Limbu v Minister for Immigration & Multicultural Affairs

Specifically, in respect of the pay slips for the period 2 July 1999 to 27 August 1999 the agent stated that "[t]he applicant says that the pay slips for this period could not be obtained". After the Tribunal held a hearing the applicant's agent again wrote to the Tribunal submitting further information about the financial support available to his client. 12 The Tribunal set out its findings and reasons at [19] - [36] of its statement. It dealt with the question of substantial compliance after referring to Katz J's observations in Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436. Later it turned to the requirements of the two conditions and said: "31. The delegate at first instance believed that the visa applicant did not substantially comply with his visa conditions. This was understandable as the visa applicant did not supply him with requested information. At the same time he was of a belief that the visa applicant had breached the work rights provision in condition 8105. From evidence provided to it subsequent to the delegate's decision, the Tribunal is of the view that the visa applicant did breach condition 8105 and the failure to produce weekly pay chits is, in the opinion of the Tribunal, highly irregular, and gives added credence to the finding of the delegate at first instance. 32. In regards to the breach of condition 8202 the visa applicant seems from his own submission to have failed to substantially comply with that condition. 33. In a submission presented to the Department, the visa applicant admits that he was absent from the college and indicates that the Department should have proceeded to cancel his visa. He has presented no evidence to make the Tribunal come to a different conclusion than that he failed course requirements. Further, the visa applicant has not provided any proper documentation which contradicts the delegate's findings that he has breached his condition relating to work rights - such as proper payslips. Nor has the visa applicant submitted any evidence relating to his genuineness as a student. 34. The delegate made no finding in relation to the visa applicant's financial ability. However, from the evidence before the Tribunal it appears that he now has the financial ability to undertake the course without contravening any conditions relating to work. This, however, is a result of recent remittance sent as a last resort and does nothing to detract from the substantial previous breach of condition 8105 elaborated in the delegate's decision. 35. The Tribunal finds that the visa applicant did not 'comply substantially with the conditions of the visa last held was subject at the time of the visa application'. He, therefore, fails to satisfy the criterion in clause 560.213 of Schedule 2 and ipso facto clause 560.227 of Schedule 2. 36. The visa applicant has also failed the criterion in clause 560.224 in that he has not satisfied the Tribunal that he is 'a genuine applicant for entry and stay as a student'." 13 The Tribunal also there considered the question whether the applicant satisfied cl 560.224(1) which the delegate had found was not satisfied. The Tribunal took a favourable view of some of the matters specified in the paragraphs of subcl (1) but answered the question ultimately posed in the same terms as the delegate, that is, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student. The Tribunal had regard, as it was bound to do, to the matters specified in pars (a) and (b) and, unlike the delegate, made a positive finding in respect of par (a). It did so, as is clear from its reasons, on the basis of the information supplied by the applicant regarding his financial support. However, in relation to par (c), it concluded plainly enough that it was not satisfied that the applicant intended to comply with any condition subject to which a visa was granted, and accordingly it reached the conclusion I have mentioned. 14 The ground of review upon which the applicant relies is that specified in s 476(1)(e) of the Act. The other grounds set out in the application commencing this proceeding have been abandoned. It is important to bear in mind the limitations imposed by par (e) which relevantly require that the Tribunal's decision involved an error of law which was either an error involving an incorrect interpretation of the applicable law, or an incorrect application of the law to the facts as found by the Tribunal. The specification of the "facts as found" is important because whilst it is true that the Tribunal is not a court of law and that pleadings do not confine the issues before it, it is necessary to have regard to the way in which the application was pursued in order to see how the Tribunal dealt with questions posed for determination. 15 The applicant submitted that the Tribunal misconstrued cl 560.213 in relation to substantial compliance. He relies upon a recent decision of Madgwick J in Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 359. However, that decision was not concerned with the meaning of cl 560.213 but with the construction and validity of the new condition 8202. The Tribunal's reference to Baidakova was appropriate. Clearly, it was important to examine the requirements of conditions 8105 and 8202. The terms of each provision are set out in the Tribunal's decision, and it can have been in no doubt about the terms of condition 8202 that governed the last visa granted to the applicant. As I mentioned earlier, the focus on attendance may have been attributable to the specification given to the new condition 8202 by subsequent amendment. However, read fairly, it seems to me that "course requirements" in the context of Part 560 of the Regulations assume an attendance at courses. So much is apparent from the provisions of the Part which refer to courses being provided by registered education providers. Importantly, the conditions which are imposed under Part 560 (including condition 8105) and the focus in cl 560.224 about the conditions of visas relating to work emphasize that only a limited amount of work will be permitted. The words of condition 8105 and its context suggest that in those weeks during which an institution is "in session" attendance is assumed. 16 The applicant's first point in relation to the requirements of condition 8202 is that the Tribunal misconstrued the applicant's letter to the Department of 20 January 2000 set out at [7] above. That seems to me to be certainly a reasonably arguable proposition. The question is whether that involves any error of law. Counsel for the Minister fairly conceded that another construction of that letter was available but the construction placed upon it by the Tribunal, which represents a finding of fact, is that the applicant in effect admitted in that letter that he did not attend the business college. Beyond that, of course, there is the material before both the delegate and the Tribunal which the applicant's solicitor fairly concedes would lead at least to a conclusion that, in respect of each of the fortnightly periods a person had worked for more than twenty hours. 17 However, the applicant says that it is possible to infer that the institution may not have been in session for a ten week period in the middle of the calendar year. Whether that is a necessary inference or not, it seems to me that it was a finding of fact for the Tribunal to make and involved no error of law. Accordingly, in my opinion, the Tribunal did not misconstrue or misinterpret either of those conditions nor did it misapply them to the facts as found by it. 18 That leaves the question of whether there has been an error of law involved in the Tribunal's decision in relation to cl 560.224(1). The applicant submits that par (c) is concerned with subjective intention at the time of the Tribunal's decision. For present purposes I am prepared to accept that. But the question is whether the Tribunal, in making its finding about the applicant's subjective intention, is precluded from having regard to the findings it has made in relation to the substantial breach of conditions. That is, breaches of conditions 8202 and 8105 that occurred in respect of the last visa granted to the applicant. In my opinion the Tribunal could not be precluded from having regard to that material. As a matter of logic, it may have regard to the applicant's prior breaches in forming a view of the subjective intention of the applicant. Certainly the Tribunal is not, as a matter of law, precluded from having regard to these breaches. 19 Clause 560.224(1)(a) singles out financial ability in relation to the question of whether an applicant would be likely to contravene any condition of the visa relating to work. Although par (a) singles out the condition of a visa relating to work, the Tribunal may in my opinion, still have regard to such a condition when considering, under par (c), whether an applicant intends to comply with any conditions to which a visa will be subject. In that respect too, although such an argument was only faintly pressed, I do not think that the Tribunal has erred. 20 No error of law has been made out. The application will 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 Whitlam.

Associate: Dated: 1 June 2001 Solicitor for the applicant: Mr Simon Diab

Solicitors for the respondent: Blake Dawson Waldron