Bhattarai v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 855

FEDERAL COURT OF AUSTRALIA

Bhattarai v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 855

BINAYA KUMAR BHATTARAI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 243 OF 2002 BRANSON J 28 JUNE 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 243 OF 2002

BETWEEN: BINAYA KUMAR BHATTARAI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 28 JUNE 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 243 OF 2002

BETWEEN: BINAYA KUMAR BHATTARAI

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 28 JUNE 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application made under section 39B(1) of the Judiciary Act 1903 (Cth) for the issue of constitutional writs in respect of a decision of the Migration Review Tribunal dated 4 March 2002 which affirmed a decision that the applicant is not entitled to the grant of a Student (Temporary) (Class TU) visa. 2 The decision of the Tribunal is a "privative clause decision" within the meaning of the Migration Act 1958 (Cth) ("the Act"). Section 474(1) of the Act provides: "(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." 3 Although s 474(1) is worded in a way which would oust all judicial review, other provisions within Part 8 of the Act reveal that this is not the true intention of the section (see ss 475A, 477 and 478). Plainly, however, the power of the Court to review the decision of the Tribunal is severely constrained. 4 The grounds of review upon which the applicant relies are: "1. The decision maker fell into a jurisdictional error in that there was no material to justify findings made by the Tribunal. PARTICULARS 1.1 The Tribunal made findings that applicant did not attend classes while there was no material before the Tribunal to justify such finding. 1.2 The Tribunal assumed jurisdiction to find whether or not applicant had satisfied course requirements while this is a question for the College to decide. 2. The decision maker fell into an error of law. PARTICULARS 2.1 The Tribunal applied wrong formulation of condition 8202 imposed on the Applicant's previous visa." 5 The material before the Court provides no support for the particulars which are provided of the asserted grounds of review. The critical issue before the Tribunal was whether the applicant had substantially complied with the condition imposed on the visa which he had last held. The visa which the applicant had last held was a student visa which was subject to, amongst other conditions, condition 8202 which required that he satisfy course requirements. The Tribunal was thus required to determine whether the applicant had substantially complied with the condition of his previous student visa that he satisfy course requirements. 6 In reliance on his previous student visa the applicant had enrolled in a Diploma of Business Computing course at the New South Wales Business and English College which was to run from 6 October 1998 to 6 October 2000. 7 The Tribunal had before it the considerable information relevant to its assessment of whether the applicant had substantially complied with the course requirements. Submissions had been made on behalf of the applicant that the New South Wales Business College had victimised the applicant which led to poor results on his part. It was also submitted that the attendance records of the College were confused. 8 Before the Tribunal the applicant gave evidence that he was initially enrolled at the New South Wales Business College in a Diploma of Business but changed course in about January 1999 to a Diploma of Information Technology. He said that he attended this course until October 2000 passing 12 subjects out of 25 but was not awarded a Diploma. 9 Also before the Tribunal was the record of the initial decision‑maker refusing the applicant the visa sought by him. That record includes the following information: "The applicant lodged an application for a Student Temporary (Class TU) Visa Subclass 560 Visa on 3/11/2000. The Immigration history is as follows: The applicant was granted a student visa on 16/09/1998 to study Advanced Diploma of Business at the NSW Business College. An attendance certificate from NSW Business College provided on 10/10/00 stated that the applicant had an attendance certificate of 86% from 22/11/99 - 6/10/00. However, on 8/02/99 the NSW Business College informed DIMA that the applicant failed to meet course requirements. To clarify this discrepancy I faxed NSW Business College for the applicants attendance on 15/11/00. A reply by fax was received on 21/11/00 stating that the applicant attended NSW Business College from 6/10/98 - 5/10/00 and had an attendance record of 5%. In response to this fax I contacted the NSW Business College and spoke to Jenny McCarthy to confirm the attendance fax and she confirmed that the attendance certificate that was issued by the college on 10/10/00 was in fact issued in error. The certificate issued on 10/10/00 was for a different student by the last name BHATTARAI. She confirmed that the correct attendance for the applicant was 5% for the period Jan 2000 - October 2000." 10 The certificate which shows the applicant's attendance record at 5 per cent was before the Tribunal. The certificate has the word, "no", inserted under the heading "Meeting Course Requirements". The Tribunal further took evidence from Mr John Oakley, the Business College Co‑ordinator of Central College. Central College had apparently taken over the business of the New South Wales Business College in November 1999. Mr Oakley confirmed that the records of the New South Wales Business College showed that the applicant had enrolled in a Diploma of Business Computing on 6 October 1998 which was to run until 6 October 2000. He said that the applicant discontinued this course on 7 October 1999 enrolling in an Advanced Marketing course on 2 November 2000. 11 Mr Oakley said that the Central College had no actual attendance records from the New South Wales Business College but that it had a record of its own that the applicant attended on 13, 20 and 27 June 2000. Its records, presumably taken over from the New South Wales Business College, also showed that a letter had been sent to the applicant stating that his attendance was 61 per cent in February 1999. The records also showed that a further letter was sent to the applicant on 16 September 1999 giving an attendance record of nought per cent for that semester and 46 per cent overall. A copy of the applicant's academic transcript dated 15 December 2000 was also before the Tribunal. It disclosed that the applicant had attained distinctions in two subjects and failed 27 subjects. 12 The applicant, in response to Mr Oakley's evidence, told the Tribunal that the records of the College were wrong. However, he could produce no letters from the College showing satisfactory attendance. He had earlier produced a certificate of satisfactory attendance. The Tribunal accepted that this certificate, as the College claimed, had been sent to him in error when two students with the same family name were confused. 13 The evidence of Mr Oakley, the certificate of unsatisfactory attendance and failure to meet course requirements, and the academic transcript of the applicant constituted material upon which the Tribunal was entitled to rely in making its findings and which justified its findings. The Tribunal did not, as the applicant contended, assume jurisdiction to find out whether the applicant had satisfied course requirements. It relied on relevant evidence emanating from the Central College. 14 I turn to the assertion that the Tribunal fell into error of law by applying the wrong formulation of condition 8202. While the Tribunal mentioned the expected 80 per cent attendance, the remainder of its reasons for decisions disclosed that it was alert to the need to apply condition 8202 as it was worded before the provisions of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) came into force. It was after that Act came into force that condition 8202 made reference to attendance at "at least 80 per cent of the classes and tutorials scheduled for the course". In any event, the material before the Tribunal as to the applicant's attendance record and his academic transcript virtually compelled a finding that he had not satisfied course requirements. 15 Whatever may be the proper construction of section 474 of the Act no ground upon which the decision of the Tribunal could be reviewed has been identified.