the Tribunal'S Decision
6 The Tribunal noted that one of the criteria to be satisfied at the time of the application for the grant of a Student (Temporary) (Class TU, Subclass 560) visa is that "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" (cl 560.213 of Schedule 2 to the Regulations) and that the applicant continues to satisfy this criterion (cl 560.227 of Schedule 2).
7 The applicant last held a Subclass 560 visa, which included the condition that "8202. The holder must satisfy course requirements".
8 The Tribunal noted that the Policy in relation to condition 8202 was found in Procedures Advice Manual 3 ("PAM3"), relevantly as follows:
"Loss of student status
11.11 Condition 8202 states that the holder 'must satisfy course requirements'.
11.12 Except for certain students undertaking English courses or courses at non-government institutions (see paragraph 11.16), generally policy does not envisage students who do not comply with this condition coming to attention unless the student has lost the student's student status i.e. unless the institution, DEETYA or AusAID formally withdraws/revokes the student's student status. (This action usually results from the student having failed to meet or abide by the standards or conditions of the institution e.g. failed examinations or failed to submit course work, to complete course assignments or to maintain valid enrolment or a satisfactory attendance record.) However, there may be circumstances where other information may lead to DIMA investigation.
11.13 As a general rule,
· While a student retains student status they are considered to be complying with this condition unless there is clear evidence to the contrary;
· A student who has withdrawn from their original course and transferred to another course may be regarded as having continued to satisfy course requirements if they were up to date with their studies at time of withdrawal;
· Students completing a course which finishes at the end of the standard academic year (i.e. a course approximately 40 weeks in duration) and who have been accepted into a course commencing at the beginning of the following academic year (i.e. approximately 3 months after the previous course finishes) are considered to be complying with this condition;
· Students completing a course which finishes DURING the standard academic year may be considered to be complying with this condition provided no more than ONE month elapses before they begin another course.
11.14 Any student whom a DIMA officer suspects is not complying with this condition should be interviewed and the following considered:
· The student's reason(s) for, not abiding by the standards or conditions of the institution. Failure to pass a course does not in itself mean that the student is not complying with this condition. However, reasons for failure should be investigated as failure may be an indication that the student's attendance record has not been satisfactory;
· Whether the circumstances were reasonably beyond the student's control (i.e. absence/failure due to illness or non-elective surgery);
· Whether the student is able to provide evidence in support of these circumstances (e.g. medical certificates); and
· Whether the student has decided to leave Australia or has enrolled in another institution or for another course and would meet legislative requirements for the grant of a visa 560.
11.15 Notwithstanding the loss (or probable loss) of student status, it is open to the officer, having taken all the circumstances into account, to find that the student is complying with the condition.
11.16 Regardless of the above, students (other than displaced students) who were granted their visa to undertake:
· An ELICOS course (whether at a government or non-government institution); or
· A course at a non-government institution other than a university;
And who apply for a further visa are, under policy, and in all cases, required to provide evidence of their attendance record from the institution where enrolled. (It is accepted that displaced students cannot provide this evidence.) As a general policy guide, an attendance rate of less than 90% in the current course is unsatisfactory."
9 The Tribunal stated that the issue was whether the applicant had "complied substantially" with condition 8202 from 27 March 1997 to 10 May 1999.
10 The Tribunal said (at 42 - 43):
"42. In Baidakova [v Minister for Immigration and Multicultural Affairs [1998] FCA 1436], Katz J referred to matters to be taken into account when deciding whether an applicant has substantially complied with a visa condition. Katz J said:
'…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.'
43. The Tribunal has taken into account the factors referred to in Baidakova (which in turn refers to the decision of Sackville J in Kim v Witton (1995) FCR 258). It is clear from these decisions that an applicant might 'comply substantially' with a condition imposing a prohibition, even if the condition has been breached. In Kim v Witton, Sackville J referred to the IRT observation in Re Wakefield, unreported, 6 March 1992, at 4, that the regulations contemplate that 'some degree of non-compliance with visa conditions' may be permitted. He suggested that 'whether the applicant has 'complied substantially' with a condition prohibiting work is a question of fact, to be determined having regard to the particular circumstances of the case.' His Honour also suggested that the statement of principle by the Immigration Review Tribunal in Re Sekido, unreported, 6 March 1992, was broadly correct. In Re Sekido, the Senior Member considered that it was appropriate, in determining the question of substantial compliance, to take into account the 'proportionality' of the breach and the bona fides (or lack of bona fides) of the applicant. Sackville J then set out the factors later adopted in Re Baidakova. He indicated that 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."
11 The Tribunal found that in February 1997 the applicant enrolled in a two-year Diploma of Management course at Skywell College. On 28 January 1998, Skywell College had issued a non-compliance notice stating that the visa applicant had failed to complete his nominated course. The only records located in the College indicated attendance of 30 per cent from 14 April 1997 to 21 July 1997. The applicant accepted this figure as correct; however, he claimed that it had not been adjusted to reflect his absence in Nepal from 2 April 1997 to 7 July 1997.
12 The Tribunal found that Skywell College had no record of the applicant's attendance after July 1997 or of any subjects completed and passed by the applicant. This was contrary to the account given by the applicant, who had suggested that he returned to the College and passed two subjects. However, the applicant had no record of his academic results from Skywell College.
13 The Tribunal noted that the applicant claimed that the College issued an attendance certificate showing over 90 per cent attendance from February 1997 to February 1998 in connection with his mother's visa application. But, the applicant did not have a copy of that certificate and the Departmental records of his mother's application had been destroyed.
14 The Tribunal considered the question of substantial compliance on the basis that the applicant was attending classes from February 1997 to March 1997 before he returned to Nepal. The Tribunal noted that there was no documentary evidence that the applicant had passed any subjects at Skywell or that he had attended at all after July 1997.
15 The Tribunal went on to find that it was not satisfied that the applicant was attending Skywell, as required, in the second half of 1997 or in 1998.
16 The Tribunal noted that the applicant had asserted that he had achieved satisfactory results in three terms at CQU. However, the academic transcript, which was finally provided in response to a Tribunal request, showed that he had not passed any subjects and that his record at CQU recorded twelve "absent fail" grades over the three terms. The Tribunal said that this discrepancy raised "considerable concern as to the credibility of the visa applicant".
17 The Tribunal further noted that, despite the issue of the non-compliance notice by Skywell College on 28 January 1998, the applicant did not provide an attendance certificate or academic transcript to the Department as requested by letter of 10 May 1999. The Tribunal found that although he did provide some documentary evidence of enrolment (as opposed to satisfactory compliance) to the Department in connection with his mother's visa application, there was no evidence that the applicant was enrolled in or attending Skywell College in 1998.
18 Noting the applicant's claim that his poor attendance was due to the illness experienced by his wife, associated with her pregnancy and child birth, the Tribunal said it was not satisfied that the limited documentary evidence before the Tribunal supported the applicant's version of these events.
19 The Tribunal remarked that the applicant's mother was in Australia from 9 April 1998 to 6 September 1998 for the purpose of assisting in caring for his wife and child, but there was no evidence that the applicant undertook any study during this time.
20 The Tribunal further found that, although the applicant took steps to arrange University enrolment (at CQU), he did not, as previously mentioned, pass any subjects during three terms of study at the University.
21 The Tribunal concluded, from the evidence, that it was not satisfied that the applicant had complied substantially with condition 8202.