Shrestha v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application pursuant to s 476 of the Migration Act 1958 (Cth) ("the Migration Act") for judicial review of a decision of the Migration Review Tribunal, affirming a decision of the delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to cancel the applicant's student visa. The application must be dealt with on the basis of the provisions of s 476 as they stood at the time when the application was filed in the Court, namely 26 March 2001. 2 The applicant is a citizen of Nepal. On 29 December 1996, he was granted a visa of the kind then known as a Student (Temporary) (Class TU) subclass 560 visa. He arrived in Australia in January 1997, having enrolled to study information technology at Holmes College. After becoming disappointed with the course, he changed to a hospitality course at Holmes College. 3 A condition of the applicant's visa was described as condition 8202. This is a reference to item 8202 in Sch 8 to the Migration Regulations, made under the Migration Act. That schedule contains conditions which may be attached to the grant of certain visas. At the time the visa was granted, condition 8202 provided: "The holder must satisfy course requirements." As from 1 December 1998, condition 8202 was amended, but the cancellation of the applicant's visa was dealt with on the basis that he was bound by condition 8202 in its earlier form. 4 On 23 January 1998, a delegate of the Minister decided to cancel the applicant's visa on the ground that the applicant had not complied with condition 8202. The power exercised by the delegate of the Minister is to be found in s 116(1)(b) of the Migration Act, which provides as follows: "(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: … (b) its holder has not complied with a condition of the visa". Subsections (2) and (3) are not relevant to the present case. 5 On 28 January 1998, the applicant applied to the Immigration Review Tribunal ("the IRT") for review of the decision. On 14 July 1998, the IRT affirmed the decision to cancel the visa. The applicant then applied to the Court for judicial review. On 19 October 1998, by consent, the Court remitted the matter to the IRT for reconsideration according to law. On 1 June 1999, amendments to the Migration Act, effected by the Migration Legislation Amendment Act (No. 1) 1998 (Cth), came into effect. The IRT was merged with the Migration Internal Review Office, to form the Migration Review Tribunal ("the Tribunal"). The decision of the delegate of the Minister became reviewable by the Tribunal. The Tribunal held a hearing by videoconference on 1 August 2000. On 2 March 2001, it published its decision and its reasons for decision. The decision was to affirm the decision to cancel the visa. It is that decision of which the applicant seeks judicial review. 6 On 1 May 2001, the applicant filed an amended application. It is convenient to set out in full the grounds specified in that application: "1. Pursuant to s.476(1)(e) of the Act the decision involved an error of law, being an incorrect interpretation of the applicable law, and/or an incorrect application of the applicable law to the facts as found by the Tribunal. PARTICULARS (a) The Tribunal incorrectly interpreted and/or misapplied this test enunciated in Baidakova v. Minister for Immigration and Multicultural Affairs [1998] FCA1436 [sic] in that it failed to consider the bona fides of the Applicant and/or whether he deliberately flouted condition 8202; (b) The Tribunal incorrectly interpreted the applicable law in that it applied a standard of proof of the balance of probabilities; (c) The Tribunal incorrectly interpreted and/or incorrectly applied the applicable law in that it failed to exercise the discretion set out in s.116(1)(b) of the Act. 2. Pursuant to s.476(1)(a) of the Act procedures that were required by the Act and the Regulations to be observed by the Tribunal in connection with the making of the decision were not observed in that the Tribunal failed to comply with s.368(1) of the Act in that it did not: (i) set out its reasons and/or (ii) set out its findings on material questions of fact and/or (iii) refer to the evidence or any other material on which the findings of fact were based PARTICULARS (a) The Tribunal failed to set out its reasons for deciding that the Applicant had failed to satisfy course requirements; (b) The Tribunal failed to set out its reasons for the purported exercise of its discretion to cancel the visa; (c) The Tribunal failed to set out its findings as to material questions of fact, namely (i) whether the Applicant was acting bona fide; (ii) whether the Applicant deliberately flouted the condition; (iii) the Applicant's attendance record at Holmes College (iv) the Applicant's academic record at Holmes College (d) The Tribunal failed to refer to the evidence or other material upon which its finding that the Applicant had failed to satisfy course requirements was based; (e) The Tribunal failed to refer to the evidence or other material upon which the purported exercise of its discretion was based. 3. Further and in the alternative, pursuant to s.476(1)(e) of the Act the decision involved an error of law being an incorrect interpretation of the applicable law and/or an incorrect application of the applicable law to the facts as found by the Tribunal in that it failed to comply with s.476(1)(a) and s.368(1) of the Act. PARTICULARS The Applicant refers to and repeats the particulars contained in paragraph 2 above." 7 In its reasons for decision, the Tribunal summarised the evidence given by and on behalf of the applicant at the Tribunal's videoconference hearing. After the hearing, the Tribunal wrote to Holmes College and received information from it. It forwarded copies of its letter and of the college's response to the applicant for comment and received comment from the applicant's adviser. 8 It appears that a major issue on the facts related to the applicant's attendances at Holmes College. The college claimed that the applicant's attendances were poor, being as low as 55 per cent, and his academic results were unsatisfactory. The evidence of the applicant, and of a friend of his, was that the applicant always attended college except when he was sick. The applicant seems to have attributed the college's position on attendances to the fact that it had made a demand, on short notice, that he pay some fees and he had not paid them. The applicant seems to have alleged that it was his failure to pay fees on time that led to his difficulties with Holmes College. 9 The applicant also gave evidence that he had not attended classes at Holmes College since November 1997. He had not completed any courses or obtained any qualifications in Australia. He was not enrolled in any course but was taking flying lessons, with a view to obtaining a pilot's licence. He had worked part-time as a chef. 10 The Tribunal dealt with the matter on the basis that s 116(1)(b) of the Migration Act gave a discretion to cancel a visa if the relevant ground was made out. The Tribunal said: "24. … Therefore the question for the Tribunal to determine is whether the decision to cancel the visa applicant's visa was the correct or preferable decision in the circumstances of the case. That decision must be made by the Tribunal on the facts as it finds them, applying the standard of the balance of probabilities. As well, the Tribunal notes that in Baidakova v Minister for Immigration and Multicultural Affairs (Federal Court, 12 November 1998 unreported), Katz J. referred to matters to be taken into account when deciding whether an applicant has complied substantially with a visa condition. These include the nature and significance of the breach, whether or not the applicant deliberately flouted the condition and, if the applicant failed to appreciate the breach of the condition, what if anything had contributed to that failure, including whether the Department had misled the applicant. 25. The Tribunal finds, on balance, from the evidence and material before it, that the visa applicant had breached condition 8202 of his Subclass 560 Student visa, in that he had not satisfied course requirements. Accordingly, the question of the appropriateness of the cancellation of that visa arises for consideration. 26. MSI 248 requires that, when deciding whether to cancel a temporary visa under section 116, a decision-maker must give consideration to: The purpose of the visa holder's travel to and stay in Australia The visa applicant travelled to and stayed in Australia in order to study. The extent of non-compliance with any conditions subject to which the visa was granted The visa applicant had breached condition 8202 by poor attendances in a registered course and poor academic progress, thus not meeting his course requirements. The degree of hardship which may be caused to the visa holder and any family members The visa applicant noted in part that he would disappoint his parents if he did not complete his studies here and he would suffer hardship. The circumstances in which to [sic] ground for cancellation arose The visa applicant's poor attendance record, poor results and failure to complete his course in December 1997 as proposed. His Student visa was cancelled in January 1998. The person's behaviour in relation to the Department There is no evidence that the visa applicant has been intentionally untruthful to the Department. 27. It thus appears to the Tribunal that the decision to cancel the visa applicant's visa follows as a necessary consequence of his failure to abide by the course requirements, as was a condition of his Student visa. 28. Considering all of the evidence and material presented in this matter the Tribunal finds on balance that the decision to cancel his visa was the correct decision on the merits of the case as the reasons for cancelling the visa outweigh the reasons for not cancelling it." 11 The reference to MSI 248 is a reference to one of the Migration Series Instructions, produced pursuant to s 499 of the Migration Act. That section provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act about the performance of those functions or the exercise of those powers, and that the person or body must comply with those directions. 12 Section 368(1) of the Migration Act requires the Tribunal, where it makes a decision on a review, to prepare a written statement setting out its decision, the reasons for its decision and the findings on any material questions of fact, which refers to the evidence or other material on which the findings of fact were based. The ground for judicial review in s 476(1)(a) is that procedures that were required by the Migration Act or the Migration Regulations to be observed in connection with the making of the decision were not observed. Since the decision of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1, it has been clear that a failure by the Tribunal to set out findings on material questions of fact is not a failure to follow a procedure required by the Migration Act or the Migration Regulations in connection with the making of a decision. In consequence of Yusuf, particularly what was said by McHugh, Gummow and Hayne JJ (with whom Gleeson CJ expressed agreement) at [73] - [75], the focus of cases in which it is alleged that tribunals operating under the Migration Act have failed to express findings of fact on crucial issues has shifted from s 476(1)(a) to s 476(1)(e). Section 476(1)(e) contains the ground: "that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision". The concentration in the present case was therefore on grounds 1 and 3 in the amended application. 13 Kim v Witton (1995) 59 FCR 258 was a case in which the Court dealt with an application for judicial review of an IRT decision upholding the cancellation of a visa for breach of a condition that the visa holder not work in Australia. One of the issues was whether it was appropriate for the Tribunal to apply the test of substantial compliance in determining whether there had been a breach of the condition warranting cancellation of the visa. In the course of determining that substantial compliance was sufficient, Sackville J said at 271: "In my opinion, in determining whether an applicant has complied substantially with a condition imposing a prohibition, the Tribunal should consider the relevant circumstances of the case. Without being exhaustive, these include: · the nature of the breach of condition;