Huang v Minister for Immigration & Multicultural Affairs

(b) if not so satisfied, is to refuse to grant the visa."

4 The criteria which the applicant had to satisfy at the time she applied for renewal of her student visa in June 1999 included criterion 560.213:

"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."

(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."

6 Paragraph 560.224 contains the criteria to be satisfied at the time of decision in respect of a student visa of the kind applied for by the applicant. It includes the following:

"560.224(1) … the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard:

(c) to whether the applicant intends to comply with any conditions subject to which the visa is granted; and

7 The delegate refused to grant the visa which the applicant applied for on 11 June 1999 firstly, because he was not satisfied that the applicant met criterion 560.213, one of the criteria she had to satisfy as at the date of her application of 11 June and, secondly, because he was not satisfied that she met criterion 560.224, one of the criteria required to be satisfied as at the time the delegate made the decision in question. 8 It is appropriate, in view of the reasons the Tribunal gave for its decision, to set out the relevant part of the delegate's decision which exposes with clarity his reasons for refusing the applicant's application:

I have assessed the applicant against all of the criteria to be satisfied by the applicant at date of application, and am satisfied that they (sic) meet all of the criteria with the exception of:

560.213 I am not satisfied that the applicant complied substantially with the conditions to which their (sic) visa held or last held was subject, in that:

· I find that the applicant has breached condition 8202 in that they (sic) have not satisfied course requirements because;

• the applicant's attendance has been unsatisfactory, being 66% (see folio 26). Procedures Advice Manual (PAM 3) Generic Guidelines G - "Student Visas" states that as a general policy guide, an attendance rate of less than 80% in the current course is unsatisfactory.

The applicant was first counselled about attendance on 16 September 1998 (folio 5).

Notification was received from Martin College on 12 February 1999 (folio 12) that Ms Huang's attendance had fallen to 73%.

The applicant's visa was extended on 26 February 1999 to allow her to complete her course by 14 June 1999 and again she was counselled (folio 12) that she would need to achieve satisfactory attendance or face visa cancellation/difficulty renewing her visa.

Attendance between 15 February 1999 and 7 June 1999 was reported (folio 26) as 66%.

The applicant has been counselled a number of times regarding attendance requirements (as detailed above), however her attendance has not improved after these warnings. Attendance reports indicate the applicant's attendance has actually become worse since the last visa extension and counselling.

I have assessed the applicant against all of the criteria to be satisfied by the applicant at time of decision, and am satisfied that they (sic) meet all of the criteria with the exception of:

560.224 I am not satisfied that the applicant is a genuine applicant for stay as a student, because:

· given the applicant's non-compliance with the conditions of their (sic) last visa, as stated above at subclause 560.213, I am not satisfied that they (sic) intend to comply with any conditions subject to which the visa would be granted

The applicant has been given opportunities to improve attendance levels and satisfy condition 8202 Meet Course Requirements but has failed to do so. Given that the applicant's attendance rate has decreased since her last visa extension and counselling, I am not satisfied that she will comply with condition 8202 on an extension of her student visa.

In view of the findings and assessment above, as a delegate of the Minister under Section 65 of the Migration Act 1958, I have decided to refuse the grant of Class TU, Subclass 560, Student (Temporary) to the applicant."

9 The Tribunal affirmed the delegate's decision on 20 December 2000. The applicant seeks to review the Tribunal's decision on the ground in s 476(1)(e) the Act. 10 The applicant submits that the Tribunal's decision involved an error of law in that it gave no consideration or proper consideration to the correct legal test for determining whether the applicant had, in terms of criterion 560.213, substantially complied with condition 8202 of her previous student visa, ie, that current from 26 February to 14 June 1999. The legal error is said to arise from the Tribunal's mistaken belief that if the applicant did not have an attendance record at Martin College of at least 80% during relevant periods, then the applicant was "unable" to satisfy visa condition 8202 and thus criterion 560.213. The applicant points out that clause 560.213 requires "substantial" compliance with condition 8202, not "strict" compliance with the 80% requirement; she submits that the Tribunal made no attempt to determine the actual level of attendance and whether, having regard also to all other relevant considerations, that level of attendance was capable of amounting to "substantial compliance", a failure that reveals an error of legal interpretation on its part. It was further argued that, even if the Tribunal did not so err, it nevertheless incorrectly applied the law properly construed to the facts as found by it in holding that a failure to maintain an attendance record of at least 80% in the period February to June 1999 necessarily resulted in the applicant being "unable" to satisfy criterion 560.213. It was submitted, in effect, that before the Tribunal could properly apply the relevant law and make such an ultimate finding, it had to find additional facts, viz, the actual level of the applicant's attendance at College and the facts relevant to the issues identified in Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436, that govern whether there has been substantial compliance with a visa condition such as the 80% attendance requirement of condition 8202. 11 The respondent submits that the Tribunal correctly identified and dealt with the "substantial compliance" requirement in criterion 560.213. It was pointed out that the Tribunal set out relevant passages from Baidakova dealing with the proper approach to determining "substantial compliance" with visa conditions such as condition 8202; it was submitted that the Tribunal could be seen to have arrived at its conclusion not just by reference to the 80% attendance requirement, but by balancing a number of factors relevant to the applicant's attendance. 12 The Tribunal did not make any finding as to the actual level of the applicant's attendance at Martin College during the February/June 1999 period. But it noted her acknowledgment that "she was aware of the condition on it [ie, the February 1999 visa] to meet her course requirements" [par 8] and that she had been counselled twice about her poor attendances in March and June 1999 [par 10]. The Tribunal also recorded information it obtained during the hearing from both Martin College (and Central Queensland University) about her poor attendances at Martin College, including those the subject of the College's letter to her in April 1999, among other things [par 11]. The Tribunal then focused on condition 8202, in the context of criterion 560.213. After referring in par [17] of its reasons to criterion 560.213 which it described as "one of the criteria to be satisfied at the time of application for the grant of a Subclass 560 visa", the Tribunal stated: "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)." Criterion 560.227 provides:

"If the application is made in Australia, the applicant continues to satisfy the criterion in clause 560.213."

13 Criterion 560.227, which calls up criterion 560.213, can only be a relevant consideration for the decision-maker at the time of making the decision if the applicant at that time holds a current student visa. At the time the Tribunal made its decision, the applicant did not hold any student visa. At the date of the delegate's decision on 17 June 1999, the applicant held only a bridging visa in Subclass 010, her last student visa having expired on 14 June. It can be inferred that it was a bridging visa only which the applicant held at the time of the Tribunal's own decision. Condition 8202 does not apply to such a visa. Criterion 560.213 was therefore only relevant to the Tribunal's determination in so far as it required that the applicant had substantially complied in the past with the conditions to which the visa last held by her had been subject, ie, with the conditions of the visa current from February to 14 June 1999. 14 But notwithstanding the Tribunal's acknowledgment of the existence of this criterion 560.227, it appears to have played no part in the Tribunal's ultimate decision. The Tribunal did not anywhere explain why it thought it useful to mention criterion 560.227, which it correctly thereafter ignored as an irrelevancy. Its decision was based on what appears to be two separate foundations: firstly, its conclusion that the applicant was "on balance … unable to satisfy clause 560.213 of the Regulations" in relation to her student visa current from February to June 1999 [par 26] and secondly, that she was not "a bona fide or genuine student" [pars 26 to 30]. For both reasons the Tribunal found: "on balance, that the visa applicant is not entitled to the visa sought", ie, sought in June 1999. [par 30] 15 In my opinion, it is clear enough that, in considering whether the applicant satisfied criterion 560.213 of the Regulations, the Tribunal asked the right question, viz, whether she complied substantially with the condition of relevance, viz, 8202, in relation to her last student visa. It described that criterion accurately [par 17] and referred to Baidakova's case as identifying "matters to be taken into account when deciding whether an applicant has substantially complied with a visa condition" [par 21]. 16 The Tribunal recorded the applicant's challenge to the reliability of the precise Martin College attendance figures of 73% and 66% quoted by the delegate in his decision and referred to the applicant's freedom of information request to the Department and to the Department's compliance with that request by 21 July 1999 and in effect noted that, by reason of her FOI application, she was, by July 1999, in a position to put before the Tribunal such information on her attendance as was available to the Department if she chose [par 22]. The Tribunal did not record that she had sought to do that. It was not suggested she had. The Tribunal then referred to information from Martin College indicating that the applicant's "attendance rate is 57%" up to 20 August 1999, when she ceased to be enrolled at that College [par 23], ie, the rate for the period of the entire course in which she enrolled in February 1999 that is referred to in condition 8202(b). It noted, but did not further mention, her evidence concerning her having three doctors' certificates, which it appears from the applicant's statutory declaration of 15 June 1999 were before both the delegate and the Tribunal, to support her claims that she could not attend Martin College on 9 and 13 April 1999 and again from 26 April to 4 May 1999 because of ill-health [par 24]. The Tribunal then said:

"25. An applicant for a visa needs to satisfy all of the criteria set out in the legislation for that visa. If the Tribunal is uncertain or unable, on balance, to find whether the facts exist to entitle the Applicant to the visa sought, a decision is to be made against her (see Re Ferreras, IRT Decision 299, 2 September 1991).

26. At the time of the application in June 1999, the visa applicant was the holder of a Subclass 560 Student visa that has since expired. The visa applicant appears not to have complied with condition 8202 of that visa regarding satisfying course requirements. Her poor attendance was the subject of correspondence from Martin College. Indeed the Tribunal notes that the visa applicant has not had an attendance record at Martin College of 80% or over from at least the time her visa was granted in February 1999 to the time of her application for the Subclass 560 visa in June 1999 or until the end of her course as required by condition 8202 of her then visa. Consequently the visa applicant on balance is unable to satisfy clause 560.213 of the Regulations. As well in the circumstances the Tribunal doubts her bona fides and that she is genuine in his (sic) desire to stay as a student here."

17 The question arose at the hearing before me whether the Tribunal's comments in par [25] indicate that it disposed of the case against the applicant by deliberately refraining from making findings on the matters relevant to the issue of substantial compliance because it considered that the responsibility for clarifying the relevant facts rested with the applicant and she had failed to discharge the onus she bore in that regard. Counsel for the applicant submitted that this is how the Tribunal proceeded to its determination against the applicant, in so far as the Tribunal based that determination on the ground explained in its reasons in par [25] and par [26], excluding the last sentence. (In that last sentence of par [26], the Tribunal appears to have turned to explaining why it considered there was a second ground upon which the applicant's case failed, the ground developed there and in pars [27] to [30].) 18 The respondent submitted that the significance of what the Tribunal said in par [25] was to be found in s 65 of the Act. Before the decision-maker (whether that be the Minister, his delegate or the Tribunal) is entitled to grant a visa of the kind sought by the applicant, the decision-maker must be satisfied, among other things, that the other criteria (ie, other than the health criteria) for the visa in question that are prescribed by this Act or the Regulations have been satisfied: see s 65(1)(a)(ii). It was then submitted that all the Tribunal did by making the comments in par [25] was acknowledge that the task for it in determining whether to grant the applicant her student visa in accordance with s 65(1)(a)(ii) was to determine whether, at the end of the day, it was satisfied that criterion 560.213 was complied with, which required it to be satisfied that condition 8202 was substantially complied with. It was said that par [25] should not be read as a statement by the Tribunal that it approached the case on the basis that the applicant must fail unless she discharged the persuasive burden of proving to the civil standard of proof the facts necessary to show that this particular criterion and this condition had been complied with, ie, the facts necessary to show that she was entitled to the visa she sought. 19 Respondent's counsel, correctly in my opinion, accepted that common law concepts of onus of proof have no role in proceedings in the Migration Review Tribunal. See McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356 - 357, 366 and 369; Cam v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 14 and cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282 - 283. (To say that notions of onus of proof are irrelevant is not, however, to say that it is not in some circumstances appropriate for the Tribunal to have regard to common law standards of proof, as opposed to the incidence of the burden of proof, and to reach conclusions of fact on some matters only if satisfied as to the existence of those facts "on the balance of probabilities arising from the available information before the decision-maker". See Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at 417 - 420.) 20 These competing submissions necessarily invite the Court to determine just how the Tribunal reasoned its way to dismissing the applicant's application on this ground. I was reminded that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon judicial review by over-zealously seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Wu Shan Liang at 272. This principle of judicial restraint applies to all reviewable administrative decisions including those of the Tribunal. But it does not, I think, apply in the same way to all such decisions. The rigour with which it constrains a court in examining a decision-maker's reasons will reflect the nature and role of the particular decision-maker. Members of the Migration Review Tribunal perform a significantly different function from public servants in the mainstream of federal executive activity who, from time to time, are called upon to make administrative decisions as part of a range of duties conferred on them. The Tribunal is a specialist decision-maker charged with reviewing lower-level administrative decisions. The obligation imposed by s 368 the Migration Act 1958 (Cth) to provide in written form both reasons and findings, in the context of its decisions being subject to judicial review, shows that the Parliament expects the Tribunal to be capable of giving a coherent and informative explanation for how it reaches its ultimate conclusion for or against an applicant. The principle of restraint is one that cautions against too zealous a search for error. It is not a principle that immunises the Tribunal's reasoning from that critical examination which is part and parcel of the function of a court charged with review of the Tribunal's decision to see if it is flawed with reviewable error of the kinds listed in s 476 of the Act. 21 In Re Ferreras [1991] IRTA 299 (2 September 1991), the Immigration Review Tribunal reviewed the refusal to grant the applicant a visitor visa. It set out in par [7] of its reasons the criteria prescribed for the grant of such a visa and, in pars [11] to [13], turned to two of those criteria, saying:

"Criteria J and K comprise what is now commonly classified as the 'bona fides' requirement. They effectively prescribe that the Tribunal must be satisfied on the balance of probabilities that the principal's proposed visit to Australia is 'genuine' and not intended to enable her to become a permanent resident of Australia"

22 The Tribunal then went on to consider various decisions in the Administrative Appeals Tribunal and a decision of Fox J in this Court. It concluded that the effect of these decisions was summed up in a dictum in the Tribunal to the following effect:

"… 'as a matter of common sense', to use His Honour's words, he who asserts, or seeks a result, must prove. Such proof must make possible a finding, from the whole of the evidence and on the balance of probabilities, of the facts that are fundamental to a claim."

23 This dictum deals with both the incidence of the persuasive burden of proof and the standard to which proofs must rise to justify a finding of fact. 24 The Tribunal noted the decision of the Full Court in McDonald and said, erroneously, that: "The result flowing from the Court's dicta however do not appear to be much different from that raised by the decisions referred to above.". The Tribunal concluded:

"… When the whole of the evidence has been considered against the statutory requirements and a Tribunal is left in a state of uncertainty as to whether the facts necessary to activate the relevant statutory power have been established it must decide against the exercise of the power. In the context of the instant case if having carefully considered the whole of the evidence, the picture is still unclear as to whether there exists an intention to make a 'genuine' visit such that the Tribunal on the balance of probabilities is not able to make a finding in this regard then the criterion has not been satisfied and the application for the visa must fail."

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.

Solicitor for the Respondent: Blake Dawson Waldron