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[2001] FCA 1128
Federal Court of Australia
2001-07-20
Kenny J
Original judgment source is linked above.
EX TEMPORE REASONS FOR JUDGMENT 1 This is an application under s 476(1) of the Migration Act 1958 ("the Act") for review by this Court of a decision of the Migration Review Tribunal ("the Tribunal") made on 11 January 2001, affirming a decision of the respondent, by his delegate, to refuse the grant of a Student (Temporary) (Class TU) visa, subclass 560. The applicant sought an adjournment today, upon the basis that he could not afford representation by counsel. This application was successfully opposed by the respondent. 2 The applicant, Daljit Singh, was born on 9 January 1974. He is a citizen of the Republic of India. Mr Singh entered Australia on 26 July 1998. At the time of his arrival, he held a Student (Temporary) (Class TU) visa, subclass 560 that was valid to 23 July 2000. One of the conditions of the visa was noted on his passport as "8202 meet course requirements". 3 Mr Singh was enrolled at Chalmers Institute from 27 July 1998 until 23 June 2000. A document headed "Change in Student Circumstances" issued by Chalmers Institute on 19 January 2000 indicated that he had failed to meet course requirements and to attend during Semester 2, 1999. On 13 July 2000, Chalmers Institute sent the respondent's Department a "Certificate of Attendance" that stated that Mr Singh's attendance was "Unsatisfactory (Less than 80% Attendance)". Meanwhile, on 11 July 2000, he enrolled at the Australian School of Business Administration, Technology and Research. 4 On 19 July 2000, Mr Singh lodged an application for a new visa that included a letter claiming personal reasons and sickness for "a couple of months" to account for his poor attendance. Subsequently, Chalmers Institute issued a second "Change in Circumstances" document that notified a failure to meet course requirements and non-attendance for Semester 2, 1999 and Semester 1, 2000. (The document also carried the notation "Cancellation of Enrolment" and "Enrolment Complete".) The respondent's delegate refused to grant him a visa. By a decision record dated 1 September 2000, the delegate said: The applicant lodged an application for Student Temporary (Class TU) Visa Subclass 560 Visa on 19/07/2000. After considering the application, insufficient information was given. So as to satisfy me that the applicant met criteria 560.213 of the Regulations, on 19/07/2000, the applicant was invited to submit the following documents within 35 days of the date of the letter: At the time of application lodgement, the client was requested to provide further documentation in the form of Medical & X-ray results, evidence that he had paid for the overseas student health cover, evidence of funds with an accompanying letter of sponsorship/evidence of sponsors funds, and also a statement explaining the reasons for his poor attendance results during the duration of his last visa, together with any documentation that could support such claims. To date no Medical or X-ray results have been received for this application, whilst evidence of payment for the overseas student health cover and evidence of funds has been provided, both satisfactorily. A letter from the client with regard to his poor attendance record stated that he had 'some personal reasons I couldn't attend' and that he 'fell sick for a couple of months'. There was no supporting documentation provided to support these claims. After considering the application I have decided that the applicant has failed to comply substantially with condition 8202 (the holder must satisfy course requirements). To comply with course requirements the applicant is expected to have a satisfactory attendance record of 80%. The applicants' attendance records do not reflect an attendance of this level. I am not satisfied, therefore, that the applicant meets Regulation 560.213. As the applicant does not satisfy Part 560 paragraph 560.213 of the Regulations he does not satisfy all the requirements for the grant of a Visa Subclass 560. I have, therefore, not assessed the applicant against the other requirements for this Visa. 5 On 26 September 2000, an application for review was lodged with the Tribunal. On 19 October 2000, the Tribunal wrote to Chalmers Institute stating: Visa condition 8202 in schedule 8 of the Migration regulations at the time that the previous student visa was granted provides that: "8202 The holder must satisfy course requirements". You will note that the criterion does not specifically relate to attendance or course results but overall performance. There is no reference in the regulations as they read at the time of the grant requiring 80% attendance. Please advise whether or not you now considers that the student has satisfied course requirements for the period from 16 July 1998 to 23 July 2000 for that period during which he was enrolled at Chalmers Institute. You are requested to use the term 'does/does not satisfy course requirements.' On 23 October 2000, a submission and supporting documents were lodged on Mr Singh's behalf with the Tribunal. 6 In a statutory declaration dated 10 October 2000, which accompanied the submission, Mr Singh stated: During the holidays, I met a girl at a New Year's party … . By the beginning of the second Semester in College, we were already in a steady relationship, although we were not living together. During a telephone conversation with my parents in India, who are religious and quite traditional Sikh people, I mentioned my new girlfriend, since our relationship by that stage was quite serious. They asked me if she was an Indian girl … . I told my parents that she was Pakistani. This very much displeased them … . … I was caught between the people dear to me - my girlfriend on the one hand and my parents on the other. I didn't know what to do. I was constantly in a bad mood and even started drinking more often than I should have. Sometimes I simply was in no mood to go to college - I experienced such apathy that I didn't even bother going, despite the fact that I knew that attendance was recorded and I needed to have sufficient attendance to pass. Still, I couldn't do anything about it - I was so distracted with my own problems. Meanwhile, our fights became very frequent. We were fighting over every little thing. My parents were putting even more pressure on me. I was in a horrible emotional state. We broke up with my girlfriend about 3 weeks before my end-of-year exams in College. I became so depressed that I sat at home for nearly a month, drinking heavily and sleeping. I did not even go to the exams. Eventually I recovered over the holidays and went to College in the beginning of the 2nd year … . By that time, my spirits were slightly lifted because a friend … from my town in India arrived to study in Australia. Conditions at college did not, however, improve. Mr Singh continued: The hostile atmosphere in College, as well as the worsening academic progress only worsened my depression and I relapsed to sitting at home for days, drinking and doing nothing. I attended College quite irregularly and this only made my progress worse. This account was corroborated by a friend. 7 On 23 October 2000 the Chalmers Institute informed the Tribunal that "[f]rom 27th July, 1998 until 23rd June, 2000 Daljit has not satisfied course requirements." The Tribunal subsequently wrote to the applicant by letter dated 17 November 2000, drawing his attention to the Chalmers Institute's reply, condition 8202, and policy guidelines about the interpretation of the condition, and requesting information or evidence concerning Mr Singh's claimed depression. 8 On 7 December 2000, the Tribunal received a further submission and statutory declaration from Mr Singh's cousin which also corroborated his explanation for performing badly at Chalmers Institute. A hearing was held by the Tribunal on 22 December 2000.
relevant provisions 9 Section 65 of the Act provides: (1) After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii) … (iv) … is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa. For a subclass 560 visa, the applicant had to meet the criteria prescribed in Schedule 2 Part 560 of the Migration Regulations 1994 (as at July 2000) ("the Regulations"). 10 Under the heading 560.21 "Criteria to be satisfied at time of application", there was included the following: 560.212 (1) If the application is made in Australia, the applicant meets the requirements of subclause (1A) … . (1A)An applicant meets the requirements of this subclause if the applicant is: (a) the holder of a visa of one of the following classes: … (xiii) Student (Temporary) (Class TU) … . 560.213 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. 11 There were also criteria to be met at the time of the decision including: 560.227 If the application is made in Australia, the applicant continues to satisfy the criterion in clause 560.213. 12 One of the conditions to which the original visa was subject was condition 8202, found in Schedule 8 to the Regulations. At the time the original visa was granted on 23 July 1998, condition 8202 provided: 8202 The holder must satisfy course requirements. 13 The subject of the grant of the original visa on 23 July 1998 was the Chalmers Institute course. The applicant was enrolled in this course from the day after his arrival in Australia until 23 June 2000, when his enrolment was cancelled. He did not satisfy course requirements during that time. At the time he made the visa application that is the subject of the decision under review, he had been enrolled at a course at his new institution for eight days. That course was said to be a two-year course.
the tribunal's reasons for decision 14 After noting the relevant legislation and policy, the Tribunal turned to the evidence before it. It noted that it had no attendance records or academic results relating to the applicant's performance in the course at the Chalmers Institute, although it noted the "Change in Student Circumstances" certificate of 23 October 2000. The Tribunal referred to the evidence submitted by the applicant concerning his personal circumstances during his enrolment in that course, and to his explanation for his failure to meet course requirements. It noted that Mr Singh "said at the hearing that he missed many of his classes for a 12 month period after his first Semester in the course" and that he "agreed that he had failed to meet both the attendance and course requirements". The Tribunal considered the academic results produced for his course at the Australian School of Business Administration, Technology and Research and calculated that Mr Singh was achieving an average overall mark of 50.2% per subject up to the end of Semester 4, 2000. 15 Under the heading "Findings", the Tribunal observed that the question before it was "whether the visa applicant substantially satisfied the course requirements at the Chalmers Institute". After considering policy guidelines and the decision of Katz J in Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436, the Tribunal examined the circumstances attending Mr Singh's non-compliance with the original visa condition. It said: There is no dispute that the visa applicant's admitted failure to attend at classes over a large portion of his course and his failure to sit exams means that he failed to meet the requirements of his course. The basis upon which it is claimed that he meets the requirements of the regulations is that his difficult relationship and the consequences that followed from it give him grounds to say that he substantially complied. In this context the Tribunal accepts from the evidence that the visa applicant was deeply depressed (in the colloquial sense of that word) about his personal problems and that this had a serious impact on his studies. It is another matter to say that he failed to appreciate that he was in breach of the condition (Baidakova's case). It is also a case where the Tribunal is being invited to accept that a near-total failure to comply with the course requirements can be elevated to substantial compliance. This is logically unsupportable. Whilst personal problems leading to failure in a few subjects might be equated with substantial compliance, it is another thing entirely to make something out of nothing where the only academic prowess displayed by the visa applicant has been a complete failure to meet course requirements. 16 The Tribunal noted that Mr Singh had passed in the first semesters of his course at his new institution but concluded that this "does not alter the outcome". It found that Mr Singh "failed to substantially comply with condition 8202 of his previous visa". For that reason he failed to meet the requirements of Regulation 560.213 for the grant of the visa to which he applied. Accordingly, the Tribunal affirmed the delegate's decision.
was there any reviewable error? 17 The first and second grounds of the review application made by Mr Singh challenged the jurisdiction and authority to act of the Tribunal. No particulars were provided or submissions advanced that would support either of these grounds. 18 The third ground of the application asserted that there had been non-compliance with the procedures required by the Act or the Regulations to be observed. In particulars, Mr Singh asserted that the Tribunal was in breach of s 368 of the Act in that it failed properly or at all to set out its reasons, its findings on material questions of fact or to refer to the evidence upon which those facts were based in relation to: (a) whether and what hardship would be suffered by the applicant if the visa was refused. (b) the circumstances in which the ground of refusal arose. (c) the seriousness of the previous breach. (d) the applicant's previous behaviour in relation to the Department of Immigration and Multicultural Affairs. It will be recalled that, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, the High Court overruled the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469. The High Court held, contrary to Singh, that s 430(1)(c) of the Act merely obliged the Tribunal to set out its findings on those questions of fact which it considered to be material to the decision that it made, and the reasons it had for reaching that decision: see 180 ALR at [34] per Gaudron J, [68] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) and [217] per Callinan J. Section 368(1) of the Act is in similar terms to s 430 of the Act and, by parity of reasoning, the Tribunal in this case would have been obliged only to set out the findings on the questions of fact that it considered to be material to the decision it made, and the reasons it had for reaching that decision. 19 In any event, the Tribunal's reasons for decision indicate that it considered all pertinent matters that were before it. The Tribunal expressly considered the fact that the applicant had enrolled in a new course at a different institution. It weighed the applicant's attendance and performance at the new institution with his failure to satisfy course requirements at the Chalmers Institute, and concluded that the outcome was not affected. Equally the reasons for the decision of the Tribunal militate against the applicant's contention that the Tribunal disregarded the relevant policy. The applicant's submission that the "circumstances in which the grant of refusal arose" and "the seriousness of the breach" were not adequately addressed is also misplaced. After referring to Baidakova, the Tribunal dealt with the explanation given by the applicant for his failure to comply with the requirements of the Chalmers Institute course. The Tribunal considered those circumstances and the nature of the applicant's failure, concluding that the circumstances did not convert the applicant's actions into substantial compliance. 20 Mr Singh submitted that the Tribunal should have accepted he would suffer hardship by reason of the fact, that if a fresh visa were refused, he would be unable to complete the new course, notwithstanding that he had passed the first Semester of it. This submission invites reconsideration of the merits of the Tribunal's decision. It does not disclose reviewable error, and it would be an error on my part if I were to entertain it. 21 The applicant also claimed that there was reviewable error within the meaning of s 476(1)(e) of the Act. He submitted that: If the Tribunal has failed properly to consider the claim before it, then the Tribunal has fallen into error of law. The Tribunal has written to the applicant's previous course provider Chalmers Institute and specifically requested the Institute to use the term does/does not satisfy course requirements in relation to visa condition 8202. … The applicant contends the Tribunal by such wording virtually delegated its power to the Chalmers Institute in breach of Section 349 [of] the Act. This submission must be rejected. The Chalmers Institute was apparently under the impression that if it notified the Department that the applicant had attended less than 80% of his classes, that would amount to a notification of a breach of condition 8202. The Tribunal was, it would seem, aware of the Institute's reliance on the 80% benchmark, and sought to remedy the misapprehension by asking it to state whether the applicant's overall performance did or did not satisfy course requirements, without regard to the 80% benchmark for attendance. The answer given by the Institute was that the applicant had not satisfied the course requirements. 22 This was, however, not the only evidence before the Tribunal on this issue. The applicant admitted in evidence that he had failed to pass his subjects in the Chalmers Institute course and to attend exams, and that he had missed "many of his classes after his first Semester in the course". The Tribunal's observation that the applicant's failure to satisfy course requirements was "near total" did not need further elaboration and did not depend upon any "delegation" of its power to the Chalmers Institute. 23 The Tribunal was, in any event, entitled to enquire of the educational provider about the applicant's performance. It is plain enough from the Tribunal's reasons that it did not merely adopt as its own the opinion expressed by the Chalmers Institute. It considered the applicant's evidence, and the further question whether the applicant had "substantially" satisfied course requirements. In considering this matter, the Tribunal was required to (and did) consider the applicant's personal circumstances and his commencement of a new course at a new institute where, overall, he was passing. 24 For the above reasons, no reviewable error is shown. I would dismiss the application with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.
Singh
Minister for Immigration & Multicultural Affairs