Zhang, Hao [2003] MRTA 2324 (16 April 2003)

CATCHWORDS: Review of visa refusal - Subclass 572 - clause 572.212 - complied substantially with conditions of visa last held - condition 8202

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Student (Temporary) (Class TU) visa.

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the delegate). Mr Hao Zhang (the visa applicant) is a national of the People's Republic of China and was born on 17 September 1981. The visa applicant applied for a Student (Temporary) (Class TU) visa on 2 August 2001. The delegate's decision to refuse to grant the visa was made on 20 September 2001.

2. The visa applicant lodged an application for review with the Tribunal on 16 October 2001. The decision is reviewable by the Tribunal and the application for review is valid.

3. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of Departmental policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

5. The legislation, policy and other materials that are immediately relevant to this review are:

Part 572 of Schedule 2 to the Regulations

Procedures Advice Manual 3: Generic Guidelines G - Student visas

Procedures Advice Manual 3: Schedule 2 - Student - Visa 572

Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436

Pradhan v Minister for Immigration and Multicultural Affairs [1999] FCA 1240; (1999) 94 FCR 91

Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498

Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575.

6. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

7. The Department refused the visa application because the visa applicant did not satisfy clause 572.212 of Schedule 2 to the Regulations. The delegate was not satisfied that the visa applicant had complied substantially with condition 8202 of the visa they held or last held.

8. The central issue for this review is whether the visa applicant complied substantially with condition 8202 of the visa they held or last held at the time the visa application was made. The relevant legislative provisions are set out below.

9. The Tribunal has considered the Tribunal and Departmental case files. The Tribunal sent an invitation to the visa applicant to provide written comments on information the Tribunal considered would be the reason or part of the reason for affirming the decision under review. Essentially the information was that which the delegate relied upon in making the decision. The visa applicant failed to provide any comments to the Tribunal.

10. The visa applicant first travelled to Australia on 20 July 1998 holding a Subclass 560 visa. The visa applicant was granted further student visas on 2 December 1998 and 9 April 2001. This visa expired on 22 July 2001. On 15 August 2001 the visa applicant lodged an application for a Subclass 572 and was granted a Bridging C visa.

11. At the time of the visa application, the visa applicant was not the holder of a Subclass 560 visa, however, the last visa held by him was subject to conditions: 8202, 8105 and 8517.

12. The delegate considered that the visa applicant had not complied substantially with condition 8202. There is no evidence that the visa applicant had not complied substantially with the other visa conditions.

13. There have been a number of changes to condition 8202. On 21 December 2000 the Migration Legislation Amendment (Overseas Students) Act 2000 came into effect. This Act contained provisions which had the effect of replacing the version of condition 8202 for all student visas which were in effect on 1 December 2000 or granted between 21 December 2000 and 30 June 2001.

14. The review applicant's visa was granted between 21 December 2000 and 1 30 June 2001. The Tribunal must, therefore, consider whether the applicant has breached the relevant version of condition 8202 contained in Item 4 of Schedule 4 the Migration Legislation Amendment (Overseas Students) Act 2000. Item 4 states -

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.

(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.

15. The visa applicant commenced studying English at Insearch on 17 April 2001 and this course finished on 22 June 2001.

16. An attendance certificate dated 22 June 2001 stating that the visa applicant's attendance was 32% from 17 April 2001 to 22 June 2001 appears on the Departmental file. In a submission to the Department dated 23 July 2001 the visa applicant attributes his poor attendance to suffering chicken pox and dermatitis during this period and provides medical certificates to account for 25 days absences. The medical certificates state that the visa applicant was suffering chicken pox from 23 April 2001 to 18 May 2001 and dermatitis from 18 June 2001 to 22 June 2001.

17. According to the delegate an officer from Insearch advised her that some of the medical certificates were not accepted because they were not provided within a reasonable time period. The delegate stated that the certificates were of poor quality and whilst acknowledging that there was no proof that they were fraudulent noted that the last 2 certificates did not include the wet stamp of the medical centre.

18. The delegate consulted a Doctor Kong from Health Services Australia who indicated that in exceptional cases it was possible for chicken pox to last for up to 4 weeks but that this opinion was probably questionable. The delegate stated that the visa applicant's course commenced on 17 April 2001 and that his first certificate indicated that he was ill from 23 April 2001. Doctor Kong confirmed that the visa applicant would have been highly contagious for up to 5 days prior to the first indication of a rash according to the delegate. This according to the delegate would indicate that the visa applicant would have been contagious during the first few days of his course but on inquiry from Insearch she was informed that they were unaware of any outbreak of chicken pox during this period.

19. The delegate stated that as the visa applicant was in attendance for less than one third of the course he could not attain the satisfactory results required for the completion of the course.

20. At the time the visa application was lodged, Class TU contained a number of subclasses. The visa applicant has made claims with respect to Subclass 572. There is no evidence to suggest that the visa applicant meets key criteria for the other subclasses.

21. The Tribunal is satisfied that the visa applicant was sent an invitation to comment on information under section 359A of the Act. The invitation, dated 3 February 2003 was sent to the last address for service and the last residential address provided by the visa applicant in connection with his application for review. The Tribunal is satisfied that the invitation was properly sent to the visa applicant by one of the methods specified by Section 379A of the Act.

22. Where an applicant is invited to comment on information under section 359A and fails to provide those comments within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the applicant's view on the information (subsection 359C(2)). In these circumstances, the applicant is not entitled to appear before the Tribunal (subsection 360(3) and section 363A). The visa applicant did not provide comments within the prescribed period. The Tribunal will therefore proceed to make a decision on the review without taking further action to obtain the comments from the visa applicant and without inviting the visa applicant to appear before the Tribunal.

23. The Tribunal finds that the visa applicant's attendance at Insearch for the period 17 April 2001 to 22 June 2001 was 32%. The Tribunal notes that the visa applicant has provided a number of medical certificates to the Department which state that he was unable to study during the period 23 April 2001 to 18 May 2001 because of chicken pox. A further medical report states that the visa applicant was unfit for study between 18 June 2001 and 22 June 2001 because of dermatitis.

24. The visa applicant has failed to provide any comments on the adverse information before the Tribunal. The visa applicant has lost his right to attend a hearing and present arguments and evidence in relation to the application for review. The visa applicant has not provided any further evidence or information that he wishes the Tribunal to consider.

25. When lodging his application for review the visa applicant submitted attendance certificates from previous education providers and claimed he had always satisfied condition 8202 in the past. The visa applicant stated that delegate assumed his illness was contracted from Insearch but claimed he could have contracted it from anywhere. The visa applicant stated that he had enrolled in a Diploma of Information course at Technos Language and Commerce College which was due to conclude on 24 January 2003 and submits his confirmation of enrolment.

26. The matters to be taken into account is deciding whether the visa applicant complied substantially with a visa condition were referred to by Justice Katz in Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436. Justice Katz quoted the following passage from the judgement of Justice Sackville in Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258:

...the Tribunal should consider the relevant circumstances of the case. Without being exhaustive, these include:

. 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.

27. The Tribunal finds that the nature of the breach of condition 8202 is significant. The visa applicant attended only 32% of his course of study.

28. The visa applicant has provided a number of medical certificates stating that he was not able to attend school because he had chicken pox. The Tribunal is unable to place weight on the medical certificates without further evidence from the visa applicant. Even if the Tribunal was able to accept the medical certificates as evidence of why the visa applicant did not attend school between the period 23 April 2001 and 18 May 2001 the Tribunal cannot be satisfied on the evidence before it that the visa applicant has complied substantially with condition 8202 of his visa.

29. Further, the Tribunal cannot be satisfied that at the time of this decision the visa applicant has complied with the conditions of his visa as he has failed to provide any further evidence to the Tribunal in relation to his student history.

30. The Tribunal finds on the evidence before it that the visa applicant has not complied substantially with condition 8202 of the visa they held or last held at the time the visa application was made.

31. On the basis of the Tribunal's finding, the Tribunal must affirm the decision under review.

32. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Student (Temporary) (Class TU) visa.