Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT HEEREY AND SUNDBERG JJ: 1 The applicant, a citizen of Sri Lanka, applied for a student (temporary) visa. A delegate of the Minister refused to grant the visa because he was not satisfied that the applicant met cl 573.212 of Sch 2 of the Migration Regulations 1994 (Cth) which required that the applicant has "complied substantially" with the conditions to which the visa last held by the applicant is or was subject. 2 On review the Migration Review Tribunal affirmed the refusal. 3 The applicant's most recent visa was a subclass 560 student visa which was subject to condition 8202(3) and in particular par (d) thereof. Condition 8202(3) provided: "8202(3) The condition is that: (a) in the case of the holder of a Subclass 560 visa who is an AusAIDor 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 The application for judicial review has been referred by the Federal Magistrates Court to a Full Court of this Court because both parties submit that the Tribunal should not have followed the decision of Ryan J in Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 261. The parties invite us to hold that Weerasinghe was wrongly decided. 5 In that case his Honour held that there was no room for substantial compliance in the case of condition 8202(3)(d). His Honour said at [10], after referring to the earlier decision of Katz J in Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436, "I do not consider that Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 to which the Tribunal referred, has any bearing on satisfaction of Condition 8202(3)(d) in the form in which it applied to the applicant. The criterion which Ms Baidakova had to satisfy was that imposed at that time by cl 560.213 of Sch 2 to the Regulations which was that an applicant who had applied for a visa of the relevant class, at the time of the application 'has complied substantially with the conditions to which the visa … held by the applicant is … subject' (emphasis added). The relevant condition is [sic] Ms Baidakova's case was that she satisfy [sic] the requirements of the course the undertaking of which had been the basis of the grant to her of a temporary entry permit. One such requirement was that she attend at least 90% of the classes for the course in which she had enrolled. By contrast, there is no scope for operation of the distinction between strict compliance and substantial compliance on Condition 8202(3)(d). Nor can the guidelines in the departmental Procedures Advice Manual ('PAM') to which the Tribunal and the written submissions referred, bear on the application of that condition. As the Tribunal pointed out at [31] of its reasons quoted above, the PAM guidelines require the Tribunal to have regard to circumstances beyond the control of the visa applicant such as absence or failure due to illness and evidence of those circumstances such as medical certificates. However, the presence or absence of a certificate from the education provider is not susceptible to being affected by circumstances beyond the applicant's control in that sense. Either the education provider has certified that the applicant's academic results for the relevant period have been at least satisfactory or it has not. Discretionary factors of the kind to which Katz J referred in Baidakova and which are noted in the PAM may legitimately influence the education provider in deciding whether or not to certify that a result has been at least satisfactory but, in the absence of any certificate at all, those factors can have no bearing on the decision which the Tribunal or this Court is required to make." (our emphasis added) 6 The applicant was enrolled at the Central Queensland University in the course of Bachelor of Business (Human Resources Management). He had successively held subclass 560 student visas valid until 31 January 2000, 2 February 2001 and 15 March 2004. The last mentioned visa was subject to condition 8202(3) already mentioned. 7 On 12 March 2004 the applicant applied for a further student (temporary) visa. In his application the applicant claimed his results had been adversely affected by a number of matters and in particular: · in January 2002 he suffered work-related injuries involving multiple fractures of his right wrist and forearm which required surgery and physiotherapy over the next two and a half years; · his father had developed Alzheimer's dementia in 2001 and Parkinson's syndrome in 2003 and ultimately died in July 2004. The continuing news of his father's poor health affected the applicant "profoundly"; and · he had been taking medication for depression and pain management. 8 The Tribunal found that the University had not certified that the applicant's academic results for the relevant periods were at least satisfactory. Accordingly the applicant had not complied with the condition. 9 In supporting the application, counsel for the Minister submitted that the statement already quoted from Ryan J was obiter since the Tribunal in that case had found that the applicant had not substantially complied with condition 8202(3)(d), and that in any event his Honour held the Tribunal's decision must also be upheld on the basis of a separate and distinct finding in relation to another condition. 10 However, Ryan J's statement, if correct, will be determinative of the present case. Practically speaking therefore it does not matter whether in the actual setting of Weerasinghe it was obiter. 11 Counsel further submitted that if a decision maker can take into account "qualitative" considerations, for example under condition 8202(3)(c) by being satisfied with, say, 70 per cent instead of 80 per cent attendance, a similar approach should also be adopted in cases where there is total failure but such failure is due to some mitigating or extenuating circumstances. 12 Since the regulations include some conditions to which the concept of substantial compliance can have no logical application, the regulations are to be read as not admitting any qualification of substantial compliance in such cases. For example, in the present case the visa applicant must be the holder of an existing visa of a specified kind. Either that condition is satisfied or it is not. 13 An analogy is provided by Hunter Resources Ltd v Melville (1988) 164 CLR 234. Mining regulations required tenements, the subject of applications, to be marked out by pegs at intervals not exceeding 300 metres. The High Court held that a mining warden had correctly refused an application where the intervals in three places exceeded 300 metres by between 1 and 3 metres. Dawson J said at 249: "…this is a case, in my view, in which substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not. … I am unable to understand how it can be said that to exceed the maximum limit was substantially to comply with it." In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [92] McHugh, Gummow, Kirby and Hayne JJ, notwithstanding their abandonment of the traditional mandatory/directory distinction, cited the above statement with approval. 14 Turning to condition 8202(3), we note first that counsel accepted that the four paragraphs of the condition are cumulative; there would not be substantial compliance if an applicant satisfied three paragraphs. 15 The substantial compliance requirement might, as counsel's argument suggests, be apt in the case of par (c) where the condition is expressed in terms of the decision-maker being satisfied of a particular percentage of contact hours. However, in the present case it is not suggested there was any certificate at all. There was thus no compliance, let alone substantial compliance. Still less could reasons or explanations for non-compliance amount to compliance, substantial or otherwise. 16 There is an obvious policy behind the way the condition is framed. Questions of academic progress should be left to the judgment of the education provider rather than a Departmental decision-maker or the Tribunal, who are less well fitted to make such judgments: Khan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 141 at [4]. 17 Baidakova and the earlier decision referred to by Katz J in that case, Kim v Witton (1995) 59 FCR 258 (Sackville J) dealt with different conditions, to which a substantial compliance criterion could be applied. In Baidakova the condition required a certain percentage of class attendance; in Kim, it was a condition requiring the temporary entry permit holder not to work. 18 While one is sympathetic with the human problems the applicant faced, the solution is an appropriate amendment to the regulations to make allowance for hardship. 19 The application will be dismissed. In the circumstances, counsel for the Minister did not seek an order for costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey and Sundberg.