Siddique v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 The relevant chronology of events is as follows: 26 April 1999 The applicant was granted a Student (Temporary) (Class TU) visa ("student visa") in New Delhi, including condition 8202. 8 September 1999 The applicant arrived in Australia. 21 December 2000 New condition 8202 came into effect. 15 March 2001 The student visa expired. The applicant then lodged an application for a further student visa. 17 April 2001 The delegate of the Minister refused the application for a further visa. 3 May 2001 Application for review was lodged by the applicant with the Migration Review Tribunal ("the Tribunal"). 27 November 2001 The Tribunal affirmed the decision under review. 24 December 2001 Application to the Court for review of the Tribunal decision was filed. 4 October 2002 Primary decision ( Siddique v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1226). 2 The Migration Regulations ("the Regulations") prescribe criteria for the student visa as authorised by s 31(3) of the Migration Act 1958 (Cth) ("the Act"). Subject to other subclauses of s 65(1)(a) of the Act, if the decision-maker is satisfied that the criteria for the visa have been satisfied, the decision-maker is required to grant the visa. 3 One of the criteria to be satisfied at the time of the application for a student visa is specified in cl 560.213 of Sch 2 of the Regulations. This was the only criterion upon which the Tribunal based its decision. This criterion provided: "If the application is made in Australia, 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." 4 Section 41(1) of the Act empowers regulations to be made that provide for visas or classes of visas to be subject to specified conditions. Clause 560.611 of Sch 2 to the Regulations has the effect that the applicant must satisfy and have satisfied condition 8202. Condition 8202 as it stood at the time that the student visa was first granted in April 1999 was as follows: "The holder must: (a) be enrolled in a registered course; and (b) attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider …; and (c) if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory; and (d) comply with any requirement of the education provider in relation to payment of fees …" 5 On 21 December 2000 a new condition 8202 came into effect by virtue of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth). Section 3 amended the Act as set out in the applicable items in the Schedules. Schedule 4, Item 4 provided as follows: "(1) This item applies to the following visas (and only those visas): (a) all student visas that are in effect when this item commences; (b) all student visas that are granted after this item commences but before 1 July 2001. (2) Condition 8202 of each visa to which this item applies is taken for all purposes to be as set out in subitem (3), instead of as set out in regulations made for the purposes of section 41 of the Migration Act 1958. (3) The condition is that: (a) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student - the holder is enrolled in a full-time course of study; and (b) in any other case - the holder is enrolled in a registered course; and (c) in the case of a holder whose education provider keeps attendance records - the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled: (i) for a course that runs for less than a semester - for the course; or (ii) for a course that runs for at least a semester - for each term and semester of the course; and (d) in any case - the holder achieves an academic result that is certified by the education provider to be at least satisfactory: (i) for a course that runs for less than a semester - for the course; or (ii) for a course that runs for at least a semester - for each term or semester (whichever is shorter) of the course. (4) In this item: student visa means a visa described in the Migration Regulations 1994 as a Student (Temporary) (Class TU) visa. (5) Other expressions used in subitem (3) that are defined in the Migration Regulations 1994 have the same meaning as in those regulations, as in force from time to time. (6) After this item commences, the Minister may cancel a visa under section 116 of the Migration Act 1958, on the ground that the Minister is satisfied that the condition set out in subitem (3) of this item has not been complied with, even if some or all of the non-compliance happened before this item commenced." 6 Item 3 provided that the amendments made by Items 1 and 2 applied in relation to all student visas whether granted before or after the commencement of Item 3 (that is before or after 21 December 2000). 7 It was conceded by the respondent before the primary judge that the Tribunal had erred in the following respects: (1) It had misdirected itself in law by addressing compliance with the old condition 8202. (2) It did not appear to have properly addressed the issue of whether the education provider maintained evidence of attendance records. (3) It wrongly found that the applicant had not paid the fees and not provided additional evidence in this regard to the Tribunal. 8 It appears that the Tribunal was not cognisant of the above amendment to condition 8202. The Tribunal considered the matter in terms of whether the applicant had substantially complied with the former 8202. The critical findings of fact made by the Tribunal in affirming the decision of the delegate of the respondent not to grant a further student visa are as follows: "With regard to the issue of his academic performance, the Tribunal noted that the visa applicant did indeed apply to defer his studies in second semester 2000 on medical grounds. However, his academic performance prior to this was not satisfactory as he failed in Semester 2 1999 and Semester 1, 2000. … However, on the evidence before it, the Tribunal is not satisfied that there were circumstances reasonably beyond his control which satisfactorily explained his inability to cope with his studies and his breach of visa condition 8202." 9 The primary judgment was careful and comprehensive. We need not summarise all of it. The critical portions of the judgment for present purposes are as follows: "33. The third reason upon why the Tribunal found the applicant had not satisfied the former Condition 8202 concerned his academic performance. The former Condition 8202 required academic performance (if it became relevant) to be "certified by the education provider to be at least satisfactory". A similar expression is contained in the amended Condition 8202 in cl 3(d). It was therefore appropriate for the Tribunal to address that question. The Tribunal based its decision on the applicant's academic performance in Semester 2, 1999 and Semester 1, 2000. It was not satisfied that the applicant's poor academic performance in those semesters was due to circumstances reasonably beyond his control and which satisfactorily explained his inability to cope with his studies. Consequently, the Tribunal was not satisfied the applicant is "a genuine student". … 36. The Tribunal in this matter is not shown to have erred in law in addressing the question of substantial compliance with the condition that the applicant's academic performance be certified by the education provider to be at least satisfactory. There was no such certification. The Tribunal addressed the medical evidence adduced by the applicant to see if it explained satisfactorily his inability to cope with studies. It described the evidence as indicating "intermittent medical problems". Its description of such evidence is a matter for the Tribunal. Its view that the medical reports did not demonstrate "circumstances reasonably beyond" the applicant's control is, in my view, a way of indicating that, despite such evidence, it did not think he had substantially complied with the condition. Despite the applicant's forceful contentions to the contrary, in my view, on this aspect of the case the Tribunal has not been shown to have erred in law or to have gone beyond a legitimate fact finding exercise for the purpose of determining whether the applicant had substantially complied with the conditions. 37. As that reason for the Tribunal's decision is, I think, independent of the other grounds upon which it reached its decision, I accordingly consider that the application must fail. The applicant was required to demonstrate, both at the time of his application and at the time of the decision, that he had substantially complied with the conditions imposed by the amended Condition 8202. The Tribunal concluded that he had not done so in respect of cl (3)(d) of the amended Condition 8202. Although the Tribunal erroneously addressed the former Condition 8202, the question it predicated under subcl (3)(c) is in effect the same as that predicted by cl (3)(d) of the amended Condition 8202. Its conclusion on that issue is not shown to have involved reviewable error. Each of the requirements of the amended Condition 8202, if applicable, is a necessary condition for the grant of the Student visa; they are expressed cumulatively. The failure of the applicant to satisfy that requirement meant that he did not satisfy the criterion expressed in cl 560.213 of Sch 2 to the Regulations. It follows that the Tribunal, in accordance with s 65(1) of the Act, was required to affirm the decision of the delegate not to grant a further Student visa to the applicant." 10 Mansfield J also held that the Tribunal had not failed to accord procedural fairness to the applicant and had not failed to comply with s 359A(1) of the Act. The net result was that such errors of the Tribunal as there were were not such as would lead to any relief. The primary judge went on to find that in the event there would be no relief because of the operation of s 474 of the Act. 11 The appellant has no legal representation. The notice of appeal does not disclose any proper ground of appeal, and the appellant was not able to articulate any proper ground of appeal. His complaints relate to the merits of the Tribunal decision. In those circumstances, it is not for the Court to make a case for the appellant. Suffice to say that no appealable error in the primary decision appears to us. We leave aside the contentious issue of the operation of s 474, as that was a separate basis for denying relief. 12 There is one aspect of the decision we should mention, namely, which form or forms of condition 8202 should have been considered by the Tribunal in the present case. There was a conflict on the authorities as to whether, in relation to an application for a fresh visa after 21 December 2000 and before 1 July 2001 (as in the instant case), non-compliance with the new condition 8202 could be judged if some or all of the events constituting the non-compliance happened before that item commenced (again, as in the instant case). In Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498 Finkelstein J took the view that the new condition only governed from the time it applied and compliance should be judged accordingly. His Honour did not refer to cl 6 of Sch 4 Item 4 to the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) or to the Supplementary Explanatory Memorandum which related to the Bill for that Act. In Gurung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 772 Tamberlin J came to the contrary conclusion without apparently having been referred to Kwan. Mansfield J, having considered the position for himself, concluded that the view of Tamberlin J was preferable. The same view appears to have been acted upon by Merkel J in Alam v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 630. In Zou v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1126 Hill J expressly declined to follow Kwan. Whilst we have not heard full argument on the point, it appears to us that the primary judge was correct in coming to the conclusion that he did on this aspect of the case, particularly in view of the provisions of cl 6 of Sch 4 Item 4 and the contents of the Supplementary Explanatory Memorandum. 13 The appeal is dismissed. The appellant is to pay the costs of the respondent. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Madgwick, Gyles and Conti.