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[2004] FMCA 575
respondent. The application was dismissed. The applicant was ordered to pay the Minister's costs and disbursements, set at $3,500.
The Federal Magistrate reviewed the Tribunal's refusal of a further student visa but did not re-decide the visa application. The Tribunal had found that the applicant had not substantially complied with his earlier visa conditions because of concerns about attendance and results at the V.I.C.T., and a lengthy period without health insurance. The Magistrate considered that the Tribunal had material supporting those conclusions and found no jurisdictional error. The application was dismissed and the applicant was ordered to pay $3,500 in costs.
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In Piyathilake v Minister for Immigration [2004] FMCA 575, Lloyd-Jones FM considered an application for judicial review of a Migration Review Tribunal decision affirming the refusal of a further student visa. The application was filed on 18 July 2003. The Tribunal's decision, made on 12 June 2003, had affirmed the delegate's refusal ([1], [6]-[7]).
2 cited instruments linked from this judgment.
The applicant, Posithe Rathna Piyathilake, was a Sri Lankan national who had arrived in Australia in February 1999. He held a student visa subject to conditions 8202 and 8501. As summarised in the judgment, condition 8202 required attendance at at least 80 per cent of scheduled contact hours and satisfactory results, while condition 8501 required adequate health insurance while in Australia ([2]).
The central background was a change in study providers and a dispute about the applicant's study record. He transferred to a Diploma of Information Technology at the Victorian Institute of Computer Technology, or V.I.C.T. He was excluded from that course in May 2001. He said the exclusion resulted from a mistake because he had been granted leave of absence. V.I.C.T. later ceased operating, which he said made it difficult to obtain his attendance and results records ([3], [5], [33]-[38]).
The Tribunal did not accept his account as sufficient to establish compliance. It noted that the authorised leave was for three weeks, while the applicant's own evidence was that he had been absent for about one and a half months. It also noted the lack of evidence that he had been reinstated, remained enrolled in the relevant semester, or achieved certified satisfactory results ([48]-[58]).
There was also a period without health insurance. The applicant's representative conceded a gap from around March 2001 to May 2002. The Tribunal considered its length and circumstances significant and rejected the claim of substantial compliance ([61]-[63]).
The Magistrate dismissed the judicial review application and ordered the applicant to pay the Minister's costs, fixed at $3,500 ([64]-[65] and the orders).
The Court's task was judicial review, not a fresh determination of whether the applicant should receive a visa. The question was whether the Tribunal's decision was affected by jurisdictional error. The judgment explains that s 474 of the Migration Act 1958 contained a privative clause, but that a decision affected by jurisdictional error was not protected merely because of that clause ([10]-[19]).
The Court also set out the limits of arguments based on illogical reasoning. It relied on authorities including NACB and NATC for the proposition that want of logic does not, by itself, amount to an error of law or jurisdictional error ([20]-[32]). In applying that approach, the Magistrate did not substitute his own view of the evidence. He asked whether the Tribunal's reasoning and findings were available on the material before it.
On condition 8202, the Court emphasised that the Tribunal had evidence relevant to its conclusion. The leave letter covered three weeks, but the applicant's evidence described an absence of one and a half months. The applicant had not challenged the fact of exclusion, but explained it as a mistake. The Tribunal rejected that explanation, noting both the difference in duration and the absence of evidence of reinstatement ([48]-[52]).
The Tribunal also considered the lack of confirmation of enrolment and results. The applicant said he had returned to the V.I.C.T. and relied on results he said he had obtained from a notice board. The Tribunal was not satisfied that this established continued enrolment or certified satisfactory results. The Magistrate observed that the Tribunal had given reasons for its assessment and that the V.I.C.T. did not close until after the exclusion, so closure did not resolve the earlier evidentiary gap ([53]-[58]).
The health insurance issue was more direct. The applicant's representative conceded that the applicant lacked cover for a period exceeding twelve months. The Tribunal identified several features supporting its view that the non-compliance was significant, including that the cover had lapsed before the applicant returned to Australia, that V.I.C.T. was still operating after his return, and that the gap continued until 2002 ([61]-[63]). The Magistrate characterised the Tribunal's conclusion as a factual assessment that was logical and open on the material ([63]).
The final finding was concise: no jurisdictional error was established in the Tribunal's procedures or decision ([64]). The judgment's outcome therefore turned on the sufficiency of the material supporting the Tribunal's assessments, not on a new finding by the Court about the applicant's study or insurance history.
The judgment applied the law as it stood in 2004. It did not purport to reformulate the statutory scheme or announce a new test for student visa applications. Instead, it brought together principles from the High Court and Federal Court authorities cited in the reasons.
On privative clauses, the judgment referred to Plaintiff S157/2002 v Commonwealth of Australia and Re Minister for Immigration; Ex parte Applicants S134/2002. It explained that a decision affected by jurisdictional error is not a decision made under the Migration Act for the purposes of the privative clause and may therefore remain reviewable ([11]-[19]). It also described the need to examine the particular statutory requirement allegedly breached, rather than assuming every error is jurisdictional ([13]-[15]).
On illogicality, the reasons recited authorities stating that want of logic alone is not necessarily an error of law. The judgment referred particularly to NACB, and later authorities including NATC and VTAG ([20]-[32]). In this case, the relevance was practical: disagreement with the Tribunal's evaluation of evidence did not establish jurisdictional error where the findings had a basis in the material.
The visa criterion discussed was cl 574.212 of Schedule 2 to the Migration Regulations 1994, which required substantial compliance with conditions attached to the visa held, or last held, by the applicant. The judgment also noted cl 574.226 as requiring that the criterion continue to be satisfied at the time of decision ([44]-[46]). The Court did not replace those provisions with a broader rule. It upheld the Tribunal's assessment on the particular evidence.
The judgment does not state how the law changed after 2004. It also does not provide later statutory amendments or later case treatment. Accordingly, this account describes only the legal framework and authorities recorded in the judgment, not the present state of migration law.
At [44], the Tribunal's reasoning is quoted as identifying the criterion that the applicant “has complied substantially with the conditions” of the previous visa. In plain English, the visa decision-maker had to assess the applicant's compliance with the earlier visa conditions, rather than merely ask whether he wanted to continue studying.
At [48]-[50], the judgment compares the authorised leave of three weeks with the applicant's evidence that he was away for about one and a half months. The Magistrate regarded that difference as significant to whether exclusion from the course was simply an administrative oversight.
At [51]-[58], the reasons address the evidence about enrolment and academic results. The Tribunal had no confirmation that the applicant had been reinstated, and the available results did not establish certified satisfactory performance. The Magistrate accepted that the Tribunal had material from which it could draw its conclusions. That did not mean the Court independently determined exactly what happened at the V.I.C.T.; it meant the alleged evidentiary error did not establish jurisdictional error in this review.
At [62]-[63], the judgment records the Tribunal's assessment that the insurance gap was significant. The applicant's representative accepted the gap, while arguing it should still count as substantial compliance. The Tribunal rejected that position, and the Magistrate found the conclusion was open on the material.
The key outcome statement is at [64]: “On the material before me no jurisdictional error is established in the Tribunal's procedures or decision.” In plain English, the applicant had not shown a reviewable legal flaw that justified setting aside the Tribunal's decision.
The case is most relevant, on its facts, where a student visa decision turns on whether the applicant substantially complied with conditions attached to an earlier student visa. In this case, the relevant conditions concerned attendance and satisfactory results, and maintaining adequate health insurance ([2], [37], [44], [59]).
It is also relevant to judicial review arguments that a tribunal made illogical findings or did not accept an applicant's account. The judgment demonstrates that such arguments must be connected to an error of law or jurisdictional error. A claim that the tribunal's factual conclusion was wrong, without more, did not displace the finding that the conclusion was open on the available evidence ([20]-[32], [54], [58], [63]).
The factual indicators considered here included the length of an absence compared with authorised leave, the lack of evidence of reinstatement or continued enrolment, the absence of certified results, and the duration and circumstances of a health insurance gap ([48]-[58], [61]-[63]). The judgment does not establish that these factors will determine every case. Its reasoning is tied to the evidence before the Tribunal and the particular visa criterion.
For practitioners reviewing an analogous decision, the judgment's structure highlights the distinction between evidentiary disagreement and an alleged jurisdictional defect. The reasons ask whether the Tribunal had material capable of supporting the findings, and whether the alleged error affected the exercise of its power. The judgment records the respondent's argument that two separate grounds supported the Tribunal's decision, but it does not set out a separate, express ruling on that materiality argument ([40]-[45]).
The supplied judgment does not cite any later case that considered or applied Piyathilake. It was delivered on 17 September 2004, and the material provided contains no subsequent judicial history. It is therefore not possible, from this source alone, to say how later courts have treated this decision.
The judgment itself discusses earlier authority. For privative clauses it refers to Plaintiff S157/2002 and Applicants S134/2002 ([11]-[19]). For illogical reasoning, it discusses NACB, NATC and VTAG, among other cases ([20]-[32]). Those are authorities relied on in the reasoning of Lloyd-Jones FM, not later treatment of Piyathilake.
The case's discussion of earlier authorities should not be confused with a claim that Piyathilake became a leading authority. The judgment's own conclusion is fact-specific: the applicant had not established jurisdictional error on the material in this proceeding ([64]). Establishing the decision's later precedential reception would require sources beyond the text supplied here.
The judgment does not decide what evidence would be sufficient in another case to establish attendance, continued enrolment or satisfactory academic results where an education provider has closed. It records the absence of relevant records in this case and the Tribunal's reasons for not accepting the applicant's explanation ([35]-[38], [53]-[58]).
It also does not define a numerical threshold for “substantial compliance” with condition 8501. The Tribunal treated a gap exceeding twelve months as significant in the circumstances it identified, and the Magistrate found that assessment was open on the evidence ([61]-[63]). The reasons do not establish that every insurance gap of that duration, or any particular shorter gap, must receive the same treatment.
Another unresolved point is the boundary between an adverse factual finding and a jurisdictional error in an individual case. The judgment states that illogicality alone is insufficient, but the application of that proposition depends on characterising the alleged error and examining the statutory context ([20]-[32]). The decision does not provide an exhaustive test for every form of defective reasoning.
Finally, the judgment does not address subsequent amendments to the Migration Act, the Regulations or departmental guidance, nor does it identify post-2004 appellate consideration of its reasoning. Those matters cannot be resolved from the judgment text provided.
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MIGRATION - Review of Migration Review Tribunal decision - application for student visa - where the applicant had not complied with conditions of a previous student visa - application dismissed.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 475A, 477, 478, 479
Migration Regulations 1994 (Cth), Sch 2 cll.574.212, 574.226
Procedures Advice Manual 3: Generic Guidelines G - Student visas
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 195 ALR 1
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598
SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 129
R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235
Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426
Gamaethige v Minister for Immigration & Multicultural Affairs [2001] FCA 565; (2001) 109 FCR 424
Wade of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 214
NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52
VTAG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 447
W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69
Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9; (2000) 199 CLR 343
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
(2) The applicant pay the respondent's costs set in the amount of $3,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001
1. This judgment arises from an application filed by the applicant on 18 July 2003 seeking judicial review of the decision of the Migration Review Tribunal ("the Tribunal") made on 12 June 2003 which affirmed the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a Student (Temporary) (Class TU) (subclass 573) visa.
2. The applicant is a male national of Sri Lanka. He arrived in Australia on 16 February 1999 and was granted a Student (Temporary) (Class TU) visa, Subclass 560. On 15 February 2000 he was granted a further subclass 560 student visa valid until 15 March 2002. Attached to this visa were conditions 8202 and 8501. Condition 8202 required, summarily, that student visa holders attend for at least 80% of the contact hours scheduled for their course of study and achieve satisfactory results. Condition 8501 required that the applicant maintain adequate health insurance whilst he was in Australia.
3. The applicant completed a Bachelor of Arts (Sociology) at Colombo University in 1992. In 1999 he enrolled in a masters qualifying course at Monash University. In 2000 he transferred to a Diploma of Information Technology at the Victorian Institute of Computer Technology ("the V.I.C.T."), for a course which commenced on 31 January 2000 and was due for completion on 31 January 2002. In May 2001 the V.I.C.T. notified the applicant that it had excluded him from the course, and the V.I.C.T. ceased teaching in about January 2002. In March 2002 the applicant enrolled in a Masters of Information Systems at Central Queensland University, but the university refused to re-enrol him in semester 2, 2002.
4. On 12 March 2002 the applicant applied for a further Student (Temporary) (Class TU) visa, which was refused by the delegate of the Department of Immigration and Multicultural Affairs (the `Department') on 20 May 2002. The delegate stated that the applicant did not provide his results and attendance records with his application of 12 March 2002. The delegate asserted that the applicant had not complied with conditions 8202 and 8501 of his previous visa because the applicant had not maintained health insurance during the visa period, and that he had "not demonstrated that he is a genuine student" due to his course changes.
5. In regard to condition 8202 the applicant claimed that the V.I.C.T.'s letter of May 2001 was a mistake because the applicant had been given a leave of absence. In regard to condition 8501 the applicant claimed that he maintained health cover for the relevant visa period save for a period of 15 months which commenced in March 2001 when he had to suddenly return to Sri Lanka due to his mother's illness.
6. An application for review of the delegate's decision was lodged by the applicant with the Tribunal on 17 June 2002. The Tribunal affirmed the decision of the delegate of the Department in its decision dated 12 June 2003, finding specifically that the applicant had breached conditions 8202 and 8501 of his previous visa and consequently was not entitled to a further student visa.
7. On 18 July 2003 the applicant filed an application in the Federal Magistrates Court of Australia, being MZ 773 of 2003, pursuant to section 39B of the Judiciary Act 1903 (Cth) and sections 475A, 477, 478 and 479 of the Migration Act 1958 (Cth), for judicial review of the Tribunal's decision. The applicant claimed that the Tribunal had been affected by jurisdictional error, that it failed to take into account all relevant material, that it misunderstood/misinterpreted the criteria to grant the student visa, and that it failed to consider whether the applicant had complied with conditions 8202 and/or 8501.
8. In the applicant's contentions of facts and law, which was filed on 15 December 2003, it is claimed, summarily, that:
a) It was unreasonable for the delegate to place the onus on the applicant to produce records of his attendance and results given the closure of the V.I.C.T.;
b) The applicant did not deliberately flout the requirement to maintain health insurance, and substantially complied with condition 8501; and
c) The Tribunal was biased against the applicant and it considered irrelevant material.
9. The applicant's arguments were rebutted in the respondent's contentions of fact and law, filed on 25 May 2004. In summary, the respondent argued that:
a) The applicant was unable to produce records of his attendance and results at the V.I.C.T. because he was excluded from that course in May 2001, which was a significant breach of condition 8202;
b) The applicant did not comply substantially with condition 8501 because he did not hold health insurance for over a year which was significant;
c) There was no evidence that the applicant had achieved an academic result that was certified by the V.I.C.T. to be at least satisfactory; and
d) The Tribunal considered all the applicant's claims and there was no bias in its decision.
Jurisdiction - the effect of s.474(1) of the Migration Act
10. Subsection 474(1) of the Migration Act 1958 (Cth) ("the Migration Act") provides:
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
11. The effect of s.474 of the Act has been considered by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 ("S157") and Re Minister for Immigration; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 195 ALR 1 ("S134").
12. A decision by the Tribunal that involves a jurisdictional error - either a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act - is not a "decision made under the [Migration] Act" and is thus not a privative clause decision as defined in ss.474(2) and (3) of the Act S157 at [77] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ); S134 at [15] (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ), [61], [72] (Gaudron and Kirby JJ). Such a decision is therefore reviewable notwithstanding s.474.
13. However, not every breach of a restriction, limitation or requirement in the Act will result in jurisdictional error. The effect of s.474 of the Act is to necessitate an examination of the restriction, limitation or requirement in question to ascertain whether, in the light of s.474's restrictions on judicial review, the non-observance of those limitations or requirements results in jurisdictional error. S157 at [77] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ); S134 at [72] (Gaudron & Kirby JJ).
16. Examples of situations where an error will amount to a jurisdictional error in the light of s.474 are where there has been a "manifest defect of jurisdiction" and "manifest fraud": Gleeson CJ in S157 at [12], [13], [18] and see Gleeson CJ's references to "degrees of error" at [12]; see too S157 at [57] and [76] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ); see too the judgment of Callinan J in S157, or where the error involves a limitation or duty, which is "indispensable" or "essential to valid action": see S157 at [20] (Gleeson CJ), [76] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ) and see the references to Minister for Immigration & Multicultural & Indigenous Affairs v Bhardwaj (2002) 76 ALJR 598 in S134 at [38].
17. However, as a general proposition, jurisdictional error for the purposes of s.474 carries the same meaning as under the general law: SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 129.
19. Section 474 will not protect a decision, which, on its face, exceeds jurisdiction: S157 at [57] Gaudron, McHugh, Gummow, Kirby, Hayne JJ); Gleeson CJ at [13] and Callinan J at [160] use the phrase "manifest error of jurisdiction". The protection that s.474 purports to afford will also be inapplicable unless the three Hickman provisos are satisfied: S157 at [64] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ). The three Hickman provisos: R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, are that the decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation and that it is reasonably capable of reference to the power given to the body.
20. When there is an important error in logic adopted by a Tribunal in framing its reasons for a decision, the question that arises is whether this, in itself, constitutes an error of law. An effective summary of the law is found in the decision of NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 ("NACB") in the joint judgments of Tamberlin, Emmett and Weinberg JJ, particularly that of [22]-[30].
21. At [22] their Honours refer to Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23. The Full Court agreed with the primary Judge in that decision in that:
"A failure rationally to consider proved evidence was not to be equated with a simple mistake of facts. However, in the view of the Court on the current state of the authorities that difference did not in itself allow for the elevation of such a failure to a mistake of law.
22. Then the Court referred to the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [356] (Brennan, Toohey, Gaudron JJ agreed) where his Honour said:
"Thus, at common law, according to Australian authorities want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to be drawn as a result of illogical reasoning there is no place for judicial review because no error of law has taken place." (Emphasis original)
23. Then at [24], their Honours pointed out that:
"Epeabaka was followed by this Court in Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 at [437], Gamaethige v Minister for Immigration & Multicultural Affairs [2001] FCA 565; (2001) 109 FCR 424 at [428] and [444] and Wade of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 214 at [27].
"It is well settled that the Full Court of this Court should follow decisions of earlier Full Court on the same question unless the Court is of the view that the earlier reasoning was clearly wrong."
25. Then at [25] there is reference to Gamaethige going on appeal to the High Court but subsequently being dismissed. In that judgment McHugh, Gummow and Callinan JJ held that the decision of the Tribunal was not shown to be illogical, irrational or lacking in a basis in findings or inferences of fact.
"... it is often unhelpful to discuss, in the abstract, the legal consequences of irrationality and illogicality or unreasonableness of some degree. In a context such as the present it is necessary to identify and characterise the suggested errors, related to the legal rubric under which a decision is challenged."
27. In NACB at [29] in the joint judgment, their Honours continue:
"In our view, there is nothing in these remarks which would warrant a departure from the earlier line of the decision of this Court to the effect that illogical reasoning does not in itself constitute an error of law or jurisdictional error. Nor does the want of logic which has been identified in a present case sound a `warning note' of a type referred to in Epeabaka (at [422]) as to whether there was only a purported, and not real, exercise of power by the RRT."
"Accordingly, the conclusion we have reached in the present case is that there is substance in the argument that there was want of logic in one respect of the reasoning of the RRT. However, want of logic does not in itself suffice to constitute error of law, still less error of law which is jurisdictional."
29. This issue was again considered by the Full Federal Court in NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 ("NATC"). At [25] of that decision, Heerey, Sundberg and Crennan JJ at the end of that paragraph say:
"It cannot be said that the Tribunal's findings are not open. Nor can it be said that the Tribunal's lack of satisfaction in respect to the appellant's count constitutes illogical reasoning of the kind discussed in Re Minister for Immigration & Multicultural Affairs: Ex parte Applicant S20/2002; Applicant S106 v Minister for Immigration & Multicultural Affairs [2003] HCA 30; (2003) 198 ALR 59; in any event, want of logic does not in itself suffice to constitute an error of law: NACB v Minister for Immigration & Multicultural & Indigenous Affairs."
30. There is a further reference to a decision earlier this year in VTAG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 447 in which his Honour Weinberg J at [58] states:
"Even if the Tribunal's reasons contained conclusions that were illogical, that would not, of itself, amount to jurisdictional error. In NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 ("NACB"), a Full Court of this Court held that: "Illogical reasoning does not in itself constitute an error of law or jurisdictional error."
"The point was further considered in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002; Applicant S106/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 30; (2003) 198 ALR 59 at [71], where McHugh and Gummow JJ, with whom Callinan J were ultimately agreed, concluded that the decision of the Tribunal under challenge in that case was not shown to be, in a sense propounded by the appellant, illogical, irrational, or lack a basis of finding or inference of fact supported on illogical grounds."
32. His Honour also makes reference to NATC at [25] and W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 at [33].
33. Mr Sabelberg, Solicitor for the applicant, submits that the applicant's exclusion from the Diploma of Information Technology at the V.I.C.T. was a mistake and that he had in fact been granted leave of absence. The applicant alleges that he had returned to the V.I.C.T. from May 2001 following his return from Sri Lanka.
34. A letter from the V.I.C.T. in February 2002 advised the applicant that the Institute would not be re-opening and would assist in placing the applicant at other educational providers.
35. At the Tribunal hearings the onus was placed upon the applicant to produce records from the V.I.C.T. as to his attendance and results. The applicant claims that as the V.I.C.T. ceased to exist in June 2002 and because the Tribunal placed the onus on the applicant to produce those records, he was unable to do so. There was no adverse physical evidence to the contrary obtained by the Tribunal.
36. The Tribunal found there was no evidence of the applicant being re-instated on the record of his attendance and results.
37. In respect of condition 8202, which is brought into effect by Item 4 Schedule 4 of the Migration Legislation Amendment (Overseas Students) Act 2000, all students are required to attend for 80% of the course (scheduled classes and achieve an academic result that is certified by the educational provider to be at least satisfactory for each term or semester). The Tribunal when considering the applicant's case found that the applicant had not complied with condition 8202. It is argued on behalf of the applicant that the onus would be on the educational provider to provide a record or statement that this student has obtained a satisfactory result. Mr Sabelberg submitted this was not possible in this case because the V.I.C.T had ceased to exist.
38. The other submission relates to the applicant's failure to hold overseas students medical cover between 14 March 2001 and 13 May 2002. The applicant's solicitor conceded that the applicant did not have overseas health cover for the period alleged however, it was submitted that the applicant had substantially complied with the terms of his visa. The case of Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436 ("Baidakova") was relied upon in assessing whether the applicant had substantially complied. It is submitted that there is no evidence that he did not comply.
39. The applicant argued that, apart from the time when his educational provider was in trouble and not operating, he had had health insurance cover. It was submitted that it was not a deliberate breach and something that would have been taken care of had the educational provider being operating and providing assistance. It is suggested that if the case of Baidakova is applied, the applicant should have been taken to have substantially complied with the terms of the visa.
40. Mr Fairfield of Counsel for the respondent submitted that the Minister's delegate, if satisfied that the criteria are satisfied, must grant the visa, but if not so satisfied, must not grant the visa. Counsel for the respondent submits that the Tribunal gave two discrete reasons for affirming the decision of the delegate. The applicant had not substantially complied with:
41. It followed that, even if the applicant was able to establish an error in the Tribunal's approach to its consideration of one of those conditions, the result would not be material and would not affect the exercise of the Tribunal's power because it would still have been open to the Tribunal for the other reason to have affirmed the decision of the delegate. Authority for that proposition is found in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] where McHugh, Gummow and Hayne JJ set out the reference in Craig's case and then state:
"What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law." (Emphasis added)
42. Counsel also referred to the decision of Minister for Immigration & Multicultural Affairs v Thiyagarajah [2000] HCA 9; (2000) 199 CLR 343 at [17] in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ where they held:
"It should be noted that the phrase in s.476(1)(e), "the decision involved an error in law", in the present case applied to a decision of the Tribunal under s.415(2)(a) to affirm "the decision of the delegate" ...The error of law which will attract review must be more than one found in a step taken at one stage in a decision making process. The involvement in which s.476(1)(e) speaks postulates an error, which finds a necessary consequence in the ultimate decision to affirm the refusal of the grant of a protected visa. The reasoning of von Doussa J correctly proceeded on that footing."
43. It was submitted, that in this case, if there had been an error in considering any one of the conditions it would not have effected the exercise of the power which was to affirm the decision of the delegate.
44. Turning to the facts as set out in the Court Book, the applicant was granted a visa for the period 15 February 2000 until 15 February 2002 and conditions 8202 and 8501 applied to that visa. The applicant then made a fresh application for a visa on 12 March 2002. One of the criteria that had to be satisfied was sub-clause 574.212. That criteria is referred to in the Tribunal's reasoning at Court Book p80:
"One of the criteria to be satisfied at the time of application for grant of a sub-clause 574 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' (clause 574.212 of Schedule 2 to the Regulations). At the time of the decision, the visa applicant must continue to satisfy the criteria in clause 574.212. (Clause 574.226 of Schedule 2 of the Regulations).
45. The Tribunal therefore addressed the correct statutory question; that is, whether or not this applicant had satisfied that criterion, that is whether or not he had substantially complied with the conditions which had attached to the previous visa.
46. The respondent Counsel contends that the two conditions are set out correctly in the Tribunal's reasons. It should be noted, and the Tribunal refers to this, that the condition was amended between the dates of the two separate applications for the relevant visas. It is however, agreed by the parties that the condition that was applied was the relevant condition.
47. Respondent Counsel draws my attention to the applicant's submission that there was no evidence that the applicant did not comply with condition 8202. The respondent Counsel challenges this contention and points to paragraph 23 of the Tribunal's decision (Court Book p81) and points to the following issues:
a) The applicant was enrolled in the course at the V.I.C.T., which commenced on 31 January 2000 and was, expected to be completed by 31 January 2002;
b) The V.I.C.T. ceased to operate with effect from January 2002;
c) The applicant was excluded from this course in May 2001; and
d) The applicant claims that his exclusion was made in error because the V.I.C.T. overlooked the fact that he had been granted leave of absence.
48. The applicant does not challenge the exclusion, but provides an explanation for the exclusion and the Tribunal recites that explanation at [23] of the decision (Court Book p81):
"The letter granting the visa applicant leave of absence is for three weeks from 14 April to 7 May 2001. The visa applicant's letter of 16 May states that he was absent from University (by which he means the Victorian Institute of Computer Technology) for one and a half months which is corroborated by the Department's movement records."
49. I am taken to Court Book p68 to a letter written by the applicant which states in the penultimate paragraph of the page:
"My only absence from the university for a period of one and a half months was due to an unavoidable family emergency I had to attend overseas for which I obtained leave."
50. It seems clearly that the evidence before the Tribunal was that the applicant had been absent for twice as long as the period of leave which he was granted.
51. Returning to the Tribunal's decision (Court Book p80), the Tribunal finds:
"Given that the visa applicant was absent for twice the length of his authorised leave, the Tribunal does not accept that the exclusion was occasioned by a mere oversight. The Tribunal also notes that there is no evidence of involvement of the applicant being re-instated and that he did not provide evidence of attendance, results and confirmation of enrolment when asked for them by the delegate."
52. My attention is drawn to the fact that the applicant's claim was that he returned in May 2001 but the V.I.C.T. did not close down until January 2002.
"Similarly, the only results made available by the visa applicant to the Tribunal are those which he says he was able to get from the notice board. The absence of a confirmation of enrolment and very little relevant details of results there appears to be no evidence that the visa applicant continued to be enrolled in semester II 2001."
54. It is submitted that the applicant may disagree with that reasoning, but clearly it was reasoning that was open to the Tribunal and there was material before the Tribunal from which it could draw those inferences.
55. The Tribunal then continues at [24] of Court Book p80, the delegate noted that:
"All other students contacted by Paul Faca of ACPNT have now received their results. Paul and I see no reason why the visa applicant should be the only person not to receive his results."
56. At the hearing the applicant said that the delegate was not correct and many students were unable to give results. The Tribunal has some reservations about the claims made by the applicant brought about by his evidence in connection with the Monash University course. In his letter of 16 May 2003, the applicant states that he successfully completed the Masters qualifying program at Monash University and his results are attached. The results were not attached and no evidence has been provided about his results at Monash even though he was specifically asked to provide it by the delegate. His claim is not consistent with his evidence at the hearing.
"While the period of Monash University is outside the currency of the visa most recently held by the visa applicant and therefore is not relevant to the assessment of his compliance with condition 8202 it does have some bearing on the weight the Tribunal is prepared to attach to his claim. On balance the Tribunal considers it more likely that the visa applicant was unable to obtain his results for Semester II, 2001 because the Victorian Institute of Computer Technology had excluded him from the course. The Tribunal finds that the visa applicant had not provided the evidence that he has achieved an academic results that is certified by the educational provider to be at least satisfactory.
58. Although the applicant's Counsel states that the applicant was not able to obtain his results, the Tribunal considered that explanation and rejected it. That is a matter of fact for the Tribunal to decide. The Tribunal has given a number of reasons for that finding whereas the only explanation provided by the applicant for the non provision of material was that the V.I.C.T. had closed. That closure being in January of the following year. The Tribunal notes the absence of the results together with the absence of any confirmation of enrolment.
59. The applicant's visa was also subject to condition 8501 which states that:
"The holder must maintain adequate arrangements for health insurance while the holder is in Australia.
60. The Procedures Advice Manual 3 ("PAM 3") sets out the Department's guidelines in relation to student visas and the requirements to meet those visa conditions.
61. The Tribunal's finding that there is a breach of condition 8501 is set out at [27] in Court Book p82 which states:
"The visa applicant has given evidence which shows that he had health cover up until 14 March 2001 (about a month before he returned home from 13 May 2002 to 30 May 2003). There is a period in which he did not have whole cover for more than a year from 15 March 2001 to 12 May 2002 during which time he enrolled at a new educational provider.
62. The applicant's solicitor, Mr Sabelberg, in his submissions conceded that the applicant had breached condition 8501 between the period between 14 March 2001 and 13 May 2002 and Mr Sabelberg referred me to decision of Baidakova which is authority for the applicant substantially complying with the term of a visa. The failure to comply with condition 8501 was considered to be significant in three ways:
a) That his health cover actually lapsed the month before he returned home and there was no apparent action to remedy the situation.
b) After his return in May 2001 the V.I.C.T. was still operating, he did not change his educational provider until early 2002 and this issue would have been raised as a procedural step in the enrolment process.
c) The breach in excess of twelve months was considered to be significant and viewed to be a deliberate flouting of the visa conditions.
63. The Tribunal did consider the applicant's explanation and rejected the argument that there had been a substantial compliance. This was a question of fact that was clearly logical and was open to that decision on the material before the Tribunal.
64. On the material before me no jurisdictional error is established in the Tribunal's procedures or decision. The application must be dismissed.
65. I am satisfied that an order for costs should be made in the circumstances of this matter. I order that the applicant pay the Minister's costs and disbursements of and incidental to the application.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Piyathilake
Minister for Immigration [2004] FMCA 575
(2003) 195 ALR 24
(2002) 76 ALJR 598
(2003) 195 ALR 1
(2001) 206 CLR 323
(2000) 199 CLR 343
(2003) 198 ALR 59
(2001) 109 FCR 424
(1945) 70 CLR 598
(1990) 170 CLR 321
(2001) 106 FCR 426
The application was dismissed. The applicant was ordered to pay the Minister's costs and disbursements, set at $3,500.