at Five Dock "for the last five years". The Tribunal observed that, according to the note, the allegation was that he had commenced that employment on 7 June 1995 and had converted to part-time work (the note, dated 5 July 2000, in fact stated that the conversion to part-time work had occurred only three weeks earlier) with the intention of lodging an application for a new student visa (as noted earlier, Mr Sherpa lodged that application on 7 July 2000). 25 In my opinion, the Tribunal was referring to earlier instances of an exceeding of the 20 hours per week merely by way of assessing the significance of Mr Sherpa's breach of the work condition during the period of the fourth visa. It was said in Kim v Witton (1995) 59 FCR 258 at 270-272 per Sackville J and accepted in Baidakova v Minister for Immigration & Multicultural Affairs (FCA/Katz J, 12 November 1998, unreported), that in determining whether there has been substantial compliance with a condition it is appropriate to consider whether or not an applicant has "deliberately flouted the condition". The Tribunal in the present case referred expressly to Mr Sherpa's having "deliberately flouted the visa condition", and to the breach of condition 8105 as having been "a deliberate and persistent breach and a serious breach of the conditions attached to [Mr Sherpa's] visa". 26 I am not persuaded that the Tribunal intended to find a breach of condition 8105 as that condition was one subject to which one or more of the first, second or third student visas were held. Rather, I think that the Tribunal referred to the period of time preceding the issue of the fourth visa on 23 June 1998 for the purpose of characterising as "deliberate" the breach of that condition as a condition subject to which that fourth student visa was held. conclusion 27 For the above reasons the application will be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren . Associate: Dated: 3 August 2001 Solicitor for the Applicant: Mr Simon Diab of Simon Diab & Associates Counsel for the Respondent: Mr G T Johnson Solicitor for the Respondent: Sparke Helmore Date of Hearing: 30 July 2001 Date of Judgment: 30 July 2001