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[2001] FCA 1239
Federal Court of Australia
2001-09-07
Spender J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an application for an order to review the decision of the Migration Review Tribunal (the Tribunal) which affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) to refuse the grant of a Student (Temporary) (Class TU) visa, Subclass 560 to the applicant. 2 The applicant is an Indian citizen who arrived in Australia on 23 July 1998 as the holder of a Student Visa (Temporary) (Class TU) Subclass 560, which was granted on 14 July 1998 and expired on 31 August 1999. On 16 August 1999 the applicant next applied for a second Subclass 560 visa, which application was refused on 17 February 2000 by a delegate of the Minister. The applicant lodged an order of review to the Tribunal on 17 February 2000. The Tribunal on 14 July 2000 affirmed the decision of the delegate to refuse the grant of a Student (Temporary) (Class TU) visa, Subclass 560 to the applicant. 3 The Tribunal found: "On the basis of the evidence from the University and from the visa applicant the Tribunal is not satisfied that at the time of application, the visa applicant had satisfied the course requirements of the course for which his previous visa was issued. There is no evidence that the visa applicant was ill or otherwise unable to attend his course. He merely failed to attend and did not continue. Therefore the Tribunal finds that at the time of application the visa applicant had not complied substantially with the conditions of his previous visa, and therefore does not satisfy clause 560.213. 4 Clause 560.21 specifies the criteria that have to be satisfied for a Subclass 560 student visa at the time of application for such a visa. Clause 560.212 provides that: "(1) If the application is made in Australia, the applicant meets the requirements of subclause (1A), (2), (3), (4) or (5). (1A) provides that: "An applicant meets the requirements of this subclause if the applicant is: (a) the holder of a visa of one of the following classes: … (xiii) Student (Temporary) (Class TU); …" 5 The applicant, at the time of application, satisfied that requirement. 6 Clause 560.213 relevantly required as a criterion for the grant of a visa: "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." 7 At the time of application for the second Subclass 560 visa, clause 8202 of the conditions of the visa held by the applicant required that: "The holder must satisfy course requirements." 8 The applicant was enrolled at the University of Ballarat in a Graduate Diploma in Information Technology course in second semester 1998. The Tribunal, in par 14 of its reasons noted that in a statutory declaration from the applicant dated 14 March 2000: "14. …The visa applicant stated that he had been advised in India that he could enrol in the Graduate Diploma in Information Technology although he had no previous Information Technology training. He was told that his Bachelor of Commerce degree was a suitable qualification for continuing with a Graduate Diploma in Information Technology. However, once he commenced the course it became apparent that this was not the case. The other students in the course all had one or two years prior training in IT subjects and he was left floundering very early in the course. He could not obtain the assistance he required to keep up. He completed one semester of the Graduate Diploma in Information Technology in December 1998 however he did not pass and this caused him distress, particularly as he had completed his Bachelor of Commerce degree in India with very good results. 15. The visa applicant changed course to the Masters of Business Administration at the University of Ballarat commencing in February 1999 but found it difficult. He did not have the requisite three years of work experience which he found to his disadvantage as he lacked the experience to be able to participate in the course adequately. He struggled to meet the course requirements and became discouraged as it was important to succeed as his parents had paid a great deal of money and he felt he could not let them down. However he was unable to cope with the course at the advanced level at which it was pitched. His results at the end of the first semester in 1999 were not good. The visa applicant enrolled in the second semester of 1999 and recommenced studying in that semester, applying for a further student visa to enable him to do so. He was worried about his ability to pass the second semester. Around July 1999 he met a woman in Melbourne and started going out with her, spending more time in Melbourne and less in Ballarat. Consequently his studies were neglected. However he was so depressed and traumatised about the course at that time that he did not know how to cope or resolve the situation. 16. The visa applicant stated that as a result he did not complete semester two in 1999. 9 The Tribunal noted in pars [18] and [19] that, in a hearing held on 15 June 2000, the applicant gave evidence that: "…[he] came to Australia in 1998 to study [for] a Graduate Diploma in Information Technology. He had previously studied Commerce in India which did not include any computing components. However the representative with whom he met from Ballarat University told him that he did not require IT skills to undertake the course. … He tried to keep up, but … realised that he was not learning anything and was wasting his time and money in the course. He did not sit the exams for the course and did not pass any subjects." (emphasis added) 10 The applicant told the Tribunal that he went to see the head of the school who arranged for him to transfer to the course Master of Business Administration. He said he found the first 3 to 4 weeks of that course difficult, the other students being older and having had workforce experience. The applicant said he fell behind, passing only one subject in first semester 1999.
The Reasoning of the Tribunal 11 The Tribunal noted that one condition of the Subclass 560 visa granted on 14 July 1998 was: "8202. The holder must satisfy course requirements." The Tribunal said: "It is noted that condition 8202 was amended on 1 December 1998. The amended condition 8202 purported to have retrospective effect on visas granted prior to the amendment. However, in Pradhan v Minister for Immigration & Multicultural Affairs [1999] FCA 1240 Gyles J held that a subclass 560 visa granted before that date is not subject to the amended version of condition 8202." The Tribunal noted that: "The information from University of Ballarat dated 14 October 1999 states that the visa applicant passed only one of the three units enrolled in Semester 1 1999. It states that two of his lecturers reported that in one subject he attended three of a possible ten classes and failed to submit the assignment; the other lecturer reported that the visa applicant had attended one of three block visits. Although no academic transcripts have been produced, the evidence of the visa applicant confirms that he did not do well in semester 2, 1998 which led him to change courses. He passed only 1 of 3 subjects in semester 1 in 1999 and did not complete semester 2 in 1999." 12 As earlier noted, the crucial finding by the Tribunal was: "The Tribunal is not satisfied that at the time of application, the visa applicant had satisfied the course requirements of the course for which his previous visa was issued." (emphasis added) 13 Under s 475(1)(c) of the Migration Act 1958 (Cth) (the Act), the decision of the Tribunal is a judicially-reviewable decision. 14 By his amended application, the applicant states four grounds for review. First, that procedures required by s 476(1)(a) of the Act were not observed; second, that the decision involved an error of law under s 476(1)(e) of the Act; third, the Tribunal did not have jurisdiction to make the decision; and finally, that the Tribunal's decision was not authorised by the Act or Regulations. 15 The requirement in cl 560.213 that the applicant has complied substantially with the conditions to which the visa held by the applicant is subject, is a requirement of substantial compliance with each of the conditions on which the visa was held: Peng v Minister for Immigration and Multicultural Affairs [2000] FCA 1672 per Hely J at par [16]. The question for the Tribunal was whether there had been substantial compliance with the condition that the holder satisfy course requirements. 16 The Subclass 560 visa issued on 14 July 1998 was for the purpose of completing the Graduate Diploma of Information Technology course, and was to last for a period of time sufficient for the applicant to complete that course. While the applicant obtained the permission of the University to change courses, there is no evidence that the applicant obtained the permission of, or even notified, DIMA of this change in his plans. In my view, the course to which the visa conditions and cl 8202 applied was the Graduate Diploma of Information Technology course. Whether there had been substantial compliance with the requirements of the Master of Business Administration course is irrelevant to the question of substantial compliance with the 8202 condition of the applicant's first Subclass 560 visa. 17 It follows that I reject the submission on behalf of the applicant that the correct interpretation of cl 8202 is that the course it refers to is the course which the visa holder is enrolled in from time to time, provided that that course is a registered course for the purposes of the regulation. 18 It is true that the Tribunal went into some detail concerning the applicant's academic history, both for the Graduate Diploma in Information Technology course for which the first visa was granted, and the academic performance of the applicant in respect of the Master of Business Administration for which the University of Ballarat permitted him to enrol on 1 March 1999. While in my view consideration of the academic performance of the applicant for the second course is irrelevant to the requirements for the grant of the second Subclass 560 visa, if the Tribunal correctly addressed the right question, in my opinion it committed no error of law by also considering matters which were otiose to the matter it was required to consider. 19 It was further submitted that a visa applicant could not be held to have failed substantially to comply with the requirement of satisfying the course requirements, unless one could expressly identify what the course requirements were. Further, it could not be said that there was a substantial non-compliance with the condition to satisfy course requirements because, it was said, the University of Ballarat, by permitting him to change courses, had indicated that he had satisfied the course requirements of the first course. In my view, the fact that the university had permitted the applicant to change courses does not evidence compliance, substantial or otherwise, with the need to satisfy the requirements of the first course; if anything, it evidences its satisfaction that he had not satisfied the course requirements of the earlier course. 20 The argument that the university had not required the applicant to "show cause" at the end of his first semester did not require, let alone permit, the conclusion that he had satisfied the course requirements of the first course. 21 Here, the applicant on his own evidence transferred from the Graduate Diploma in Information Technology to the Master of Business Administration course because the graduate diploma course was beyond his capabilities. In my opinion, on any construction of the phrase "satisfy course requirements", it cannot be said that a person who did not sit any of the examinations for the course and did not pass any subjects, and who voluntarily did not continue with the course because it was beyond his capabilities, has satisfied course requirements. 22 In my opinion, it was well open to the Tribunal to conclude, as it did, that at the time of application for the second Subclass 560 visa, the applicant had not satisfied the course requirements of the course for which his previous visa was issued. There can be no argument that, there being no compliance with the condition that the course requirements be satisfied, there had been substantial compliance with that condition. 23 It was therefore open for the Tribunal to conclude, as it did, that at the time of application the visa applicant had not complied substantially with the conditions of his previous visa, and therefore does not satisfy cl 560.213. 24 No legal error attends the conclusion of the Tribunal that: "The visa applicant does not meet the requirements for the grant of the visa sought in his application."
25 The application should be dismissed with costs, to be taxed if not agreed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.
Counsel for the Applicant: Mr Christopher Horan
Solicitor for the Applicant: Erskine Rodan and Associates
Solicitor for the Respondent: Blake Dawson Waldron
Dasgupta
Minister for Immigration & Multicultural Affairs