Uddin v Minister for Immigration & Anor [2006] FMCA 1041

(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa must meet the requirements of subclauses (2) and (3).

(2) A holder meets the requirements of this subclause if:

(a) the holder is enrolled in a registered course; or

(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is an exchange student - the holder is enrolled in a full-time course of study or training.

(3) A holder meets the requirements of this subclause if:

(a) 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

(b) 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 the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa - the holder is enrolled in a full-time course of study or training.

The content of the visa application for the 2001 visa was a matter upon which I was addressed by counsel for the applicant. It was not contained in the Court Book filed by the respondents, and is not in terms referred to by the present Tribunal. From this, I was asked to infer that it was not a document which was seen by the present Tribunal. However, no notice to produce or to admit had been served on the legal representative of the respondents, and I am reluctant to draw this inference. Counsel for the applicant submitted that the Tribunal made a jurisdictional error by failing to take into account a legally necessary consideration, by not considering the contents of the 2001 visa application. As I shall explain, I do not consider that such an error was made, even if the Tribunal did not see the visa application form itself.

Counsel for the applicant also made submissions inviting me to make findings as to the contents of the 2001 visa application, and in particular as to its "purpose" as shown by the course or courses of study which were identified by the applicant as his proposed study for the two year period for which the visa was sought. However, he did not tender a copy of the application to allow me to do this. On the evidence which I find was before the Tribunal, I consider that the study purposes of the applicant when applying for the 2001 visa, and for which it was granted, might be deduced from the courses in which the applicant in fact enrolled in during its currency. Counsel for the applicant accepted that these courses were within the permissible types of study under the type of visa which was granted.

Under his 2001 visa, the applicant first enrolled in a further five months course at Lloyds International College, being a "Business Diploma" which he pursued from 29 January 2002 until 28 June 2002 ("the Lloyds course"). His later, 2003, visa application which was before the present Tribunal attached a certificate from that College, establishing that he had met course requirements, i.e. he had successfully completed that course.

The applicant then enrolled in a "Bachelor of Business (Marketing)" course offered in Sydney by the Central Queensland University ("CQU"). His 2003 visa application presented a certificate establishing his enrolment in this course. This showed the course start date as 17 July 2002, and the projected course end date as 31 July 2004. However, the records of his studies for the 2002 Winter term and the 2003 Autumn term at CQU, showed that he was unable to pass any of the four subjects attempted in each of these terms. Notwithstanding this lack of success, the applicant presented the completion of his CQU course in his 2003 visa application, as the "intended courses of study in Australia" upon which he sought a subclass 573 student visa.

It is unclear why the determination of the 2003 visa application took until May 2005. By the time that the delegate made his decision on 4 May 2005, CQU had reported the applicant to DIMIA on 28 April 2004 "citing unsatisfactory academic performance", and on 28 May 2004 it had cancelled his certificate of enrolment. In response to the delegate's enquiry whether "the student made satisfactory progress for each period of their course" during the currency of the 2001 visa, CQU on 24 November 2004 had responded "no" in relation to each semester, and said:

Student was not considered satisfactory. Student was placed on probationary enrolment but did not meet all the conditions.

It would seem that the applicant has continued studies under "processing" and "review" bridging visas since the expiry of his 2001 visa in October 2003. After being excluded by CQU, he enrolled during 2004 and 2005 in another Bachelor of Commerce course offered in Sydney by the University of Ballarat. Here too, his studies were unsuccessful, since he passed only two of eight subjects during 2004, and two of four in 2005.

Before the Tribunal, the applicant was invited by letter dated 9 November 2005 to comment on whether he had substantially complied with the conditions of his 2001 student visa held at the time of the 2003 visa application, in the light of the information from CQU which suggested that he was in breach of condition 8202(3)(b)(ii) in both of the two semesters of his CQU course completed before the date of the 2003 visa application.

The applicant responded by letter received on 19 December 2005:

I may have breached the conditions 8202 of my visa relating to study progress. However, there are a number of reasons which was unavoidable and for why I failed to make a substantial progress in my previous course with the Central Queensland University.

I am a genuine student. I did my 'O Level' in 1996 from British Council, Bangladesh. Later on, I started my Bachelor of Business Administration in the University Of Asia Pacific, Bangladesh. There I completed 21 courses which gave me 65 credits. Then after fulfilling all the requirements of an international student, I arrived in Australia with a valid student visa on 19 June 2001 - enrolling myself into a 07 weeks English language course (Intermediate and Upper Intermediate Level) at Lloyds International College, Sydney. In this course, I had an attendance rate of more than 80%. Having completed this course, I enrolled in the same institution in the course of Diploma in Business-Office Administration. I have passed all the subjects in this course successfully. Then I get myself admitted into Central Queensland University for undertaking a course of Bachelor of Business (Marketing) on July 2002. That was a wrong decision in my academic life. From the beginning, I could not adjust to the University environment as well as the curriculum of that course. I was acquainted with the university level education in Bangladesh and it was quite different in Sydney. Despite of my serious attention, I could not concentrate on my study and subsequently failed in several subjects which you already mentioned in your letter.

Later on I was able to identify my problem and found myself interested in accounting sector. I changed my course into Bachelor of Commerce (Accounting) at the University of Ballarat, Sydney. In the meantime, I applied for the extension of my student visa on 10 November 2003. The case officer advised me to provide further documents regarding my financial support by a letter dated 10 November 2003. I provided the said document but surprisingly and on totally different ground I was refused to grant a student visa. In these circumstances, I became nervous and frustrated about my future career. Therefore, at the beginning of current course I was also struggling from various perspectives. However, I am trying hardly to overcome these problems and highly motivated to complete the present course of Accounting. After completing the course successfully in due time I can build my career as an accountant.

I did not breach any visa conditions during my period of study in Australia. I have already spent a huge amount of money and time in relation to my higher studies in Australia. I lost my father in my early age and my mother is now bearing all my educational expenses. My mother wants me to finish my Bachelor in time. For that reason, I also determine to get the degree on time. Because of my wrong course selection in the early days I have already passed considerable amount of time in Australia, achieving nothing. I have finished a substantive part of my current course. If I have to leave Australia half way through my course, I would face a large socio-economic burden, leading an episode of frustration and alienation - that might damage my future career. Because of this frustration, I opted for enrolling at University of Ballarat with an aim to obtain a bachelor degree in Accounting.

Because the applicant's letter was received one working day after the prescribed time for responding to an invitation under s.359A of the Migration Act, the Tribunal was precluded from inviting the applicant to a hearing (see ss.360(2)(c), 359C(2), and 363A). It therefore proceeded to make a decision on the papers alone. No issue challenging this procedure is raised in this application to the Court.

The delegate, and then the Tribunal, refused the 2003 visa application by concluding that the applicant did not satisfy a "time of application" criterion which was then found in Migration Regulations, Sch.2 item 573.212. This item was omitted from the regulations in relation to visa applications made on or after 1 July 2005 (see Migration Amendment Regulations 2005 (No. 3) SLI 2005 No.133, reg.4(11)(b) and Sch.11 [21]). However, it was accepted by both counsel that the Tribunal correctly found that it applied in its review of the applicant's eligibility. It provided:

573.212 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.

In its statement of reasons, the Tribunal identified the relevant legislation, and also identified relevant authorities concerning the interpretation of the test of "complied substantially with the conditions" to which a previous visa was subject. Specifically, it noted authorities discussed by the Full Court in Minister for Immigration & Multicultural Affairs v Modi [2001] FCA 1656; (2001) 116 FCR 496 ("Modi"). In Modi, it was accepted that it might be relevant when considering substantial compliance with condition 8202, for a Tribunal to consider the nature of the visa holder's relevant conduct broadly, including considering explanations for breaches and the state of mind of the holder.

Reference was made in Modi to a non-exhaustive list of possibly relevant circumstances taken from the judgment of Sackville J in Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258 ("Kim v Witton"), which was cited in a student visa case by Katz J in Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436. Sackville J suggested that a Tribunal "should consider the relevant circumstances of the case. Without being exhaustive, these include:

• the nature of the breach of condition;

• the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;

• whether or not the applicant deliberately flouted the condition; and

• if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.

In Kim v Witton, Sackville J was not addressing compliance with condition 8202 attaching to a student visa, but compliance with a condition imposing restrictions on work on the holder of a tourist (short stay) visa. For myself, I have difficulty seeing how some of the considerations referred to by Sackville J could be given significance when assessing "substantial compliance" in relation to condition 8202 on a student visa. The Full Court in Modi might have had similar reservations, since they agreed at [22] that "it is not right to regard those cases as establishing any "test"", and at [19] they held that the considerations listed by Sackville J "were not to be elevated to the status of relevant considerations in every case".

The present Tribunal extracted the Kim v Witton list of considerations, but also said that Modi required that "the circumstances of the case will determine the statutory duty of the decision-maker, and there is no rigid test". Counsel for the applicant did not submit that this reflected any error of law or misunderstanding of the effect of relevant judicial interpretations.

The Tribunal then identified the relevant evidence going to non-compliance with the relevant condition in 8202 during the currency of the applicant's 2001 visa, being the communications from the CQU. It referred to its correspondence with the applicant, and showed that it was aware of the whole of the history of his studies which had been presented in his letter received on 19 December 2005. It concluded that there had been a breach of condition 8202(3)(b):

22. The Tribunal finds that the evidence from CQU clearly establishes that the visa applicant did not achieve academic results certified by CQU to be at least satisfactory for semester 2, 2002 and semester 1, 2003. Indeed CQU has certified that the visa applicant's results for these semesters were not satisfactory. The Tribunal finds that the visa applicant has breached paragraph 8202(3)(b) and thus condition 8202 of the student visa he held at the time of application. There is no evidence that the visa applicant breached any other condition of his visa.

The applicant has not contended that this conclusion was not open to the Tribunal, but Ground 1 challenges the legal relevance of the Tribunal's finding. The applicant also challenges the Tribunal's identification and weighing of considerations going to whether the applicant "substantially complied" with his 2001 visa.

The Tribunal's entire discussion of this topic was:

23. The Tribunal must therefore consider whether the visa applicant has substantially complied with the conditions of the visa he held at the time of application, notwithstanding the actual breach.

24. The Tribunal finds that the breach is in regard to the visa applicant's academic results in his Bachelor of Business course over a period of 2 semesters. The Tribunal finds, as it advised the visa applicant in its letter dated 9 November 2005, that the visa applicant failed all 4 subjects undertaken in semester 2, 2002, and failed all 4 subjects taken in semester 1, 2003. The Tribunal finds that this is a significant breach in the context of the visa applicant's student visa having been granted for him to undertake studies including the Bachelor of Business course. The Tribunal finds that the visa applicant had undertaken previous studies in Australia, having arrived in Australia as the holder of a student visa in June 2001. The Tribunal considers that the visa applicant would reasonably have been aware of the requirements of condition 8202. The Tribunal has considered the visa applicant's submissions regarding the reasons why he did not do well in the Bachelor of Business course, and the reasons why he wished to continue studies at UB. The Tribunal is not satisfied however that this evidence overcomes the significant breach of condition 8202 over semester 2, 2002 and semester 1, 2003.

25. The Tribunal has considered all the evidence. The Tribunal finds that the visa applicant has not complied substantially with the conditions of the visa he held at the time the visa application was made. The Tribunal finds that the visa applicant fails to meet clause 573.212.

Ground 1(a) of the application for review contends:

1. a) Where a visa is subject to condition 8202, condition 8202 only applies to the course or courses for which the visa was granted. The applicant successfully completed his diploma course between November 2001 and June 2002. Therefore he complied with condition 8202. His academic performance in any additional course he chose to undertake (ie the Bachelor of Business course at CQU) is not relevant.

Counsel for the applicant developed this contention only by reference to the language of condition 8202. No attempt was made to find support for his argument in the complex provisions governing the substantive criteria for student visas in subclass 572 or 573. His written submission was:

26. First, the applicant says that in paragraph (3)(b) of condition 8202 the terms "academic result", "education provider" and "course" relate to the "registered course" referred to in paragraph (2)(a). In anticipation of the respondent disputing this point, there are two reasons this construction of condition 8202 is correct:

a) In paragraph (3)(b) the terms "academic result", "education provider" and "course" are in the singular. If paragraph (3)(b) contemplated more than one education provider or more than one course, the terms would be in the plural.

b) If the term "education provider" in paragraph (3)(b) was meant to include an education provider in respect of any registered course, it would have been easy for paragraph (3)(b) to say so. The fact that it did not say so supports the applicant's construction of condition 8202.

27. If the applicant's construction of condition 8202 is correct:

a) The "registered course" in the present case was the diploma of business course at Lloyd International College.

b) It follows that the Tribunal erred in law by ignoring the applicant's academic performance in the diploma of business course at Lloyd International College, and instead considering the applicant's academic performance in the bachelor of business course at CQU.

I consider that this argument is misconceived. The absence of plural references is readily answered by reference to s.23(b) of the Acts Interpretation Act 1901 (Cth), which requires that "words in the singular number include the plural" unless the contrary intention appears. Such an intention does not, in my opinion, appear in the present context.

Moreover, I consider that the apparent purpose of condition 8202 supports its application to all "registered courses" in which the applicant enrols during the currency of the visa. As counsel for the Minister contended: "to permit the provisions [of condition 8202] to be construed in the manner suggested by the applicant would defeat the purpose of the provisions". It would mean that in a case such as the present, where the Lloyds 2002 course lasted only for five months of a two year visa, the applicant's further studies would not be subject to any of the requirements intended to govern the visa holder's period of study in Australia. From the perspective of the student, this might allow him to escape the attendance and results requirements in item 8202(3). However, if "registered course" in item 8202(2)(a) were confined to only the first course attempted under the visa, it would also render the student in breach of that condition as soon as his or her first course was completed, even if the student enrolled in a further course.

In my opinion, the requirements of condition 8202 should be construed as imposing a condition which continues throughout the period of the whole visa, and requires compliance from time to time with the enrolment, attendance and results requirements of items 8202(2) and (3) in relation to each registered course in which the student enrols during the period of his or her student visa. I therefore reject the contention that it was irrelevant for the present Tribunal to take into account and base its decision upon the applicant's poor academic results at CQU.

This interpretation leads to a consideration of whether the Tribunal erred when weighing the significance of these poor results so as to decide whether he had "complied substantially" with his 2001 visa conditions.

Counsel for the applicant accepted, consistent with Modi, that it was open to the Tribunal to regard compliance with condition 8202 as providing the focus of its consideration. He also accepted that the broad and discretionary features of the test of "complied substantially", required the Court to be cautious before identifying any one consideration as "essential" or "legally necessary" to be taken into account (c.f. Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40). He did, however, contend that the Tribunal was legally bound to review the extent of the applicant's compliance with condition 8202 throughout the whole period of the visa, and to consider the relative significance of the breaches which were found in the light of evidence of the applicant's compliance with the condition.

In particular, he contended that the Tribunal's discussion had given no consideration of the applicant's successful completion of his 5 months 2002 Lloyd's course, and therefore had not taken into account relevant matters when addressing the criterion in Sch.2 item 573.212. His written and oral arguments extended beyond the contentions in relation to this which are found in Grounds 1(b) and (c) of the application. These contended:

1. b) In the alternative, if condition 8202 applies to all courses the applicant undertook in the period of the November 2001 visa, in considering whether the applicant "complied substantially" with condition 8202, the decision-maker must take into account the fact that the applicant successfully completed the course for which the visa was granted. The Tribunal failed to take into account this matter, giving rise to jurisdictional error.

c) The Tribunal found (at [24]) that the applicant's breaches were significant "in the context of the visa applicant's student visa having been granted for him to undertake studies including the Bachelor of Business course". However, the November 2001 student visa was not granted to the applicant in order for him to undertake the Bachelor of Business course at CQU. The Tribunal has made a wrong finding of fact, taken into account an irrelevant and erroneous consideration, and misunderstood the law. On this basis, it has fallen into jurisdictional error.

As part of, or supplementary to, these grounds, counsel argued that the Tribunal had failed to consider the contents of the applicant's 2001 visa application form, failed to consider that the applicant had presented the Lloyds course and not the CQU course as its purpose, failed to consider that the 2001 visa was therefore granted for that purpose, and failed to give substantial weight to the applicant's successful attainment of that purpose.

My essential difficulty with all of these submissions, is that I am not persuaded that the Tribunal failed to appreciate and take into consideration the fact that the applicant successfully completed his 2002 Lloyds course before embarking upon his totally unsuccessful studies at CQU. The facts of his success, and documentary evidence to establish it, were clearly presented to the Tribunal by the applicant. In my opinion, its reasons show that it was aware of them, and considered them as part of the applicant's relevant history and explanation which he had invited it to take into account when considering "substantial compliance". I am not prepared to infer from the absence of express discussion of the significance of this period of "compliance", that it was overlooked by the Tribunal.

I note the authorities cited by counsel for the applicant which might permit such an inference to be drawn. He cited Kalala v Minister for Immigration & Multicultural Affairs [2001] FCA 1594; (2001) 114 FCR 212, applying Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, and he also cited less relevant authorities in relation to the Minister's primary decision-making duties under s.54 of the Migration Act: Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at [52]- [68], and NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 at [205]- [212].

However, in my opinion, the applicant's success in his initial short course at Lloyds was not of such obvious significance, that I would infer from the absence of further discussion that it was overlooked. Clearly, in my opinion, it was open to the Tribunal to give decisive weight to its assessment of the applicant's academic results in the much longer, more significant, and more recent studies at CQU. In the circumstances shown in the evidence before the Tribunal, I would not conclude from its short explanation of why it thought that these results established that the applicant had not complied substantially with condition 8202, that it overlooked any of the matters raised by the applicant, including his earlier success in the Lloyds course.

In my opinion, the fact that the Tribunal did not take a confined view of the relevant circumstances is shown in the sentence which was a particular focus of criticism by counsel for the applicant: "The Tribunal finds that this is a significant breach in the context of the visa applicant's student visa having been granted for him to undertake studies including the Bachelor of Business course". I accept the submission of counsel for the Minister that the word "including" shows that the Tribunal was aware that the visa was also given "for" the applicant to undertake the Lloyds course. I consider that the emphasis given by it to the CQU course does not reveal any identification or weighing of relevant considerations which was not open to the Tribunal as a matter of law.

I also reject the applicant's arguments that the Tribunal failed to take into consideration that the applicant's 2001 visa application presented the Lloyds course as the "purpose" of the visa and not the CQU course, and that the Tribunal erred in law by failing to make reference to this purpose in accordance with the second "relevant circumstance" identified by Sackville J in Kim v Witton (see above at [17]). These arguments face several difficulties.

Initially, there is the difficulty of proof of the factual premise of the arguments, in the absence in evidence before me of the contents of the 2001 visa application. This cannot be solved by counsel complaining that the application was not included in the Court Book, since the applicant has the onus of persuasion in relation to his arguments to this Court. I am not able to find that, in fact, the applicant did not present the CQU course as part of his study program which he presented when seeking the 2001 visa. In the light of his subsequent conduct, I think it more probable that he did. I am therefore not able to find that, even if the Tribunal did not have a copy of the visa application in the evidence before it, it contained anything further which was material to its decision, and certainly not that it contained information legally essential to its consideration which was overlooked by the Tribunal.

Furthermore, as I have found above, the Tribunal shows in the sentence which I extracted above at [35] that it did consider the study "purposes" for which the 2001 visa was granted. In my opinion, it should be understood to have weighed the significance of the applicant's breaches of condition 8202 during his CQU course, against those purposes and their degree of achievement. Certainly, I am not satisfied that it did not do this.

For all the above reasons, I am not persuaded that the Tribunal's decision was affected by any of the jurisdictional errors contended by the applicant. Its decision was therefore a privative clause decision within s.474(1), and I must dismiss the application. A consequential costs order has been agreed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Smith FM