Weerasinghe v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 There is before the Court an application under s 475A of the Migration Act 1958 (Cth) ("the Act") and s 39B of the Judiciary Act 1903 (Cth) for the review of a decision of the Migration Review Tribunal ("the Tribunal") affirming a refusal by a delegate of the respondent Minister to grant the applicant a Student (Temporary) (Class TU) (Subclass 573) visa. 2 The applicant arrived in Australia on 30 January 1998 on a student visa which was valid until 30 April 1999. After his arrival, he successfully completed the course for a Certificate of Business at Melbourne Institute of Business Technology and then enrolled in a course moving to the degree of Bachelor of Business at Swinburne University of Technology ("Swinburne"). From Semester 1 of 1999 to Semester 2, 2001 he presented for 22 subjects of which he passed 13 and failed 9. In the meantime, he had been granted a further Student (Subclass 560) visa which was issued on 14 April 1999 and which expired on 15 March 2002. On 12 March 2002, he applied for a Student (Subclass 573) visa. That application was refused by a delegate of the Minister for non-compliance with Condition 8202 requiring satisfactory academic progress and with Condition 8501 requiring the maintenance of health insurance cover. 3 In the course of its reasons for affirming the delegate's refusal to grant the applicant a Student (Subclass 573) visa in respect of the period after 15 March 2002, the Tribunal recounted the following findings; '13. On 12 April 2002 the visa applicant applied to the Tribunal for review of this decision (T1, f 2-7). He submitted that, during Semester 1 of 1999, he was suffering stress related headaches during the examination period. During Semester 2 of 1999 and Semester 1 of 2000, his parents were facing marital problems. His father was also involved in United National Party activities in Colombo during the Parliamentary elections, and in October 2000 his family's house was attacked and damaged. These incidents made it difficult to concentrate on his studies. On 4 March 2000 the visa applicant was involved in a car accident, resulting in head and neck injuries, and he was unable to attend university for a period of more than 3 weeks. The visa applicant also stated that his failure to renew his health insurance was an oversight, due to the personal situation he was coping with during this period. 14. The visa applicant provided a medical certificate issued by the TAC (T1, f 17). This indicated that he had suffered facial lacerations requiring sutures, and that these sutures were removed on 11 March 2000. He also provided an invoice from Dandenong Hospital (T1, f 16). In addition, he submitted a statement from the Bank of Melbourne, showing that he held an account with a balance of AU$17,517 (T1, f 21). 15. On 19 September 2002 the Tribunal invited the visa applicant to provide certain information about his health cover and that his academic results are certified by the education provider to be at least satisfactory. An extension of time was requested and granted. 16. A submission was received on 25 November 2002 which included a letter from Medibank Private showing that the visa applicant was not covered from 2 July 2001 to 27 February 2002 and a statement of results from Swinburne University of Technology showing that he passed a total of 13 subjects and failed 9 to the end of the academic year 2001. 17. At the hearing the visa applicant said that his parents' domestic disturbances had upset his ability to study in 1999 and he had received special consideration' from Swinburne University of Technology and was again allowed to undertake only three subjects in the semester. He said that at the end of 2001 academic year he had been embarrassed to continue in the course with his student friends who had done well, so he changed to a new course at Central Queensland University. He has results form Central Queensland University which show that he has passed 7 out of 8 subjects in the 2002 academic year and has 4 subjects remaining which he expects to complete by the first half of 2003. He also said he had been required to attend at the progress committee of his faculty at Swinburne University of Technology to show cause as to why he should not be excluded. A copy of his letter (undated) in reply to the committee was provided. He said he was permitted to continue in the course but did not have a copy of the education provider's letter to that effect. He said it had been sent to a student counsellor who had assisted him at the meeting but that he could obtain a copy from either the University or the counsellor. The Tribunal allowed until 17 January 2003 for the visa applicant to provide the document. 18. On 8 January 2003 the Tribunal received a letter from the visa applicant's representative enclosing a copy of a letter to the visa applicant from Swinburne University of Technology stating that the visa applicant had appeared before a Progress Review Committee of the University and been permitted to continue his course in semester 2, 2000.' 4 As the Tribunal noted in its reasons, an applicant for a Student (Subclass 573) visa has, at all relevant times, been required to comply with cl 573.212 of the Migration Regulations ("the Regulations") which stipulates, as one of the conditions to be satisfied at the time of application for a Subclass 573 visa; '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.' 5 That condition, in turn, made relevant to the applicant Condition 8202 which applied to the applicant's Subclass 560 visa as in force until 15 March 2002 and which attached the following special condition to certain student visas, including that held by the applicant; '4. (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.' 6 The Tribunal held, correctly in my view, that Condition 8202 in that form was intended to apply retrospectively to any student visa in effect as at 21 December 2000; see Gurung v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 772, Habib v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 103, Zou v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1126 and Ziddique v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1226. With that line of authority may be contrasted the single decision of Finkelstein J in Quan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 498, the correctness of which the same Judge later took leave to doubt in Habib (supra). 7 The Tribunal then explained, as follows, its reasons for concluding that his non-compliance with Condition 8202 attached to his previous subclass 560 visa precluded the applicant from the grant of a Student (Subclass 573) visa; '28. In the four semesters up to the end of 2000 the visa applicant passed 8 out of 14 subjects attempted. Swinburne University of Technology excluded him from the degree at the end of semester 1, 2000 but the appeals committee took into account his circumstances of the time and allowed him to continue in the course in semester 2, 2000. The Tribunal accepts this as evidence that the education provider has certified that the visa applicant has achieved an academic result that is satisfactory for the period up to semester 1, 2000. 29. During semesters 1 and 2 of 2001, the visa applicant undertook 8 subjects, passing 5 and failing 3. His confirmation of enrolment indicates that he is enrolled at a different institution for 2002, but it is not clear whether he has transferred of his own choice or was excluded from further study at Swinburne University of Technology. The visa applicant was specifically invited to provide evidence on this point but did not do so. He stated that the letter from the Swinburne University of Technology about his successful appeal against exclusion refers to August 2001, but the copy provided to the Tribunal of the letter in question is dated August 2000 and refers to his appearance before the committee on 15 August 2000. Given the previous action by the education provider and the terms on which the visa applicant was allowed to continue in his course at Swinburne University of Technology the Tribunal cannot be satisfied that the education provider has certified the visa applicant has achieved an academic result which is satisfactory for each or all of semester 2, 2000 semester 1, 2001 and semester 2, 2001. The Tribunal finds the visa applicant has breached condition 8202 (d). 30. In Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436, Katz J referred to matters to be taken into account when deciding whether an applicant has substantially complied 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 condition, what if anything had contributed to that failure, including whether the Department had misled the applicant. 31. According to the guidelines in PAM, the Tribunal is to have regard to circumstances beyond the control of the visa applicant, such as absence or failure due to illness, and whether the visa applicant is able to provide evidence in support of these circumstances such as medical certificates. The visa applicant has provided a medical certificate relating to his car accident in March 2000, and has described his personal circumstances during the period of his study up to the end of semester 1, 2000. He has also made a number of statements about his family circumstances which he claims adversely affected his studies in the same period. The Tribunal notes that the appeals committee of Swinburne University of Technology took all of these circumstances into account when deciding to allow him to continue enrolment after semester 1, 2000 and on this basis the Tribunal also made positive findings about the visa applicant academic progress until that time. However, in the subsequent period, from semester 2, 2000 to semester 2, 2001, the visa applicant has made no claims that his studies were adversely affected by circumstances beyond his control even though the education provider has not certified that he achieved a satisfactory academic result. 32. Taking these matters into consideration, the visa applicant's breach of condition 8202 is significant and, since he changed education providers, he may be assumed to have appreciated the breach. There is no evidence that the Department misled the visa applicant. The Tribunal finds that the visa applicant has not complied substantially with condition 8202 of the visa most recently held by him. The Tribunal finds that the visa applicant does not meet the requirements of clause 573.212 relevant to the time of application. 33. The visa applicant is currently enrolled to undertake a Bachelor of Business (Information Systems) at Central Queensland University in a course which commenced on 11 March 2002 and in which he states he is doing very well. However, the enrolment at Central Queensland University is not within the period of the visa last held by the visa applicant and therefore not relevant to this decision.' 8 In my view, the Tribunal accorded the applicant an excessively benevolent application of Condition 8202(3)(d) when it accepted the decision of the Swinburne Appeals Committee to allow him to continue his course in Semester 2 of 2000 as "evidence that the education provider has certified that the visa applicant has achieved an academic result that is satisfactory for the period up to Semester 1, 2000." The Appeals Committee's action was at least as consistent with its having concluded that the applicant's results for Semester 1 of 2000 had been less than satisfactory but that he should be given another chance. 9 However, even if the Tribunal's benevolent approach were correct, that could not avail the applicant because there is no suggestion that Swinburne had certified his results for Semester 2 of 2000 or either semester of 2001 to be at least satisfactory. As the Tribunal observed at [32] of its reasons quoted at [7] above, by changing, in 2002, from Swinburne to a course at Central Queensland University, the applicant impliedly acknowledged that his results at Swinburne, at least during 2001, had been less than satisfactory. 10 I do not consider that Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 to which the Tribunal referred, has any bearing on satisfaction of Condition 8202(3)(d) in the form in which it applied to the applicant. The criterion which Ms Baidakova had to satisfy was that imposed at that time by cl 560.213 of Sch 2 to the Regulations which was that an applicant who had applied for a visa of the relevant class, at the time of the application "has complied substantially with the conditions to which the visa ….. held by the applicant is ….. subject" (emphasis added). The relevant condition is Ms Baidakova's case was that she satisfy the requirements of the course the undertaking of which had been the basis of the grant to her of a temporary entry permit. One such requirement was that she attend at least 90% of the classes for the course in which she had enrolled. By contrast, there is no scope for operation of the distinction between strict compliance and substantial compliance on Condition 8202(3)(d). Nor can the guidelines in the departmental Procedures Advice Manual ("PAM") to which the Tribunal and the written submissions referred, bear on the application of that condition. As the Tribunal pointed out at [31] of its reasons quoted above, the PAM guidelines require the Tribunal to have regard to circumstances beyond the control of the visa applicant such as absence or failure due to illness and evidence of those circumstances such as medical certificates. However, the presence or absence of a certificate from the education provider is not susceptible to being affected by circumstances beyond the applicant's control in that sense. Either the education provider has certified that the applicant's academic results for the relevant period have been at least satisfactory or it has not. Discretionary factors of the kind to which Katz J referred in Baidakova and which are noted in the PAM may legitimately influence the education provider in deciding whether or not to certify that a result has been at least satisfactory but, in the absence of any certificate at all, those factors can have no bearing on the decision which the Tribunal or this Court is required to make. 11 It was therefore not open to the Tribunal to have regard to the fact, to which reference was made in written submissions filed on behalf of the applicant, that his attendance at Swinburne during the relevant period had been for at least 80% of the contact hours scheduled. As Tamberlin J observed in Gurung (supra); '16. In the absence of any certification by the University one of the cumulative requirements of Condition 8202 had not been satisfied. Accordingly, I do not consider that the reasons of the Tribunal disclose any error of law or principle based on this submission.' 12 The same reasoning compels the result that the present application for review must also fail. Since cl 573.12 of the Regulations requires substantial compliance with all of the conditions cumulatively to which an applicant's last visa was subject, the conclusion just reached makes it strictly unnecessary to consider a second condition with which the applicant was required to comply. That was Condition 8501 of Sch 8 to the Regulations which provides; 'The holder must maintain adequate arrangements for health insurance while the holder is in Australia.' 13 The Tribunal's analysis of the affect of the applicant's non-compliance with that condition was contained in these paragraphs from its reasons for decision; '35. "PAM 3 Generic Guidelines G - Student Visas, Part C" explains the meaning of Adequate' does not have legislated meaning under migration law. However, with the exception of students from Norway and certain students from Sweden, it is policy, that this criterion generally can be satisfied only if the student (or, if applicable, family unit member) produces evidence of the OSHC premium in their favour having been paid or, if an AusAID student or family unit member, evidence that AusAID supports the visa application 36. The delegate noted in the decision that the visa applicant had admitted that he had failed to maintain Student Health Cover from 2 July 2001 to 28 February 2002, and that this was verified by a telephone call to Medibank Private. The Tribunal is also in receipt of a document from Medibank Private which shows that the visa applicant was not covered from 2 July 2001 to 27 February 2002. The visa applicant attributed the failure to maintain Student Health Cover to an "oversight". The Tribunal notes that the visa applicant said he suffered an accident requiring medical attention at a hospital in Australia in 2000 and might therefore be thought to more aware than most of the risks of not being covered. 37. Taking into account the considerations referred to in Baidakova, the Tribunal finds that the visa applicant's breach of condition 8501 is significant and the Tribunal finds that the visa applicant has not complied substantially with condition 8501 of the visa most recently held by him. The Tribunal finds that the visa applicant does not meet the requirements of clause 573.212 relevant to the time of application.' 14 In the written submissions filed on behalf of the applicant it was asserted that his failure to maintain health insurance cover in the period from 3 July 2001 to 27 February 2002 was "purely due to an oversight and not due to the applicant's financial incapacity to meet the cost of the health cover." That may be true, but it does not disclose any error in the Tribunal's finding that the applicant had not complied substantially with Condition 8501. Whether there had been substantial compliance was a question of fact which the Tribunal was entitled to resolve in the light of the relevant PAM guideline. In the absence of some demonstration that the Tribunal misdirected itself as to the meaning of an applicable expression, or committed some other error of law such as applying the PAM guideline as an inflexible rule of universal application, the Court cannot interfere with the Tribunal's resolution of the question of fact which I have just identified. 15 On the basis of this separate and distinct finding of a failure to comply substantially with an applicable condition, the Tribunal's decision must also be upheld. Accordingly, the application will be dismissed with costs.