25 However, the tenor of the decision in Re Ferreras is that, though it may be inappropriate to speak of a party bearing a persuasive burden of proof as does a party to litigation in the courts, the practicalities are that in proceedings in the Tribunal the visa claimant has the onus of proving, on the balance of probabilities, the facts fundamental to satisfying the statutory criteria for the visa and will fail if that is not done. For the reasons given, such an approach is wrong.
26 It is difficult to know from the reasons given by the Tribunal just how it reasoned its way to its ultimate conclusion against the applicant. But having referred to Re Ferreras, it may well be that it followed the erroneous approach suggested in that case and regarded the applicant as bearing the persuasive burden of proof to the civil standard of all facts necessary to enable the Tribunal to determine whether it was satisfied that the applicant was entitled to the student visa in question.
27 As to the 80% requirement in condition 8202, it is not clear whether the Tribunal made a finding for itself as to what the applicant's attendance levels were during relevant periods, ie, February to June 1999 and February to August 1999. It did say that the applicant "appears not to have complied with condition 8202 of [her expired] visa regarding satisfying course requirements" and it set out the information contained in the Martin College records about this. But it had a little earlier in its reasons noted that the applicant disputed the reliability of this same information when it was acted on by the delegate. It did not resolve this dispute by making a finding as to what her attendance performance was. The Tribunal may not have undertaken the task because it considered that the applicant carried the persuasive burden of proving the relevant facts and she had failed to do that.
28 The Tribunal made an error of law if it determined the case on the basis that the applicant carried a persuasive burden of proof.
29 But even if the Tribunal's reasons should be read as containing a finding that the applicant's attendance record during a relevant period or periods was such as to fall below the 80% requirement in condition 8202, it cannot, I think, be accepted that the Tribunal correctly dealt with the issue of critical importance, viz, whether, notwithstanding her actual level of attendance, she had nevertheless substantially complied with criterion 560.213. The Tribunal, in its reasons set out in par [26], moved straight from noting the Martin College records showing that her attendance was below the 80% level fixed by condition 8202 for the whole of the period between February and August 1999 to the conclusion that "consequently, the visa applicant, on balance, is unable to satisfy clause 560.213 of the Regulations". Since the Tribunal did not make any finding as to her actual attendance level and, in particular, a finding that it was so far below the 80% level as to be, by itself, enough to show failure to substantially comply with criterion 560.213, the mere fact that her attendance was below the 80% level fixed by condition 8202 could not, without more, justify this conclusion. Nor did the Tribunal give any attention to the other issues it identified in par [21] of its reasons by reference to Baidakova as relevant to whether visa condition 8202 had been substantially complied with. (The first dot point in Baidakova deals with the nature of the breach of condition and an attendance level below 80% no doubt comes within it.) Further, the Tribunal recorded the evidence the applicant put before it to justify her poor attendance on medical grounds, a matter relevant by reason of the third dot point in Baidakova to the question of substantial compliance with the 80% requirement, but it expressed no view on what significance this evidence had to that issue.
30 The Tribunal thus appears to have made an error of law by concluding that the applicant had not substantially complied with the 80% requirement and so with criterion 560.213: it could not properly apply the legal test governing substantial compliance without finding facts additional to those it found with respect to the applicant's level of attendance, if it did in truth make such a finding.
31 I do not think use of the phrase "on balance" in par [26] shows that the Tribunal was here applying the broad evaluation referred to in Baidakova for determining whether there was, in terms of criterion 560.213, substantial compliance by the applicant with condition 8202. As I have said, there is no mention in this section of the judgment of the Tribunal or anything suggesting that the Tribunal did turn its mind to any issue other than that of the level of the applicant's attendance in relation to the 80% figure set in condition 8202. Moreover, the same phrase appears in the Tribunal's statement of its understanding of the principle it considered was to be found in Re Ferreras, something with which I have already dealt.
32 It is fairly clear that in the last sentence of par [26] through to par [30], the Tribunal sets out its reasons for concluding that there was a second independent ground upon which the applicant should fail, and that it was not purporting, in these paragraphs of its reasons, to continue to deal with the issue of substantial compliance with criterion 560.213. The apparently unequivocal conclusion expressed by the Tribunal towards the end of par [26] of its reasons - "consequently the visa applicant on balance is unable to satisfy clause 560.213 of the regulations" - suggests that in this section, from the last sentence of par [26] on, the Tribunal did move on to discussing a basis for determining the case against the applicant discrete from that the subject of par [25] and the first part of par [26].
33 Its reasoning here is also confusing. It previously set out the dictum in Baidakova listing the issues of relevance to whether there has been substantial compliance with relevant visa conditions. Some of its comments, eg, to the effect that "the whole premise of a Subclass 560 visa is that the holder be a bona fide or genuine student", suggest that the Tribunal may have had in mind the issue in the second dot point of the dictum in Baidakova set out in par [21] of its reasons. But it appears from its context that this comment may be directed to other matters. The Tribunal's expression of doubt in par [26] about her not being "genuine in her desire to stay as a student here" does not clearly relate to anything in the dictum in Baidakova (thought it might possibly relate to the third dot point). One of the grounds upon which the delegate based his decision to refuse the application for the visa was the applicant's failure to satisfy him that criterion 560.224 was met. The Tribunal makes no mention of that criterion or of the question of the applicant's compliance with it being of relevance to its determination. But this expression of doubt by the Tribunal in par [26] does evoke the language of criterion 560.224 and the finding made by the delegate that he was not satisfied the applicant complied with that criterion because she was not "a genuine applicant for entry and stay as a student". What the Tribunal had to say in par [29] about being not satisfied "that the situation would change or be markedly different if she were granted the visa sought and given another opportunity to pursue her Degree course at CQU in Brisbane" suggests, in its attention to what was likely to happen in the future, that the Tribunal may have had in mind criterion 560.224(1)(c): this requires an applicant for a student visa to satisfy the decision-maker at the time the decision is made that she is a genuine applicant for entry and stay as a student having regard to her intention to comply in the future with the attendance conditions of a new visa. In contrast, the issues identified in Baidakova as relevant to the question of whether there has been substantial compliance with a condition necessarily focus on what has happened in the past. The applicant's future intentions as at 17 June 1999 and at 20 December 2000 were irrelevant to whether she had substantially complied with the conditions of her last student visa. Yet the Tribunal formed a view on them and relied on that view to dismiss her application.
34 The Tribunal's concentration in this part of its reasons on the applicant's bona fides as a student may possibly suggest that the Tribunal thought it could justify refusal of the visa on its view of the general object which it considered the scheme governing the availability of Subclass 560 visas sought to achieve. The legislative scheme governing the grant of visas is highly prescriptive in identifying with precision all the criteria that a visa applicant must satisfy, both at time of application and at time of decision, and in casting a mandatory duty on the decision-maker to grant a visa if the relevant criteria are satisfied without leaving the decision-maker any residual discretion to refuse a visa in such a case. Section 65 of the Act is the pivotal position upon which this whole prescriptive scheme is based. In view of the highly prescriptive scheme of the legislation, I do not think the Tribunal could find against the applicant on such a basis.
35 The Tribunal's reasoning for finding against the applicant on the second ground is confused. Since it is clear enough that the Tribunal appears not to have considered that it was dealing with this part of the case by reference to criterion 560.224, the best view I can come to is that it reached its determination on its second ground for refusing the application for the reason that there was another basis for holding that the applicant did not comply with criterion 560.213, but by misapplying the legal principles governing whether there has been substantial compliance with that criterion. It is not, I think, a sufficient answer to this for it to be said that the Tribunal, at one stage at least of its reasons, accurately set out those principles. It appears clear enough that it did not apply them in arriving at its decision on the second ground against the applicant.
36 The Tribunal misapplied the law governing what is necessary to make out substantial non-compliance with a visa condition to the facts found by it. The Tribunal cannot be understood as having gone further than making a finding that the applicant's level of attendance fell below the 80% level referred to in condition 8202. It found no other facts. It could not properly reach a conclusion on whether there had been substantial compliance or not with that condition on the limited facts it found. If the whole of what it said in pars [25] to [30] of its reasons should be taken as directed to this question of substantial compliance, then it also misapplied the law governing that by taking into account views as to the applicant's future intentions, something that has no part to play in the test governing whether a visa applicant has substantially complied with the conditions of a visa which she held in the past.
37 The question whether the applicant substantially complied with criterion 560.213 requires the finding of facts additional to those found by the Tribunal. It is not for the Court to find those facts unless it is clear that certain findings are the only ones possibly open. That is not the position here, though the applicant's case for the grant of a visa is by no means a clear one.
38 The application will be allowed. The decision of the Tribunal will be set aside and the matter remitted to the Tribunal, differently constituted, for determination according to law.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.