Gunawardena v Minister for Immigration & Multicultural & Indigenous Affairs

The legislation 5 In order to be eligible for the grant of a subclass 572 visa, the appellant was required to satisfy at the time of his application the criterion in item 572.212 of the Migration Regulations, which provided: '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.' 6 Item 572.226 also provided that the appellant was required, at the time of decision in relation to his application, to continue to satisfy the criterion in item 572.212. 7 Condition 8202 was found in item 8202 in Sch 8 to the Migration Regulations. At the time when the appellant's second subclass 560 visa was granted, item 8202 provided: 'The holder must: (a) be enrolled in a registered course; and (b) attend at least 80% 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.' 8 On 21 December 2000, the form of condition 8202 was changed by the coming into operation of Sch 4 to the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth). Item 4 of Sch 4 provided as follows: '(1) This item applies to the following visas (and only those visas): (a) all student visas that are in effect when this item commences; (b) all student visas that are granted after this item commences but before 1 July 2001. (2) Condition 8202 of each visa to which this item applies is taken for all purposes to be as set out in subitem (3), instead of as set out in regulations made for the purposes of section 41 of the Migration Act 1958. (3) The condition is that: (a) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student - the holder is enrolled in a full-time course of study; and (b) in any other case - the holder is enrolled in a registered course; and (c) in the case of a holder whose education provider keeps attendance records - the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:

(i) for a course that runs for less than a semester - for the course; or (ii) for a course that runs for at least a semester - for each term and semester of the course; and (d) in any case - the holder achieves an academic result that is certified by the education provider to be at least satisfactory:

(i) for a course that runs for less than a semester - for the course; or (ii) for a course that runs for at least a semester - for each term or semester (whichever is shorter) of the course.

(4) In this item: student visa means a visa described in the Migration Regulations 1994 as a Student (Temporary) (Class TU) visa. (5) Other expressions used in subitem (3) that are defined in the Migration Regulations 1994 have the same meaning as in those regulations, as in force from time to time. (6) After this item commences, the Minister may cancel a visa under section 116 of the Migration Act 1958, on the ground that the Minister is satisfied that the condition set out in subitem (3) of this item has not been complied with, even if some or all of the non-compliance happened before this item commenced.'

The Tribunal's reasons 9 In determining whether the appellant had complied substantially with condition 8202, the Tribunal applied the new version of condition 8202. In its reasons for decision, in relation to the criterion in item 572.212 of Sch 2 to the Migration Regulations, the Tribunal referred to authority on the meaning of 'complied substantially'. 10 The Tribunal summarised the relevant evidence in its reasons for decision as follows: 'The visa applicant provided a transcript of his results from RMIT University for 2000 and 2001 in the Advanced Diploma of Information Technology. The visa applicant failed all four of the subjects studied in Semester 1 of 2000, passed three out of four subjects in Semester 2 of 2000, failed two subjects and passed two subjects in Semester 1 of 2001 and passed three subjects and failed one subject in Semester 2 of 2001. ... At a hearing on 8 April 2002, the Tribunal took evidence from the visa applicant. He stated that he commenced his studies in Australia around 23 July 1999. Regarding his academic performance in 1999 in the Advanced Diploma of Engineering (Computer Systems) course, the visa applicant stated that he enrolled in this course because the course Advanced Diploma of Information Technology, which he preferred, was full. He had done some study in Information Technology in Sri Lanka. He failed seven subjects in the Advanced Diploma of Engineering (Computer Systems) course because he did not have a background in this course from his previous studies in Sri Lanka. Regarding his academic performance in Semester 1 of 2000 (he had failed all subjects studied), the visa applicant stated that because he had studied for the Advanced Diploma of Engineering (Computer Systems) prior to changing to the Advanced Diploma of Information Technology, he had forgotten the concepts and had difficulty with his studies. In Semester 2 of 2000, he had failed a theoretical subject. He would have preferred to do a programming subject. In Semester 1 of 2001, he failed two subjects because he had spent too much time studying accountancy. His brother was teaching him accountancy, which the visa applicant believed was important for his future employment in the Bank where his father works. The visa applicant stated that he also had family problems. He thought there were elections in 2000, and that his father as a supporter of the government could lose his job if there was a change in government. His father has held the same job for twenty-five years and the election turned out all right. Regarding his attendance, the visa applicant stated that he sometimes forgot to sign the attendance record, which was passed around during lectures. During tutorials, the tutor marked the record.' 11 The Tribunal's findings were expressed briefly in two paragraphs of its reasons for decision as follows: 'On the basis of guidance provided in PAM, which applied to the particular version of condition 8202 applicable to this case, the Tribunal is to have regard to circumstances beyond the control of the visa applicant, such as absence or failure due to illness, and whether the visa applicant is able to provide evidence in support of these circumstances such as medical certificates. The visa applicant does not meet the requirements of condition 8202 (c) and (d). After considering the explanation of the visa applicant, the Tribunal is not satisfied that at the time of application, the visa applicant had complied substantially with the condition 8202 of his previous visa. He therefore he [sic] does not satisfy Regulation 572.212.'

The appellant's case at first instance 12 In his application to the Federal Magistrates Court, which was filed by a solicitor, the grounds of the application were expressed as follows: '(a) the MRT denied the Applicant procedural fairness in that at the hearing the MRT led the Applicant to believe that the evidence he had produced from the education provider (RMIT) as to the reason for the records of RMIT showing that the Applicant had attended less than 80% of the contact hours scheduled for the course in Semester 1 of 2000 and Semester 1 of 2001 was that the record keeping at RMIT was irregular satisfied the MRT and there was no need for the Applicant to obtain confirmation of this from RMIT; (b) the MRT erred in considering whether the Applicant substantially satisfied condition 8202(d) of the Regulations for the purposes of Clause 572.212 because it erroneously concluded the Applicant had undertaken four subjects in Semester 2 of 2000 and passed three where the Applicant had in fact undertaken five subjects and passed three; (c) the MRT erred in law by construing the requirement in Clause 572.212 that the Applicant complied substantially with condition 8202 by failing to accept that for the purposes of Clause 8202(d) the failure of the Applicant in Semester 1 of 2000 to pass any of the four subjects he undertook was explained by the fact that these subjects were not as described to the Applicant prior to his entry into Australia as being a ground for finding that the Applicant had substantially complled [sic] with the condition; (d) the MRT erred in law by considering the question of whether the Applicant had complied substantially with conditions 8202.(c) [sic] and (d) for the purposes of reg.572.212 was as set out in the PAM limited to circumstances beyond the control of the Visa Applicant and could not be established by a finding that the Applicant had made a bona fide effort to satisfy the criteria.' 13 Before the hearing of the application at first instance, the applicant provided the following additional ground: '(e) the MRT erred in law by considering the question of whether the Applicant had complied substantially with condition 8202, for the purposes of reg. 572.212, by not considering the wording of condition 8202 as it existed at the time of application for grant of a Subclass 572 visa, and, by considering the wording of condition 8202, effective as at 21 December 2000, and applying it retrospectively to the applicant's records of attendance in Semesters 1 and 2 of 2000.'

The federal magistrate's judgment 14 The learned federal magistrate referred to the newer form of condition 8202, and to the provision that the appellant's previous visa was taken 'for all purposes' to have been subject to that form of condition 8202. Her Honour referred to the material from RMIT University as to the appellant's attendance and as to his results, stating that there was no certificate from his education provider that his results were at least satisfactory for each semester. Her Honour found that the Tribunal took into account the appellant's explanation of the attendance records, that he sometimes forgot to sign the attendance record which was passed around during lectures, but nevertheless found that the appellant did not meet the requirements of par (c) of condition 8202. Her Honour said that it was implicit in the Tribunal's finding that it did not accept the evidence of the appellant that he had in fact attended more than 80 per cent of scheduled classes. As to the question of a satisfactory academic result, her Honour said: '13. Condition 8202(d) required the applicant to have achieved an academic result that was certified by the education provider to be at least satisfactory. It was not a matter that the Tribunal was required to assess for itself. The applicant provided no certification from the education provider. The Tribunal's decision related to the applicant's attendance and results in semesters which occurred prior to 30 July 2001, that being the expiration date of his previous visa. 14. The question whether or not the applicant had substantially complied with Condition 8202 was a question of fact for the Tribunal to determine having regard to the matters before it. On a fair reading of the Tribunal's reasons, it cannot be said that the Tribunal limited its consideration to "circumstances beyond the control of the visa applicant, such as absence or failure due to illness." The Tribunal had also noted that it was necessary to consider matters such as the nature and significance of the non-compliance, what caused or contributed to it and whether there was a knowing disregard of the condition and any explanation by the applicant for his non- compliance… The Tribunal's consideration was on the subjects in the Advanced Diploma in Information Technology in which the applicant had enrolled in 2000.' 15 Her Honour found that the Tribunal took each of the matters raised by the appellant into account in determining whether or not he had complied satisfactorily with condition 8202. The Tribunal was entitled to come to the view that he had not so complied, on the evidence before it. Accordingly, her Honour held that the appellant had not succeeded in showing any ground for relief pursuant to s 39B of the Judiciary Act.

The appellant's case on appeal 16 The appellant's notice of appeal was filed without endorsement of the name and address of a solicitor, but appears to have been drawn with some legal assistance. Counsel appeared for the appellant on the hearing of the appeal. The appellant's case can be summarised as follows:

• the Tribunal erred in law in taking into account an irrelevant matter, by applying the new version of condition 8202, rather than the old version, which was operational at the time of the application.
• the Tribunal denied the appellant procedural fairness by failing to allow him the opportunity to provide a letter from his education provider, confirming that his academic performance was satisfactory.
• once the appellant had raised the issue of the accuracy of the attendance records of his classes at the RMIT University, the Tribunal was obliged to seek information from the RMIT University as to the accuracy of its records, and its failure to do so was a jurisdictional error;
• the federal magistrate erred in failing to determine that the matters in respect of which the appellant sought review of the Tribunal decision constituted jurisdictional error. 17 In submissions in reply, counsel for the appellant put an argument that had never been raised at any stage of the proceedings. The argument was that it was not open to the Tribunal to find that the appellant's education provider kept attendance records, for the purpose of par (c) of the new form of condition 8202, because the evidence of the appellant to the Tribunal was that attendance forms were passed from student to student in some classes, and collected at the end. Counsel's contention was that the Tribunal should have found that students kept the records.

The form of condition 8202 18 The ordinary presumption is that a change in a legislative provision will not be construed as affecting events that have occurred already, unless the legislation itself makes it clear that the change is to have such an effect. That presumption would be all the stronger in the case of a condition such as condition 8202, which establishes a standard to be met by a person if he or she wishes to avoid having an existing visa cancelled, or to apply for a further similar visa in the future. 19 The change in the form of condition 8202 involved several changes of substance relevant to the present case. Instead of compliance with the 80 per cent attendance rule being assessed on an overall basis, the new form required that it be assessed on a term by term or semester by semester basis. The option of establishing 80 per cent attendance 'otherwise' than by records of attendance of the education provider was removed. The only requirement in the new form to prove 80 per cent attendance was imposed in cases in which the education provider kept records. In relation to satisfactory academic results, the requirement to prove such results became a universal one, and not one which only applied if attendance could not be evidenced. This meant that a certificate of satisfactory academic result, supplied by the education provider, was to be required in every case and in every case on a term by term and semester by semester basis. 20 The problem about applying the normal presumption is that the new form of condition 8202 was accompanied by the provision in item 4(2) of Sch 4 to the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth), which makes it abundantly clear that the new form is to apply 'for all purposes'. The provision could not be clearer. Because the appellant's subclass 560 visa was in effect on 21 December 2000, when item 4 came into operation, it fell within item 4(1)(a), and therefore was a visa to which item 4 applied. The effect of the provision was to deem condition 8202 in the appellant's subclass 560 visa to be in the form in item 4(3). 21 Counsel for the appellant relied on Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498. In that case, Finkelstein J expressed the view that the Tribunal should have judged compliance with condition 8202 by reference to its old form up to 21 December 2000, and only thereafter by reference to its new form. Subsequently, without reference to Kwan, Tamberlin J came to the opposite conclusion in Gurung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 772. In Siddique v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1226 at [19] - [27], Mansfield J discussed the issue at length and came to the view that the conclusion reached by Tamberlin J was the preferable one. Similar views were expressed by Merkel J in Alam v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 630 (2002) 121 FCR 471 and by Hill J in Zou v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1126 (2002) 124 FCR 289. On appeal from Mansfield J, in Siddique v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 16 at [12], the Full Court expressed a tentative view that Mansfield J was correct in coming to the conclusion that he did on that issue. These authorities confirm my view that the legislative provisions are clear, and that Kwan should not be followed. 22 The Tribunal in the present case was therefore correct to apply the new form of condition 8202 in determining whether the appellant had complied substantially with that condition as a condition of his previous subclass 560 visa. The federal magistrate was correct in finding that the Tribunal's approach had been correct. See her Honour's reasons for judgment in Gunawardena v Minister for Immigration [2003] FMCA 362 at [8]. 23 In any event, it is by no means clear that the appellant would have succeeded before the Tribunal if the old form of condition 8202 had been applied. On no calculation of the figures supplied by RMIT University in a letter dated 7 February 2002, and forwarded to the Tribunal by the appellant's solicitor and migration agent by facsimile on 6 March 2002, could the appellant establish better than 77 per cent attendance for the year 2000 and 77 per cent attendance for the whole of the two year period in 2000-2001. At best, he established an 87 per cent attendance record for the second semester in 2000 and an 86 per cent attendance record for the second semester in 2001. These figures were dragged down by his 66 per cent attendance records in each of semester one of 2000 and semester one of 2001. For him to have succeeded in establishing substantial compliance with the 80 per cent requirement overall, or for so long as condition 8202 was in its old form, it would have been necessary for the Tribunal to have accepted his explanation that there were occasions on which he did not fill out the necessary attendance form, because it was not passed to him. As the federal magistrate held at [12] of her reasons for judgment, the Tribunal must have been taken to have rejected this explanation. It was not surprising that it did so, as the appellant did not attempt to provide any detail. In his evidence to the Tribunal, he drew a distinction between lecture classes, which were larger, and smaller classes, which the Tribunal characterised as tutorials. The appellant made no attempt to tell the Tribunal what portion of the total number of classes was made up by lectures, in which he said that students passed the attendance forms around, and what portion was made up of tutorials, in which the tutor marked the attendance sheet. Although he filed an affidavit in the proceeding at first instance, the appellant did not refer to this question. Unless he could show that there was a chance of a different result if the Tribunal had applied the old form of condition 8202, either for the whole period or for the year 2000, the appellant should not be entitled to any relief at all. 24 There is a real question as to whether the appellant ought to have been entitled to raise a totally new submission in reply. In any event, the submission that the Tribunal could not have found that this was a case in which the education provider kept attendance records is manifestly bad. As I have said, the attendance records were supplied by RMIT University and forwarded to the Tribunal on behalf of the appellant. Whether or not students took some part in the compilation of the records, the records were undoubtedly kept by RMIT University, and not by the students themselves. 25 The suggestion that the Tribunal was obliged to seek out its own information as to whether the attendance records were accurate cannot be maintained. It was not put to the court below and runs counter to a long line of authority to the effect that, although the Tribunal has powers to seek out information, it is not obliged to exercise those powers for the purpose of helping to make a case for an applicant for a visa. See Luu v Renevier (1989) 91 ALR 39 at 45, where the Full Court approved what was said by Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 167 at 178.

Denial of procedural fairness 26 The appellant's argument that he was denied procedural fairness rests on the proposition that the Tribunal should have brought to his attention the requirement for a certificate from the education provider of satisfactory academic results, found in par (d) of the new form of condition 8202. In Re Refugee Tribunal; Ex Parte Aala [2000] HCA 57 (2000) 204 CLR 82 at [121], McHugh J said: 'One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding. [footnote omitted] In the present case, the prosecutor was given no warning that the second Tribunal might find that he had concocted his evidence. But the risk of that finding inhered in the issues and in his various accounts of the real estate transactions. Given the issues and the inconsistency between what the prosecutor told the delegate and the first Tribunal and what he told the second Tribunal, he could not complain that the Tribunal did not warn him that it might reject his evidence concerning the incriminating contracts and the Tehrani agreement. Nor did the more serious finding of concoction require a warning that it might be made. The prosecutor had given inconsistent accounts. The second account was much more favourable to his case.' 27 In my view, the present case belonged to the second category in the dichotomy to which McHugh J referred, namely a case in which the risk necessarily inhered in the issues to be decided. The need for a certificate of satisfactory academic results was plain on the face of the new form of condition 8202. The new form of condition 8202 was not buried in obscure regulations, but was itself in an Act of Parliament. The appellant was represented by a solicitor and migration agent, who made submissions on his behalf. There was no reason why the appellant, or his representative, ought to have been unaware of the necessity for such a certificate. 28 In his affidavit, filed in the proceeding at first instance, the appellant suggested that the Tribunal had actively misled him as to the need for a certificate of satisfactory academic results. Each of the parties then obtained, separately from the other, a transcript of the hearing before the Tribunal. The two transcripts were put before me. They do not bear out the appellant's suggestions that he was misled on that issue. Incidentally, the transcripts do not bear out suggestions that the Tribunal misled the appellant on whether he needed to supply further information about his attendance record. The Tribunal member made it abundantly clear that she had heard what the appellant had to say but would have to look at the question whether the appellant satisfied condition 8202 in relation to his earlier studies. The Tribunal member expressly provided an opportunity for the appellant to say more about his attendance record. He did not avail himself of that opportunity. The Tribunal member did raise the question whether the appellant needed to obtain information from RMIT University about his academic performance in the first semester of 2002. The appellant clearly understood that the suggestion was limited to his recent performance, because he gave information as to when his exams began in April 2002. At no stage did the Tribunal take any step that prevented, or discouraged, the appellant from providing the necessary certificate as to his academic results. 29 All that the appellant provided to the Tribunal was a certificate showing the result he achieved in each of the subjects he attempted in 2000 and 2001. No-one from RMIT University offered any opinion in the documents provided as to whether the appellant's academic results were 'satisfactory' or not. In the light of par (d) of the new form of condition 8202, the absence of a certificate from the education provider, containing an opinion that the academic results were satisfactory, was fatal to the appellant's case. He could not have succeeded in satisfying condition 8202.

Conclusion 30 The appellant has therefore failed to make out any error on the part of the federal magistrate, or any error on the part of the Tribunal, which the federal magistrate ought to have located, or otherwise. The appeal must be dismissed. In accordance with the usual rule, that costs follow the event, the appellant should be ordered to pay the Minister's costs of the appeal.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.