Lam v Minister for Immigration & Multicultural Affairs

Kim v Witton and Baidakova 19 In Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578 at [13] - [14], I summarised Kim v Witton and Baidakova in the following terms: "Kim v Witton (1995) 59 FCR 258 was a case in which the Court dealt with an application for judicial review of an IRT decision upholding the cancellation of a visa for breach of a condition that the visa holder not work in Australia. One of the issues was whether it was appropriate for the Tribunal to apply the test of substantial compliance in determining whether there had been a breach of the condition warranting cancellation of the visa. In the course of determining that substantial compliance was sufficient, Sackville J said at 271: 'In my opinion, in determining whether an applicant has complied substantially with a condition imposing a prohibition, 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. In general, it is a matter for the Tribunal to assess the weight to be accorded to these factors, having regard to the circumstances of the case.' Baidakova v Minister for Immigration & Multicultural Affairs (Federal Court of Australia, Katz J, 12 November 1998, unreported) was a different case. It was a case in which the Court was exercising its function of judicial review with respect to a decision to refuse to grant a visa. At the time of her application for that visa, the visa applicant held a temporary visa subject to a condition that she satisfy the requirements of the course which she had undertaken. Again, the issue of substantial compliance arose. Katz J quoted from the judgment of Sackville J in Kim v Witton, including the passage I have set out above. This explains the reference the Tribunal made in its reasons for decision in the present case to Baidakova." 20 After referring to the circumstances of Shrestha and to High Court authority, including Yusuf, I continued at [17]: "The argument advanced by counsel for the applicant in the present case sought to elevate the considerations listed by Sackville J in Kim v Witton to the status of relevant considerations in every case. I do not think that they bear that character. They were merely matters that, as a matter of logic, would have been relevant in the circumstances of the case with which his Honour was dealing. No doubt in many cases, those considerations, or similar ones, will be relevant, as a matter of logic, to a determination whether there has been substantial compliance with a condition in a visa. This does not mean that, in every case, there is an obligation on the decision-maker to take into account every one of those factors. The circumstances of the case will determine what the statutory duty of the decision-maker is. Baidakova is an illustration of this proposition. Although Katz J set out what Sackville J has said, his Honour does not appear to have attempted to state the list of matters in Sackville J's judgment in the form of a 'test'. Indeed, prior to quoting a passage from the judgment of Sackville J, Katz J said: 'In the course of dismissing the applicant's application for review of the Tribunal's decision, Sackville J discussed (at 270-72) the requirement of substantial compliance as it applied in the context of the case before him.' The emphasis in the quote is mine. The remark illustrates the view that Katz J took of what Sackville J had said. Indeed, in Baidakova itself, the issue of substantial compliance turned upon whether the measurement of compliance was quantitative (the percentage of classes attended) or qualitative. His Honour did not assess the performance of the IRT against the list of matters referred to in Sackville J's judgment as though those matters constituted a 'test'." 21 Kim v Witton and Baidakova were also central to the reasoning of Heerey J in Modi. On appeal in Modi at [17], the Full Court said: "Sackville J was careful to say that the list of considerations and circumstances was not intended to be exhaustive and that, in general, it was a matter for the Tribunal to assess the weight to be accorded to such factors, having regard to the circumstances of the case. He added (at 271): 'The mere fact that an applicant did not appreciate that his or her conduct breached a condition does not necessarily establish that he or she had complied substantially with that condition.'" 22 At [23], the Full Court said: "In our view, the correct approach to the issues in this case is that taken by Gray J in Shrestha at [17] where his Honour pointed out that the considerations listed by Sackville J in Kim v Witton were not to be elevated to the status of relevant considerations in every case. His Honour observed that the circumstances of the case will determine what the statutory duty of the decision-maker involves in those circumstances and that there is no rigid test." 23 It is therefore necessary to realise that the list of relevant circumstances to be considered, set out by Sackville J in Kim v Witton and referred to by Katz J in Baidakova, is by no means a compulsory checklist in every case in which there is an issue of substantial compliance with a visa condition. The circumstances of each case will determine what factors the decision-maker takes into account. The weight to be given to those circumstances is essentially a matter for the decision-maker. In a case in which the decision-maker is the Tribunal, it is not open to the Court to set aside the decision on the basis that the Court disagrees with the weight to be attributed to a particular factor. With this consideration in mind, I turn to the particular submissions made on behalf of the applicant.

Qualitative test 24 The applicant complained that, in considering the nature of the breach of condition and the significance of the breach, especially by reference to the purposes for which the visa was granted, the Tribunal applied a quantitative test, whereas it should have applied a qualitative test. He argued that the Tribunal simply determined the number of subjects he had failed and treated that number of failures as a breach of the condition, and as a significant breach. 25 In Kim v Witton, Sackville J approved the approach taken by the Immigration Review Tribunal in a case called Sekido, in which that tribunal had taken into account both the proportionality of the breach and the bona fides, or lack thereof, of the visa holder. In Baidakova, the course requirement in issue was attendance at not less than 90 per cent of classes. It was a case that lent itself to the application of a quantitative test. Katz J expressed the view that it was appropriate for the Tribunal in that case, to have taken account of factors other than the number of classes that the visa holder had failed to attend. These factors included health problems experienced by the visa holder. In that sense, Baidakova could be said to be a case in which a qualitative test was applied, although there was no suggestion that the Tribunal should have ignored the failure of the visa holder to attend at least 90 per cent of classes. The "qualitative" factors were taken into account for the purpose of determining whether, despite the shortfall in the classes attended, it could be said that there had been a substantial non-compliance with the condition. 26 It cannot therefore be said that a quantitative approach is to be disregarded. It was open to the Tribunal in the present case to rely upon the proportion of subjects failed by the applicant as a significant indication of whether he had complied substantially with course requirements. 27 Nor can it be said that the Tribunal in the present case determined the issue of substantial compliance solely on the basis that the applicant had failed a high proportion of his subjects. The criteria set out in PAM3, which the Tribunal quoted in its reasons for decision, could be said to be relevant to a "qualitative" test. In one passage which I have quoted above, the Tribunal discussed the awareness of the applicant that his performance was below the required standard before reaching the conclusion that "in all the circumstances" it found that the breach of condition 8202 was significant. It added that the applicant "appreciated" the breach. It then went on to discuss the applicant's psychological state before coming to its conclusion which, again, I have quoted above. Plainly, the Tribunal was taking into account both the "proportionality" of the breach and the applicant's bona fides, or lack thereof. It may be that the applicant is dissatisfied with the weight given to the evidence about his psychological condition, but that is not a matter about which he can complain when the question is one of error of law.

The finding as to "flouting" 28 In one of the passages I have quoted from the Tribunal's reasons for decision, the Tribunal concluded that, because the applicant was aware that his performance was below the required standard, the breach might reasonably be interpreted as flouting the condition. In the reasons for decision that were the subject of Modi, the Tribunal expressed itself in similar terms. The Tribunal there said that Mr Modi had been made aware by his education provider a number of times that his performance and attendance were not satisfactory. It followed this sentence with the statement: "The breach might therefore reasonably be interpreted as flouting the conditions for which the visa was granted."

29 In his judgment, at [28] - [29], Heerey J said: "The meaning given by the Macquarie Dictionary for 'flout' as a transitive verb is 'to mock; scoff at; treat with disdain or contempt'. Similarly the Shorter Oxford gives the meaning 'to mock, jeer, insult; to express contempt for'. But a reading of par 24 of the Tribunal's decision quoted above indicates that the Tribunal has taken 'flouting' as synonymous with acting knowingly or intentionally. There is a substantial difference between the two concepts. Clearly enough it was open on the evidence for the Tribunal to find that the applicant knew that for much of the relevant period he was not satisfying the course requirements at Chalmers and that that was a breach of his visa condition. But the Tribunal seems to have attributed a more serious level of breach to the applicant by misunderstanding the concept of flouting and using a finding that he flouted the condition as part of its reasoning process to arrive at a conclusion that there was not substantial compliance. I conclude therefore that the Tribunal has misapplied the law and the ground specified in s 476(1)(e) is made out." 30 On this basis, Heerey J set aside the decision under review and remitted the matter to the Tribunal for further consideration according to law. The Full Court allowed the appeal from Heerey J, set aside his Honour's orders and in lieu thereof ordered that the application for review be dismissed with costs. At [24] - [26], the Full Court said: "The Tribunal, in determining whether on the facts found by it Mr Modi had substantially complied with condition 8202, was entitled to have regard to the nature of Mr Modi's conduct that resulted in his having failed to comply with his course requirements. It described that conduct as involving a 'flouting' of the visa conditions. When it did so it was doing no more than making a factual assessment of a matter that it was entitled to take into account in determining whether there was substantial compliance. That factual assessment involved no error of law. As we read the Tribunal's decision, it consciously had regard to the notion of 'deliberate' flouting as an element to be considered in the light of all the circumstances in determining whether there had been substantial compliance. The Tribunal did no more than have appropriate regard to the considerations referred to in cases such as Kim v Witton and Baidakova and its approach did not involve any error of law. As we have noted, it was not disputed that the concept of 'deliberate' flouting could be relevant to the Tribunal's consideration of the application.

It is true that the Tribunal made reference to 'the test' in Baidakova, and as Gray J pointed out in Shrestha, it is not right to regard those cases as establishing any 'test'. We consider however that it is clear from the Tribunal's reasons as a whole and in particular from paragraphs 23, 24 and 28 of those reasons that it was not in truth applying a 'test' and was not thereby diverted from the task of considering whether, in all the relevant circumstances, Mr Modi had complied substantially with condition 8202 of his visa." 31 Modi is in point in the present case. Even if it were the case that the Tribunal misconstrued the word "flouted", by regarding it as synonymous with acting, knowing or intentionally, the Tribunal did not thereby make an error of law. It did no more than to make a factual assessment of a matter that it was entitled to take into account in determining whether there was substantial compliance. Indeed, in the present case, the Tribunal expressed this element of its reasons appropriately when it said: "The visa applicant appreciated the breach."

The applicant's psychological condition 32 The submissions on behalf of the applicant accepted that the applicant appreciated that he was performing below standard in school and therefore he might not meet course requirements. The submission made reference to the reports of the psychologists, saying that they "identified contributive factors for his under performance which led to the alleged breach of condition." The applicant contended that the Tribunal disregarded this. 33 In truth, the Tribunal devoted a substantial paragraph of its reasons to assessing the psychological evidence. It took a view of that evidence that was less favourable to the applicant's case than it might have been. In doing so, however, the Tribunal was exercising its function of finding the facts. Disagreement on the part of the applicant with the facts as found cannot be sufficient to make out an error of law. The applicant simply contended that the Tribunal had made an error of fact. 34 The applicant complained of the finding of the Tribunal that there was no documentation or medical evidence before March 2000 that the applicant was suffering from depression or other conditions that required ongoing medical treatment during the relevant period. The applicant drew attention to evidence that he did seek medical assistance for his sleeplessness during his time at La Trobe University and at Holmesglen College of TAFE. He suggested that the Tribunal failed to take into account the uncontested psychologists' reports of the applicant's depression during the relevant period. Again, these are attempts to revisit the facts, a process which is not open when this Court exercises its function of judicial review pursuant to s 476 of the Migration Act. The Tribunal was entitled to accept or reject the evidence of the psychologists and to give greater weight to one piece of evidence as against another. In any event, all that the Tribunal appears to have been doing was to point out that the applicant had not sought diagnosis or treatment from any psychologist during the period when he was said to be suffering from depression. The psychologists whose evidence was before the Tribunal had examined him after that period and had made their diagnoses on the basis of his retrospective accounts of his symptoms. The Tribunal was well aware of the applicant's evidence that he had obtained sedatives from a doctor on several occasions to assist with his sleeping problems. It recounted that evidence in the course of its reasons.

Other alleged errors of law 35 The applicant's submissions suggested that, although he appreciated that his conduct involved breach of a condition, he had "tried frantically rectifying it" and that the Tribunal should have found that he had at least tried to comply with the condition. Again, this was a matter of fact for the Tribunal. 36 The applicant queried whether the Tribunal had given full consideration to all relevant circumstances of the case, despite its use of the phrase "in all the circumstances". This complaint was made in the context of the argument that the Tribunal had failed to accept the uncontested evidence of the psychologists. As I have said, it is plain from its reasons that the Tribunal had in mind the evidence of the applicant on this subject and did not overlook any of the relevant circumstances. 37 The applicant complained that the Minister had failed to supply the Court with a copy of the transcript of proceedings before the Tribunal. The Minister has no obligation to provide the Court with a transcript of the evidence before the Tribunal. It is open to an applicant for judicial review to obtain and rely on the transcript of proceedings before the Tribunal if it is relevant to an issue raised. The applicant did not make reference to the transcript in the present case.

The "no evidence" ground 38 The applicant raised the ground in s 476(1)(g) of the Migration Act, namely that there was no evidence or other material to justify the making of the decision. This ground can only be made out if one or other of the circumstances specified in s 476(4) can be established. In the present case the only possibility would be s 476(4)(b), namely that the Tribunal based the decision on the existence of a particular fact and that fact did not exist. The applicant made no attempt to establish the ground on this basis. In the application, the ground was particularised as the absence of evidence or other material that the applicant failed to comply with condition 8202 on a proper interpretation of that condition. In the applicant's submissions, it was suggested that the Tribunal had treated the applicant's failure in a number of subjects as intentional or negligent and therefore as a breach of condition. This was not the reasoning process of the Tribunal. It merely took account of the fact that, as it found, the applicant was aware that his performance was below the required standard and appreciated that he was in breach. It made no mention of intentional or negligent breach. The "no evidence" ground is not made out.

Conclusion 39 The applicant has therefore failed to make out any ground of review of the Tribunal's decision. His application must therefore be dismissed. The Minister having sought an order

for costs, no reason appears why such an order should not be made in the Minister's favour.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate: Dated: 20 December 2001 Counsel for the Applicant: Leave was granted to Ms C Lo to appear as a friend of the Court

Solicitor for the Respondent: Australian Government Solicitor