Mohammed v Minister for Immigration & Anor [2015] FCCA 1282

1. This is an application for a Constitutional writ in respect of a decision that the Tribunal made on 22 February 2014, affirming a decision not to grant the applicant a Student (Temporary)(Class TU) visa. The singular ground raised by the application is as follows:
   • 1. The Tribunal erred by misinterpreting the meaning of the term "complied substantially" in cl 572.235 of Schedule 2 to the Migration Regulations 1994.
   • Particulars
   • The Tribunal considered that it was not possible for a person to comply substantially with condition 8202(3) of a student visa, even though a decision had been made to revoke the cancellation of his visa.
2. Mr Jones, solicitor for the applicant, sought a transfer of the matter to the Federal Court under s.39 of the Federal Circuit Court of Australia Act 1999. The grounds for the adjournment were, in substance, that the ground raised by the applicant in this Court is doomed to failure as this Court is bound by the authority of Casse v Minister for Immigration [2013] FCA 1007. Mr Jones identified that the applicant wished to challenge the correctness of that authority but accepted that this Court was bound by that decision and no argument was developed as to the basis upon which that decision could be distinguished.
3. The mere fact that there is binding decision of the Federal Court of Australia on an issue sought to be raised is not a basis upon which the power under s.39 should be exercised. There may be circumstances where there is a conflict of authority that might warrant consideration of a transfer under s.39 but that is not this case. I take into account that the application was filed on 24 March 2014 and that it is the ordinary duty of this Court to exercise its jurisdiction properly invoked.
4. The application for the Constitutional writ under s.476 is clearly within this Court's jurisdiction and consistent with the ordinary duty of the Court, it is not appropriate, in these circumstances, to transfer the matter under s.39. It is for these reasons the request for transfer is refused.
5. The Tribunal identified that the issue of substantial compliance was raised before the Tribunal and that the Tribunal was bound by the reasoning of the Full Federal Court in Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 167.
6. The delegate had refused to grant the visa on the basis that the applicant did not satisfy clause 572.225 of Schedule 2 to the Migration Regulations 1994 because he had not substantially complied with the conditions of the last substantive visa and of any subsequent bridging visa. The applicant appeared before the Tribunal to give evidence on 22 February 2014 and was assisted by a migration agent. The Tribunal noted the applicant currently has an offer of enrolment in an Advanced Diploma of Marketing and noted that the issue in the present case is whether the applicant meets clause 572.235. The Tribunal noted that that criterion required:
   • 7. ... This visa criterion requires that, at the time of this decision, the applicant has complied substantially with the conditions of the last substantive visa held by the applicant, and any subsequent bridging visa.
7. In this regard, the applicant's last substantive visa was a Class 572 visa that was subject to conditions including condition 8202. The applicant subsequently held a bridging visa that was subject to condition 8105.
8. The Tribunal noted that the focus of the review is whether the applicant substantially complied with condition 8202 and in particular 8202(3), which required the visa holder's education provider has not certified the visa hold as not achieving satisfactory course progress and/or attendance. The Tribunal noted that it was condition 8202 that applied in this case, which was set out as an attachment to the decision.
9. The Tribunal noted that the applicant was enrolled in the course specified in the certification that was made on 19 July 2011 when his student visa was in effect. On 19 July 2011 the education provider certified the applicant was not achieving satisfactory course attendance in the course Diploma of Accounting. On 19 July 2011 the applicant was issued with a notice under s.20 of the Education Services for Overseas Students Act 2000. The Tribunal noted the applicant was informed that he failed to meet the requirements of condition 8202(3)(b) and he had failed to meet the requirements of condition 8202(3), and had breached condition 8202.
10. It was in those circumstances that the Tribunal found:
    • 25. For these reasons, as there is a relevant certification before the Tribunal from the education provider for the purposes of Condition 8202(3)(b), the Tribunal finds that the applicant did not comply with Condition 8202(3)(b). The Tribunal has considered the applicant's submissions and evidence and the oral submission of his representative. However the Tribunal has no discretion to take into account the reasons that the applicant did not comply with Condition 8202. The Tribunal is unable to consider whether the applicant complied substantially with the condition. The Tribunal finds that the applicant did not comply with Condition 8202 of his previously held student visa.
    • 26. As the applicant's education provider has certified the applicant as not achieving satisfactory course progress for the purposes of Condition 8202(3), the applicant did not comply with Condition 8202(3). As such the applicant does not satisfy cl.573.235.
11. In Casse v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 1007 North J relevantly held:
    • 12. In Jayasekara, Heerey and Sundberg JJ considered a previous version of condition 8202(3). The previous version is not relevantly different. Their Honours said at [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 the specified kind. Either that condition is satisfied or it is not.
    • 13. The same reasoning was applied in Patel and Hassan.
    • 14. The Federal Circuit Court's conclusion is supported by the statutory scheme which applies to the certification process.
12. That reasoning is clearly binding upon this Court. The application fails to disclose a jurisdictional error. The application is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street