Gurung v Minister for Immigration &Multicultural & Indigenous Affairs

Tribunal reasons 7 The Tribunal reasoning and the relevant provisions are set out in the decision appealed from as follows: "FINDINGS AND REASONS 13. At the time the visa application was lodged, Class TU contained a number of subclasses. The only subclass in respect of which any claims have been advanced is Subclass 560. There is no evidence to suggest that the visa applicant meets key criteria for the other subclasses. 14. One of the criteria to be satisfied at the time of application for the grant of a 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' (clause 560.213 of Schedule 2 to the Regulations). At the time of decision, the visa applicant must continue to satisfy the criterion in clause 560.213 (clause 560.227 of Schedule 2 to the Regulations). 15. At the time of the visa application, the visa applicant held a Subclass 560 visa, which included the following conditions: 8105- The holder must not engage in work in Australia (other than in relation to the holder's course of study or training) for more than 20 hours a week during any week when the institution at which the holder is studying is in session. As the visa was in effect on, or granted after, 21 December 2000, this version of 8202 applies: 8202 -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. 8501 -The holder must maintain adequate arrangements for health insurance while the holder is in Australia. 8503 -The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia. 8517 -The holder must maintain adequate arrangements for the education of any school-age dependant of the holder who is in Australia for more than 3 months as the holder of a Subclass 560 (as a person who has satisfied the secondary criteria) or 563 visa. 16. The delegate considered that the visa applicant had not complied substantially with condition 8202. There is no evidence that the visa applicant had not complied substantially with the other visa conditions. 17. Generally the Tribunal must have regard to visa conditions that were applied when the visa was granted - see Pradhan. 18. In Baidakova, Katz J referred to matters to be taken into account when deciding whether an applicant has substantially complied with a visa condition. Katz J quoted the following passage from the judgment of Sackville J in Kim v Witton (1995) 59 FCR 258: …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. 19. The visa applicant has studied Bachelor of Economics (International Business) at the University of NSW since 1998. The CRICOS Code was 001920G. The proposed course start date was 16 March 2001 and the proposed date of completion is end December 2002. The visa applicant has Overseas Students Health Cover. 20. The UNSW academic transcript showing the visa applicant's results from semester 1, 1998 to semester 2, 2000 indicates that he passed 1 and failed 14 of 15 subjects undertaken. A further transcript for semester 2, 2001 indicates that the visa applicant passed 2 and failed 2 of the 4 subjects undertaken. The visa applicant has not provided the Tribunal with any certification from the UNSW that his academic results to date are deemed satisfactory. 21. Paragraph (d) of condition 8202 essentially requires the visa applicant to perform satisfactorily in his academic studies. The Tribunal considers that the academic performance summarised in the previous paragraph (20) cannot be deemed satisfactory. Notwithstanding the circumstances cited by the visa applicant in explaining his poor academic performance - depression leading to gambling, English language difficulties (see paragraphs 10 to 12 above) - the Tribunal can find no way, applying Baidakova or otherwise, that the visa applicant could be deemed to have substantially complied with condition 8202. CONCLUSION 22. Given the findings made above, the Tribunal has no alternative but to affirm the decision under review."

REASONING 8 The applicant made three main submissions in relation to the decision of the Tribunal and alleged that when considered together or separately each of these submissions would show that the Tribunal had erred in its reasoning. 9 The first submission was that the Tribunal had referred to the wrong form of Condition 8202. It is said that the Tribunal should have applied Condition 8202 as it applied at the date of grant of the previous visa on 5 December 1997. In its earlier form the Condition read: "8202. The holder must satisfy course requirements." 10 The difficulty which this submission faces is that effectively from 21 December 2000 the Condition was amended to provide that Condition 8202 in the form applied by the Tribunal should apply to all student visas in effect as at 21 December 2000 and to all student visas granted after that date and before 1 July 2001: see the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) (No 168, 2000). 11 Having regard to these statutory amendments which were clearly designed to ensure that this Condition was uniform in relation to all student visas, there is no substance in the argument advanced by the applicant on this point. The Tribunal applied the correct form of Condition 8202. 12 The second argument raised by the applicant was that the Tribunal had erred in finding that the academic performance of the applicant could not be deemed satisfactory and in expressing the view that the circumstances cited by the applicant in explaining his poor academic performance did not mean that the applicant could be deemed to have substantially complied with the Condition. There is no dispute that substantial compliance with the Condition is sufficient. 13 At the time of the application before the Tribunal, cl 560.213 of Schedule 2 to the Regulations specified that at the time of the visa application it is sufficient if the applicant has complied substantially with the conditions to which the visa, held or last held by the applicant, is or was subject. This means that neutral and absolute technical compliance is not required. Therefore, in the present case, it would be sufficient if the applicant had complied substantially with the requirements of Condition 8202. 14 As the Tribunal points out in par 20 of its decision, there was no evidence before the Tribunal of any certification from the University of New South Wales that the applicant's academic results to date were deemed satisfactory. Condition 8202(d) requires that the holder of the visa achieve an academic result that is certified by the education provider to be at least satisfactory for the course where it runs for less than a semester or, for a course that runs for at least a semester, for each term or semester of the course. In the present case there was no such certification and in making its finding, the Tribunal has not usurped or encroached upon the province of the educational institution. On its face, it was clearly open for the Tribunal to make a finding that the academic performance of the applicant was not satisfactory having regard to his high failure rate. It is pointed out by counsel for the respondent that in some cases the failures occurred in relation to subjects which had been repeated. 15 In its reasons the Tribunal referred to the decision in Kim v Witton (1995) 59 FCR 258, where the Court set out the relevant principles relating to a determination of whether there had been a breach of a condition within the meaning of the Regulations. In the present case there is nothing to indicate that the Tribunal has adopted the wrong principles or has misapplied those principles to the circumstances of this case. Furthermore, I do not consider that the evidence indicates any substantial compliance with Condition 8202. 16 In the absence of any certification by the University one of the cumulative requirements of Condition 8202 had not been satisfied. Accordingly, I do not consider that the reasons of the Tribunal disclose any error of law or principle based on this submission. 17 The third submission by the applicant is that he did not receive a fair hearing. 18 Under s 425 of the Migration Act 1958 (Cth) ("the Act") the obligation of the Tribunal is to invite the applicant to appear before it to give evidence and present arguments pertaining to the issues arising in relation to the decision under review. Section 427(6) of the Act provides that a person appearing before the Tribunal to give evidence is not entitled to be represented before the Tribunal or to examine or cross-examine any other person appearing before the Tribunal to give evidence. A copy of the transcript of the hearing before the Tribunal was supplied to the Court. The hearing was fairly brief and towards the conclusion of the hearing, the Tribunal indicated that there was sufficient information before it, but went on to ask the applicant if there was anything further which he wished to say and the applicant informed the Tribunal that he did not wish to take up this opportunity. Having considered the transcript as a whole, I am not persuaded that there was any breach of natural justice or unfairness in relation to the way in which the hearing was conducted. I am satisfied that the requirements of the Act in relation to the provision of a hearing were satisfied. 19 Having regard to the above conclusions, it is not necessary for me to decide in any detail whether the provisions of s 474 of the Act preclude review in the present case by this Court. However, I should add that even if any or all of the alleged errors had been made out they are protected by the provisions of s 474 and they do not come within the limited class of fundamental exceptions to such a protective clause as set out in the line of authorities stemming from the decision in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. 20 Accordingly, for the above reasons I consider that the present application must be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Solicitor for the Applicant: Simon Diab & Associates