FEDERAL COURT OF AUSTRALIA Pandey v Minister for Immigration & Multicultural Affairs [2002] FCA 468 MIGRATION – application for review of a decision of Migration Review Tribunal affirming decision of Minister's delegate not to grant a student visa – where applicant a Nepali citizen – whether Tribunal erred in failing to consider compliance with course conditions – no error of law demonstrated – application dismissed. Migration Act 1958 (Cth) Part 8 Div 2, s 474 Judiciary Act 1903 (Cth) s 39B Migration Regulations Sch 2 cl 560 Baidakova [v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 cited PANDEY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NO. N 1431 OF 2001 BEAUMONT J 8 APRIL 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1431 OF 2001 BETWEEN: SUDHIR PANDEY APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BEAUMONT J DATE OF ORDER: 8 APRIL 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed, with 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 1431 OF 2001 BETWEEN: SUDHIR PANDEY APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BEAUMONT J DATE: 8 APRIL 2002 PLACE: SYDNEY REASONS FOR JUDGMENT BEAUMONT j: INTRODUCTION 1 This is an application for review of a decision of the Migration Review Tribunal ("the Tribunal") made on 19 September 2001, whereby the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a Student (Temporary) (Class TU) visa. The application for an order of review was filed on 18 October 2001, so that the application falls within the "privative clause" regime. Grounds of the application 2 The application for an order of review, made under s 39B of the Judiciary Act 1903 (Cth) and Part 8 Div 2 of the Migration Act 1958 (Cth) ("the Act"), seeks the following: 1. A writ of mandamus compelling the Tribunal to re-hear and redetermine the matter according to law. 2. A writ of certiorari quashing the decision of the Tribunal. 3 The grounds of the application are set out in an affidavit of the applicant, sworn 8 April 2002, as follows: "1. I am the applicant in this matter. 2. On 19 September 2001 the Migration Review Tribunal ('the MRT') handed down a decision affirming the decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant me a student visa under the Migration Act 1958 (Cth). 3. The decision of the MRT is infected by jurisdictional error in the following ways: (a) The MRT failed to consider my compliance with course conditions between February 1997 and May 1997. (b) The MRT took into account my 'unsatisfactory attendance record for Skywell College'. Given that there was no evidence of an unsatisfactory attendance record, the MRT took into account an irrelevant matter in making its decision." Background 4 The applicant is a national of Nepal, born in 1977. 5 The background facts here, as set out in the applicant's submissions, are as follows: (1) In January 1995 the applicant entered Australia on a student visa granted under the Act. The applicant was then granted subsequent student visas in April 1995, July 1996 and March 1997. In relation to the student visa granted in March 1997, the visa continued until 14 May 1999. Also, the visa was subject to condition 8202 "meet course requirements" contained in Schedule 8 of the Migration Regulations ("the Regulations"). (2) The applicant stated that, in February 1997, he enrolled in a Diploma of Management Studies at Skywell College. The diploma is a two year course. In relation to his attendance at Skywell College, the applicant stated: (a) From February 1997 to April 1997 he "was a regular student at Skywell College". (b) In April 1997 he obtained leave from the College for the purpose of returning to Nepal to get married. He was on leave until July 1997. (c) In July 1997 he resumed attending the College. He "had to start [his subjects] again after he returned from Nepal". From July 1997 to December 1997 he "was a regular student". (d) In written submissions dated December 2000, the applicant's migration agent explained that in December 1997 the applicant's wife, who became pregnant in August 1997, "was not keeping good health and was having lots of problems". This "resulted in discontinuation of studies and Skywell sent a non-compliance notice to DIMA on 28 January 1998". The applicant clarified in oral evidence before the Tribunal that the non-compliance notice "was incorrect as he was attending but just missed some classes". (e) In early 1998 the applicant resumed attending the College. He "again became a regular student" and "enrolled in three subjects", although he "had to repeat subjects". He continued attending the College until the birth of his child in May 1998 when he "was given leave of absence for the birth of the baby". (f) After the birth of his child in May 1998, the applicant "missed one or two months" because his wife was suffering from post-natal illness. In July 1998 he attempted to resume attending Skywell College but the College "would not accept him back". (3) Some documentary evidence relevant to the above period is as follows: (a) From 3 April 1997 to 7 July 1997 the applicant was out of Australia. (b) In January 1998 Skywell College sent a notice to the Department stating that the applicant had "failed to complete nominated course". (c) In March 1998 an officer of the Department recorded, in relation to an application for a visitor's visa for the applicant's mother, the following information concerning the applicant: "evi of enrolment in 98 from college recvd. BOD given". (d) In May 2001 Skywell College sent a fax to the Tribunal stating: "Student's attendance from 14/4/97 till 21/7/97 was 30%. There is no record of subjects completed or passed." (4) In October 1998 the applicant applied to enrol in a Bachelor of Arts degree at Central Queensland University ("CQU"). The applicant was accepted into this course and in February 1999 commenced attending the course. In July 2000 CQU issued a certificate of attendance indicating that the applicant's attendance to date was 81.4 per cent. (5) On 10 May 1999, a few days prior to the expiry of his current student visa, the applicant applied for a further student visa. In May 2000 a delegate of the Minister issued a decision refusing to grant the applicant a visa. (6) The applicant applied to the Tribunal for review of the delegate's decision. In March 2001 the Tribunal conducted a hearing. In September 2001 the Tribunal issued a decision affirming the delegate's decision not to grant the applicant a student visa. (7) In October 2001 the applicant applied to the Federal Court for judicial review of the Tribunal's decision. The Act, as amended by the Migration Amendment (Judicial review) Act 2001 (Cth) applies to the application for review. the Tribunal'S Decision 6 The Tribunal noted that one of the criteria to be satisfied at the time of the application for the grant of a Student (Temporary) (Class TU, Subclass 560) visa is that "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" (cl 560.213 of Schedule 2 to the Regulations) and that the applicant continues to satisfy this criterion (cl 560.227 of Schedule 2). 7 The applicant last held a Subclass 560 visa, which included the condition that "8202. The holder must satisfy course requirements". 8 The Tribunal noted that the Policy in relation to condition 8202 was found in Procedures Advice Manual 3 ("PAM3"), relevantly as follows: "Loss of student status 11.11 Condition 8202 states that the holder 'must satisfy course requirements'. 11.12 Except for certain students undertaking English courses or courses at non-government institutions (see paragraph 11.16), generally policy does not envisage students who do not comply with this condition coming to attention unless the student has lost the student's student status i.e. unless the institution, DEETYA or AusAID formally withdraws/revokes the student's student status. (This action usually results from the student having failed to meet or abide by the standards or conditions of the institution e.g. failed examinations or failed to submit course work, to complete course assignments or to maintain valid enrolment or a satisfactory attendance record.) However, there may be circumstances where other information may lead to DIMA investigation. 11.13 As a general rule, · While a student retains student status they are considered to be complying with this condition unless there is clear evidence to the contrary; · A student who has withdrawn from their original course and transferred to another course may be regarded as having continued to satisfy course requirements if they were up to date with their studies at time of withdrawal; · Students completing a course which finishes at the end of the standard academic year (i.e. a course approximately 40 weeks in duration) and who have been accepted into a course commencing at the beginning of the following academic year (i.e. approximately 3 months after the previous course finishes) are considered to be complying with this condition; · Students completing a course which finishes DURING the standard academic year may be considered to be complying with this condition provided no more than ONE month elapses before they begin another course. 11.14 Any student whom a DIMA officer suspects is not complying with this condition should be interviewed and the following considered: · The student's reason(s) for, not abiding by the standards or conditions of the institution. Failure to pass a course does not in itself mean that the student is not complying with this condition. However, reasons for failure should be investigated as failure may be an indication that the student's attendance record has not been satisfactory; · Whether the circumstances were reasonably beyond the student's control (i.e. absence/failure due to illness or non-elective surgery); · Whether the student is able to provide evidence in support of these circumstances (e.g. medical certificates); and · Whether the student has decided to leave Australia or has enrolled in another institution or for another course and would meet legislative requirements for the grant of a visa 560. 11.15 Notwithstanding the loss (or probable loss) of student status, it is open to the officer, having taken all the circumstances into account, to find that the student is complying with the condition. 11.16 Regardless of the above, students (other than displaced students) who were granted their visa to undertake: · An ELICOS course (whether at a government or non-government institution); or · A course at a non-government institution other than a university; And who apply for a further visa are, under policy, and in all cases, required to provide evidence of their attendance record from the institution where enrolled. (It is accepted that displaced students cannot provide this evidence.) As a general policy guide, an attendance rate of less than 90% in the current course is unsatisfactory." 9 The Tribunal stated that the issue was whether the applicant had "complied substantially" with condition 8202 from 27 March 1997 to 10 May 1999. 10 The Tribunal said (at 42 – 43): "42. In Baidakova [v Minister for Immigration and Multicultural Affairs [1998] FCA 1436], Katz J referred to matters to be taken into account when deciding whether an applicant has substantially complied with a visa condition. Katz J said: '…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.' 43. The Tribunal has taken into account the factors referred to in Baidakova (which in turn refers to the decision of Sackville J in Kim v Witton (1995) FCR 258). It is clear from these decisions that an applicant might 'comply substantially' with a condition imposing a prohibition, even if the condition has been breached. In Kim v Witton, Sackville J referred to the IRT observation in Re Wakefield, unreported, 6 March 1992, at 4, that the regulations contemplate that 'some degree of non-compliance with visa conditions' may be permitted. He suggested that 'whether the applicant has 'complied substantially' with a condition prohibiting work is a question of fact, to be determined having regard to the particular circumstances of the case.' His Honour also suggested that the statement of principle by the Immigration Review Tribunal in Re Sekido, unreported, 6 March 1992, was broadly correct. In Re Sekido, the Senior Member considered that it was appropriate, in determining the question of substantial compliance, to take into account the 'proportionality' of the breach and the bona fides (or lack of bona fides) of the applicant. Sackville J then set out the factors later adopted in Re Baidakova. He indicated that 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." 11 The Tribunal found that in February 1997 the applicant enrolled in a two-year Diploma of Management course at Skywell College. On 28 January 1998, Skywell College had issued a non-compliance notice stating that the visa applicant had failed to complete his nominated course. The only records located in the College indicated attendance of 30 per cent from 14 April 1997 to 21 July 1997. The applicant accepted this figure as correct; however, he claimed that it had not been adjusted to reflect his absence in Nepal from 2 April 1997 to 7 July 1997. 12 The Tribunal found that Skywell College had no record of the applicant's attendance after July 1997 or of any subjects completed and passed by the applicant. This was contrary to the account given by the applicant, who had suggested that he returned to the College and passed two subjects. However, the applicant had no record of his academic results from Skywell College. 13 The Tribunal noted that the applicant claimed that the College issued an attendance certificate showing over 90 per cent attendance from February 1997 to February 1998 in connection with his mother's visa application. But, the applicant did not have a copy of that certificate and the Departmental records of his mother's application had been destroyed. 14 The Tribunal considered the question of substantial compliance on the basis that the applicant was attending classes from February 1997 to March 1997 before he returned to Nepal. The Tribunal noted that there was no documentary evidence that the applicant had passed any subjects at Skywell or that he had attended at all after July 1997. 15 The Tribunal went on to find that it was not satisfied that the applicant was attending Skywell, as required, in the second half of 1997 or in 1998. 16 The Tribunal noted that the applicant had asserted that he had achieved satisfactory results in three terms at CQU. However, the academic transcript, which was finally provided in response to a Tribunal request, showed that he had not passed any subjects and that his record at CQU recorded twelve "absent fail" grades over the three terms. The Tribunal said that this discrepancy raised "considerable concern as to the credibility of the visa applicant". 17 The Tribunal further noted that, despite the issue of the non-compliance notice by Skywell College on 28 January 1998, the applicant did not provide an attendance certificate or academic transcript to the Department as requested by letter of 10 May 1999. The Tribunal found that although he did provide some documentary evidence of enrolment (as opposed to satisfactory compliance) to the Department in connection with his mother's visa application, there was no evidence that the applicant was enrolled in or attending Skywell College in 1998. 18 Noting the applicant's claim that his poor attendance was due to the illness experienced by his wife, associated with her pregnancy and child birth, the Tribunal said it was not satisfied that the limited documentary evidence before the Tribunal supported the applicant's version of these events. 19 The Tribunal remarked that the applicant's mother was in Australia from 9 April 1998 to 6 September 1998 for the purpose of assisting in caring for his wife and child, but there was no evidence that the applicant undertook any study during this time. 20 The Tribunal further found that, although the applicant took steps to arrange University enrolment (at CQU), he did not, as previously mentioned, pass any subjects during three terms of study at the University. 21 The Tribunal concluded, from the evidence, that it was not satisfied that the applicant had complied substantially with condition 8202. CONCLUSIONS 22 It will be convenient, in the first instance, to consider the applicant's grounds of review upon the assumption, for the purposes of these arguments, that the privative provision, s 474 of the Act, does not apply here. The Applicant's First Ground of Review 23 The Tribunal, the applicant says: "… correctly noted that 'it is necessary to consider whether the visa applicant complied substantially with condition 8202 in the period 27 March 1997 to May 1999' (i.e. the period of his previous student visa). However, in considering this matter, while the [Tribunal] considered the applicant's compliance with condition 8202 in relation to his period at Skywell College up to the end of 1998, the [Tribunal] did not take into account the applicant's attendance at Central Queensland University between February 1999 and May 1999. There was independent evidence that the applicant's attendance rate at Central Queensland University between February 1999 and July 2000 was 81.4%. The fact that the applicant was complying substantially with an aspect of course requirements at Central Queensland University between February 1999 and May 1999 was relevant to whether he 'complied substantially with condition 8202 in the period 27 March 1997 to May 1999'. Yet the findings of the [Tribunal] indicate that the [Tribunal] did not take into account this matter. Since the [Tribunal] has 'failed to consider matters that it was required to consider', the applicant is entitled to relief." 24 I cannot accept the submission even if it were open. As has been noted, the Tribunal did consider the applicant's history with CQU but formed an adverse view of the applicant in this connection. In any event, this ground of review, is, in form and substance, an impermissible attempt to re-agitate the Tribunal's conclusions on the essentially factual question whether there had been substantial compliance with the course requirements. As has been seen, the Tribunal correctly stated the general legal principles in this area as laid down by the course of authority in this Court. The Applicant's Second Ground of Review 25 Noting the Tribunal's reliance upon the Skywell College "unsatisfactory attendance record", the applicant says: "a) The Department's records indicate that the applicant was overseas from 3 April 1997 to 7 July 1997. b) The applicant consistently stated that he returned to Nepal between April 1997 and July 1997 to get married and that he received permission from Skywell College to leave during this period. Further the applicant stated that there was a 'leave of absence letter from Skywell College' that he submitted to AHC-Nepal. c) In light of points (a) and (b) above, it is not surprising that the applicant's attendance at Skywell College from 14 April 1997 to 21 July 1997 was 30%. d) Skywell College never stated that the applicant did not attend the College at other times. It merely stated that 'student's attendance from 14/4/97 to 21/7/97 was 30%'." 26 On this basis the applicant says there was no evidence: "…before the [Tribunal] to make a finding that the applicant had an 'unsatisfactory attendance record from Skywell'. The [Tribunal], in taking this matter into account, 'has taken irrelevant matters into account'. For this reason, the applicant is entitled to relief." 27 In my view, this ground of review is also not open, for essentially the same reasons. That is to say, the Tribunal, by reference to the relevant authorities, posed to itself the correct legal question and then proceeded to make a conclusion based on the material facts. In my opinion, s 474 of the Act apart, no basis for judicial review is made out. 28 In those circumstances I need not consider whether s 474 of the Act might have applied, assuming some legal error did exist. ORDERS 29 Accordingly, the application is dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. Associate: Dated: April 2002 Counsel for the Applicant: Mr B Zipser Counsel for the Respondent: Mr J Smith Solicitor for the Respondent: Clayton Utz Date of Hearing: 8 April 2002 Date of Judgment: 8 April 2002