Parajuli v Minister for Immigration & Multicultural & Indigenous Affairs

Introduction 1 This is an application by Mr Rabindra Parajuli ("the applicant") for review of a decision of the Migration Review Tribunal ("the Tribunal") of 31 October 2001. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister"), of 7 October 2000, refusing to grant the applicant a Student (Temporary) (Class TU) visa ("the second visa") under s 65 of the Migration Act 1958 (Cth) ("the Act").

Background 2 The applicant arrived in Australia on 3 July 1998, on a student visa that was valid until 13 August 2000 ("the first visa"). He enrolled in a two-year Diploma of Tourism Management course at Supreme Business College ("the College"). The course was to run from 1 June 1998 until 1 June 2000 though the applicant actually commenced the course in July 1998. The applicant's account of his history as a student was as follows. While undertaking the course he experienced health problems which resulted in him being absent from the College on six occasions between 25 July 1999 and 11 June 2000, and also from 12 June to 23 June 2000. He also encountered difficulties with the College administration which was ineffective and failed to notify students of their results. The applicant completed twenty subjects in the course without receiving notice of his results. As a result of a change in management and ownership of the College in mid-2000, it would have been necessary for him to repeat the course to obtain the Diploma in Tourism Management. That was because the new management did not have a record of performance forthe preceding two years. He did not want to begin the course again, and on 10 July 2000 commenced another two-year course at the College under the new management. The course was a Diploma of Business Management. On 1 August 2000 he lodged an application for the second visa and was granted a bridging visa pending determination of his application. 3 One reason why the delegate refused to grant the second visa was that the applicant's attendance record at the College had been 70% and he had not completed the Diploma of Tourism. The delegate applied clause 560.213 of Schedule 2 to the Migration Regulations which provided that if an applicant for a subclass 560 visa made his or her application in Australia, one of the primary criteria for the grant of the visa was substantial compliance with the conditions of the visa applicant's current or last held visa. 4 The delegate believed, erroneously, that one of the conditions of the applicant's first visa was found in condition 8202 in the following form: Condition 8202. The holder (a) must: … (iii) be enrolled in a registered course; and (b) must (if the holder is not an occupational trainee): (i) attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider; or (ii) if attendance cannot be evidenced, achieve an academic result that is certified by the education provider to be at least satisfactory". While condition 8202 did apply, the terms of the condition considered by the delegate had no application to the first visa when it was issued. The condition in different terms was applicable. 5 On 31 October 2000 the applicant sought a review by the Tribunal of the delegate's decision. In support of his decision not to continue the Diploma of Tourism Management the applicant said in a statement to the Tribunal: "Since I had already completed more than 20 subjects, it would have been very boring and unproductive for me to repeat the same course again by paying substantial amount to the college." 6 The applicant also challenged the accuracy of the attendance certificate provided by the previous management of the College. He said: "The attendance certificate aggregates the period between 1 June 1998 to 1 June 2000 which is not correct and justifiable, in that, the student visa was granted to me only on 22 June 1998, and thereby, I first arrived in Australia on 3 July 1998. It took me more than a week to get adjusted in the College and course, as I was totally new to the atmosphere. … During the above-mentioned period, I had been sick for a couple of weeks. … The 70% attendance is an outcome of wrong calculation and negligent work of the College. My attendance would have been more than 90% had it been calculated correctly having regard with [sic] my medical condition." The attendance figure of 70% which the applicant was referring to, was found in a document (a letter from the College dated 26 July 2000) submitted by the applicant in support of his application for the second visa. 7 The Tribunal set out its findings in a section in its decision entitled "Findings and Reasons". It commenced by considering whether the applicant had complied with condition 8202 of his previous visa. It identified its task in the following way: 25. The Tribunal will first consider whether or not is satisfied that the visa applicant has substantially complied with condition 8202 of his last held student visa. The Tribunal set out condition 8202 as it applied at the time the first visa was granted: "8202. The holder must satisfy course requirements." It was common ground in these proceedings that the Tribunal correctly identified condition 8202 as it applied to the circumstances of the applicant. It was also common ground that the delegate applied a later and inapplicable form of the condition. 8 As the earlier form of the condition did not prescribe a level of attendance, the Tribunal considered the material before it to assess whether condition 8202 had been met by the applicant. It indicated that it would not follow a policy published in the Procedures Advice Manual 3 which referred decision-makers to an attendance level of 90% as satisfactory. 9 In its review of the material before it, the Tribunal referred to two letters from the College. The first was the letter dated 26 July 2000 referred to at [6] above, in which the applicant's attendance during the period 1 June 1998 and 1 June 2000 was said to be 70%. The Tribunal noted that this letter also included a statement to the effect that the applicant would be permitted to continue his studies on condition that his attendance rate increased. The Tribunal took the view, as it was entitled to as the finder of facts, that this statement indicated there was a concern regarding the applicant's attendance rate. The second letter dated 22 August 2001, stated: "(W)e are not in a position to confirm Mr. Parajuli's attendance statistics prior to 2000. Mr Parajuli commenced studying at this College in 1998, which is before the date that the present owners of this College … acquired the business and assets of this College." 10 This letter had been written by the new owner and manager of the College. The Tribunal went on to consider material provided by the applicant in support of his attendance levels and academic performance. It said: 34. The Tribunal has considered all the evidence relating to the visa applicant's attendance levels and academic performance. It has also taken into account the claims that he was unable to obtain some evidence required by the Tribunal. The evidence provided does not adequately explain the attendance levels which were in question by the new administration of the College. The evidence regarding the academic performance and his failure to complete the course is inconclusive and in part contradictory. In summary, in the Tribunal's mind the attendance levels remain in question and the academic performance was not satisfactory, nor were the reasons for failure to complete the course undertaken." (Emphasis added.) 11 The Tribunal concluded: "35. Taken together, on balance the Tribunal is not satisfied that the visa applicant has met course requirements for the period of his last held student visa, thus he did not substantially comply with condition 8202. On this basis, the Tribunal finds that the visa applicant did not satisfy the requirements of clause 560.213." (Emphasis added.) It affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa. 12 The first issue raised by the applicant concerns the conclusion of the Tribunal expressed in par [35] set out in the preceding paragraph. Plainly enough, clause 560.213 and condition 8202, in combination, pose two questions the Tribunal should answer. The first is whether the applicant has satisfied course requirements. If the answer to this question is that the applicant has not, the Tribunal should ask whether the applicant has substantially complied with the condition that he satisfy course requirements. Something short of complete satisfaction of the condition could meet the criterion prescribed by clause 560.213. Accordingly an applicant can fail to satisfy the condition but nonetheless meet the criterion. 13 In par [35], the Tribunal addressed the first question in the first clause of the opening sentence. It addresses the second question in a second clause of the opening sentence. The two clauses are linked by the word "thus". The use of this word may signify that the Tribunal proceeded on the basis that the negative answer to the first question necessarily provided a negative answer to the second question. If this was the approach the Tribunal took, it would have erred. It would not have considered the second question of whether the applicant had substantially complied with the condition even though there had not been full compliance. 14 However, in my opinion, the conclusion of the Tribunal should not be viewed in this way. The Tribunal described its task in par [25] set out at [7] above. What, in effect it did in the description was to merge the two questions posed, in combination, by condition 8202 and clause 560.213. The condition and clause can operate in the way described by the Tribunal at least where the condition is not satisfied completely. It is true that no question of substantial compliance would arise if course requirements had been satisfied. To that extent the Tribunal appears to be anticipating, at least the possibility, that course requirements had not been met by the applicant and appears to be assuming that it will be necessary to move to the second question of substantial compliance. Nonetheless, what the Tribunal said in par [25] does not involve a misdescription of its task in the sense that it was rolling up the two questions in a way that would operate most beneficially for the applicant. That is, the applicant would get the benefit of the "substantial compliance" standard in the criterion even if he did not completely meet the condition. 15 The High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ and Toohey, McHugh and Gummow JJ) and at 291-292 (Kirby J) that the reasons of a tribunal should not be "scrutinised by over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". The reasons of the Tribunal in this matter should be considered on that basis. I am satisfied the Tribunal addressed the rolled up questions identified in par [25] in its decision between par [25] and par [35]. What the Tribunal said in that latter paragraph should be understood as dealing with the task it earlier set itself in the former paragraph. That is, it was assessing whether the material established whether the applicant had met the course requirements and if he had not, whether he had substantially done so. No error is revealed in the approach of the Tribunal notwithstanding the infelicitous language used. 16 The second issue raised by the applicant concerns the approach of the Tribunal revealed in par [34] and [35]. It was submitted by the applicant's solicitor that the use of expressions such as "on balance" (in par [35]) and "the attendance levels remain in question" (in par [34]) indicate that the Tribunal was approaching the matter, erroneously, on the basis that the applicant had an onus of proving what the circumstances of his attendance were. Counsel for the respondent referred to the judgment of Gray J in Shrestha v the Minister for Immigration and Multicultural Affairs [2001] FCA 1578. In that matter, his Honour was considering a situation not dissimilar to the present. That is, an applicant had his student visa cancelled because he had not complied with condition 8202. An issue was raised about the approach of the Tribunal to the legal and factual issues it had to consider. It is convenient to set out what his Honour said on this question: Counsel for the applicant also argued that the Tribunal applied the wrong standard of proof. In the course of its reasons for decision, the Tribunal three times used the phrase "on balance". Two of those instances are in the passage I have quoted above. Counsel for the applicant argued that this was an indication that the Tribunal was applying a standard of balance of probabilities, which he said was inappropriate in the context of a non-adversarial administrative decision-making process under the Migration Act. He relied on several cases establishing that, for the purposes of considering whether Australia owes protection obligations to a person pursuant to s 36 of the Migration Act, the decision is to be based on the requirement that there be a "real chance" of persecution if the person should be returned to his or her country of origin. See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282 per Brennan CJ, Toohey, McHugh and Gummow JJ, Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574, Minister for Immigration & Multicultural Affairs v Epeabaka [1999] FCA 1 (1999) 84 FCR 411 at [17] - [19] and Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (1999) 93 FCR 220 at [34] - [67]. In Wu Shan Liang at 282, Brennan CJ, Toohey, McHugh and Gummow JJ said: "Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law." Similarly, in Epeabaka at 420, the Full Court said: "In our opinion, the primary judge in the present case did not fall into error in expressing the view that the Tribunal was more likely to arrive at the correct or preferable decision by determining the existence of fact in accordance with the civil standard 'except in respect of those matters where the nature of what must be decided makes this inappropriate'. The statement was intended as a general one, and the circumstances of the case under consideration did not make it necessary to expand upon the important qualification embodied in the statement." It must be remembered that s 116(1) of the Migration Act provides a power to cancel a visa if the Minister is "satisfied" that one or more of the grounds specified in that subsection has been made out. In exercising its power of review, the Tribunal stands in the same position as a delegate of the Minister, with all the powers and discretions conferred on that person. See s 349 of the Migration Act. In the context of a statutory provision requiring that a decision-maker be "satisfied" of a state of facts, it is not unreasonable to apply the standard of balance of probabilities. All that this means is that the decision-maker is satisfied that it is more probable than not that a certain state of affairs existed. I note that, in the context of non-adversarial administrative decision-making, the provision in s 120(4) of the Veterans Entitlements Act 1986 (Cth) requiring a decision-maker to decide according to its "reasonable satisfaction", has been held to require the adoption of the standard of proof described as the balance of probabilities. See Repatriation Commission v Smith (1987) 15 FCR 327 at 335 and Repatriation Commission v Cooke (1998) 90 FCR 307 at 312. The refugee cases may be viewed as an exceptional category of cases, in which the consequences of an incorrect decision may be so drastic as to require the application of a lower standard of satisfaction, the "real chance" test, instead of the balance of probabilities. In my view, the Tribunal in the present case made no error of law in applying the standard of proof on the balance of probabilities, by deciding the matter "on balance". 17 In the present matter, s 65 of the Act governed whether the applicant would be granted the visa he sought. The visa would be granted if, relevantly, the Tribunal was satisfied that prescribed criteria had been satisfied. The observations of Gray J, concerning the cancellation of a visa, are apt to apply to the grant of a visa. The decision maker has to be affirmatively satisfied that criteria have been met. It is no error for the Tribunal to use language such as "on balance" in describing the assessment made of the material before it directed towards establishing the satisfaction which is a precondition for the exercise of the power to grant a visa. 18 A related submission was made that the Tribunal made no finding as to what the course requirements were before moving to the question of whether the applicant had met them. In the circumstances of this case, it was submitted on behalf of the applicant that the Tribunal should have made further inquiries to ascertain what the true position was concerning the applicant's attendance and what the course requirements were. However it is to be recalled that the applicant provided the Tribunal with a letter dated 26 July 2000 from the College which addressed, amongst other things, his 70% level of attendance in the period 1 June 1998 to 1 June 2000. It is also to be recalled that the letter spoke of the applicant increasing his attendance rate. In relation to that statement, the Tribunal made a finding (see [9] above) that this evidenced concern on behalf of the College about his attendance. It is at least implicit in the approach of the Tribunal that, as a matter of fact, a course requirement was that the applicant attend the College at a level or at a frequency acceptable to the College and that, as a matter of fact, the level or frequency of 70% was not acceptable. Having regard to the letter of 26 July 2000, it was open to the Tribunal to approach the matter on this basis. It does not reveal, in my opinion, error of the type contended for by the applicant. It was under no general duty to inquire. 19 The applicant has not demonstrated any legal error on the part of the Tribunal. Accordingly it is unnecessary to consider the submissions made by the parties about the operation of s 474 and related provisions. The appropriate order is that the application be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.