Dasgupta v Minister for Immigration & Multicultural Affairs

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.