FEDERAL COURT OF AUSTRALIA

Limbu v Minister for Immigration & Multicultural Affairs [2001] FCA 436

RATNAMANI LIMBU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 48 OF 2001

WHITLAM J

SYDNEY

18 APRIL 2001

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) to review a decision of the Migration Review Tribunal (“the Tribunal”) made on 18 December 2000, affirming a decision by a delegate of the respondent (“the Minister”) not to grant the applicant a visa.  The applicant is a citizen of Nepal.  He entered Australia on a student visa on 26 May 1994 and further student visas were subsequently granted to him.  The application before the Tribunal related to an application for a student visa made on 1 December 1999.  That application was refused by the Minister's delegate on 30 March 2000 and the applicant sought a review of that decision by the Tribunal. 

2                     The criteria for the relevant student visa are set out in Part 560 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).  The Tribunal found that the applicant did not meet criteria set out in cl 560.213 or cl 560.224(1).

3                     Clause 560.213 provides:

“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                     Clause 560.224(1) relevantly provides:

“… the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard:

(a)               to the financial ability of the applicant to undertake the course without contravening any condition of the visa relating to work; and

(b)               … to the applicant’s comprehension of English for the purposes of the course; and

(c)                to whether the applicant intends to comply with any conditions subject to which the visa is granted; and

(d)               to any other relevant matter.”

5                     At the time of the visa application the last visa held by the applicant was granted to the applicant on 1 October 1998.  It was subject to conditions 8105 and 8202.  Those conditions as set out in Schedule 8 to the Regulations at the time were as follows:

“8105      The holder must not engage in work in Australia (other than in relation to the holder’s course of study or training) for more than 20 hours a week during any week when the institution at which the holder is studying is in session.

…

8202        The holder must satisfy course requirements.”

6                     The Minister had to be satisfied that the applicant had substantially complied with those conditions. The course of correspondence between the applicant and the Department of Immigration and Multicultural Affairs (“the Department”) is instructive.  Condition 8202 was amended with effect from 1 December 1998, and the new language of that condition was reflected in the letter from the Department sent to the applicant on 1 December 1999.  That was a pro forma letter and requested documents and information relating to attendance at courses undertaken since the applicant’s last student visa was granted, a statement of his financial circumstances and bank statements. 

7                     The applicant replied by a handwritten letter dated 20 January 2000, received at the Department on 22 January 2000.  As requested, he returned the completed statement of financial circumstances and bank statements for six months.  He then made a statement comprising some twelve paragraphs relating to his attendance at the Hurstville Business College in which he said:

“(iv)    I joined H.B.C on Sept 96 and completedDiploma in Information Technology in Sept 98.  Thereafter I continuewith the same college by gettingenrolled for Travel and Tourism.  However, this course was not suitable for me because I had aInformation Technology.

(v)               I discussthis issue with the principle to allow me to change the course or get admission at the college or Universities.

(vi)             My request was declined despite requesting them.

(vii)     As I was not happy with the education at Hurstville College, I started to searchedfor other options during that period from Sept 98 to Nov 99.  I was attending my classes accordingly and at the same time I was advise by study and migration centre to study at Austral College for Diploma in Business Management and I have done the same.

(vii)           The college should have varifed [scil. notified] the Immigration as to my absence from college and to immidiate [scil. initiate] visa cancellation process.”

8                     The bank statements enclosed with that letter covered five successive fortnightly periods from 2 July 1999 to 27 August 1999.  The statements show that a credit deposit of $966.42 was made each fortnight.  It seems a reasonable inference from that material that such regular payments were for work done by the applicant.  The applicant’s solicitor did not dispute that that inference was available.  The delegate of the Minister, in his reasons for decision, said:

“Upon perusing the bank statements of the applicant I am also not satisfied that he has complied with Condition 8105.  This requires that the individual not work more than 20 hours per week.  In the above mentioned bank statements the applicant has deposits for pay from B and I Maintenance of $966 on the 2/7/99, 16/7/99, 30/7/99, 13/8/99, and 27/8/99...  He also had cash deposits of $1000 (6/12/99), $1000 (7/12/99) and $550 (24/2/99) … the origins of which are not known.  With consideration of these facts I am not satisfied that the applicant has complied substantially with condition 8105.  Therefore, he does not meet the criteria for the grant of a 560 visa.”

9                     Earlier in that decision the delegate had recorded his conclusion that he was not satisfied that the applicant had complied with condition 8202.  Relevantly therefore, the delegate found that cl 560.213 had not been satisfied.  The delegate also considered cl 560.224, but I can leave that provision aside for the moment. 

10                  On his application for review by the Tribunal the applicant was assisted by a migration agent.  The Tribunal wrote to the migration agent on 29 August 2000 and invited the applicant to provide the following information:

·                    “Evidence of your current financial ability.  Please complete and return the enclosed Statement of Current Financial Ability form.

·                    Payslips, especially for the period between 2 July 1999 to 27 August 1999.

·                    Current course attendance and academic records.”

11                  The migration agent replied on behalf of the applicant on 25 October 2000 including some of the information requested and said:

“We are advised that no pay slips are issued by the company.  A letter signed by Duality [scil. Quality] Control Manager of Challenger Cleaning Pty Ltd, is attached, which would confirm the applicant's working hours.”

Specifically, in respect of the pay slips for the period 2 July 1999 to 27 August 1999 the agent stated that “[t]he applicant says that the pay slips for this period could not be obtained”.  After the Tribunal held a hearing the applicant’s agent again wrote to the Tribunal submitting further information about the financial support available to his client. 

12                  The Tribunal set out its findings and reasons at [19] - [36] of its statement.  It dealt with the question of substantial compliance after referring to Katz J’s observations in Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436.  Later it turned to the requirements of the two conditions and said:

“31.     The delegate at first instance believed that the visa applicant did not substantially comply with his visa conditions.  This was understandable as the visa applicant did not supply him with requested information.  At the same time he was of a belief that the visa applicant had breached the work rights provision in condition 8105.  From evidence provided to it subsequent to the delegate’s decision, the Tribunal is of the view that the visa applicant did breach condition 8105 and the failure to produce weekly pay chits is, in the opinion of the Tribunal, highly irregular, and gives added credence to the finding of the delegate at first instance.

32.              In regards to the breach of condition 8202 the visa applicant seems from his own submission to have failed to substantially comply with that condition.

33.              In a submission presented to the Department, the visa applicant admits that he was absent from the college and indicates that the Department should have proceeded to cancel his visa.  He has presented no evidence to make the Tribunal come to a different conclusion than that he failed course requirements.  Further, the visa applicant has not provided any proper documentation which contradicts the delegate’s findings that he has breached his condition relating to work rights – such as proper payslips.  Nor has the visa applicant submitted any evidence relating to his genuineness as a student.

34.              The delegate made no finding in relation to the visa applicant’s financial ability.  However, from the evidence before the Tribunal it appears that he now has the financial ability to undertake the course without contravening any conditions relating to work.  This, however, is a result of recent remittance sent as a last resort and does nothing to detract from the substantial previous breach of condition 8105 elaborated in the delegate’s decision.

35.              The Tribunal finds that the visa applicant did not ‘comply substantially with the conditions of the visa last held was subject at the time of the visa application’.  He, therefore, fails to satisfy the criterion in clause 560.213 of Schedule 2 and ipso facto clause 560.227 of Schedule 2.

36.              The visa applicant has also failed the criterion in clause 560.224 in that he has not satisfied the Tribunal that he is ‘a genuine applicant for entry and stay as a student’.”

13                  The Tribunal also there considered the question whether the applicant satisfied cl 560.224(1) which the delegate had found was not satisfied.  The Tribunal took a favourable view of some of the matters specified in the paragraphs of subcl (1) but answered the question ultimately posed in the same terms as the delegate, that is, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student.  The Tribunal had regard, as it was bound to do, to the matters specified in pars (a) and (b) and, unlike the delegate, made a positive finding in respect of par (a).  It did so, as is clear from its reasons, on the basis of the information supplied by the applicant regarding his financial support.  However, in relation to par (c), it concluded plainly enough that it was not satisfied that the applicant intended to comply with any condition subject to which a visa was granted, and accordingly it reached the conclusion I have mentioned. 

14                  The ground of review upon which the applicant relies is that specified in s 476(1)(e) of the Act.  The other grounds set out in the application commencing this proceeding have been abandoned.  It is important to bear in mind the limitations imposed by par (e) which relevantly require that the Tribunal’s decision involved an error of law which was either an error involving an incorrect interpretation of the applicable law, or an incorrect application of the law to the facts as found by the Tribunal.  The specification of the “facts as found” is important because whilst it is true that the Tribunal is not a court of law and that pleadings do not confine the issues before it, it is necessary to have regard to the way in which the application was pursued in order to see how the Tribunal dealt with questions posed for determination. 

15                  The applicant submitted that the Tribunal misconstrued cl 560.213 in relation to substantial compliance.  He relies upon a recent decision of Madgwick J in Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 359.  However, that decision was not concerned with the meaning of cl 560.213 but with the construction and validity of the new condition 8202.  The Tribunal’s reference to Baidakova was appropriate.  Clearly, it was important to examine the requirements of conditions 8105 and 8202.  The terms of each provision are set out in the Tribunal's decision, and it can have been in no doubt about the terms of condition 8202 that governed the last visa granted to the applicant.  As I mentioned earlier, the focus on attendance may have been attributable to the specification given to the new condition 8202 by subsequent amendment.  However, read fairly, it seems to me that “course requirements” in the context of Part 560 of the Regulations assume an attendance at courses.  So much is apparent from the provisions of the Part which refer to courses being provided by registered education providers.  Importantly, the conditions which are imposed under Part 560 (including condition 8105) and the focus in cl 560.224 about the conditions of visas relating to work emphasize that only a limited amount of work will be permitted.  The words of condition 8105 and its context suggest that in those weeks during which an institution is “in session” attendance is assumed. 

16                  The applicant’s first point in relation to the requirements of condition 8202 is that the Tribunal misconstrued the applicant’s letter to the Department of 20 January 2000 set out at [7] above.  That seems to me to be certainly a reasonably arguable proposition.  The question is whether that involves any error of law.  Counsel for the Minister fairly conceded that another construction of that letter was available but the construction placed upon it by the Tribunal, which represents a finding of fact, is that the applicant in effect admitted in that letter that he did not attend the business college.  Beyond that, of course, there is the material before both the delegate and the Tribunal which the applicant’s solicitor fairly concedes would lead at least to a conclusion that, in respect of each of the fortnightly periods a person had worked for more than twenty hours. 

17                  However, the applicant says that it is possible to infer that the institution may not have been in session for a ten week period in the middle of the calendar year.  Whether that is a necessary inference or not, it seems to me that it was a finding of fact for the Tribunal to make and involved no error of law.  Accordingly, in my opinion, the Tribunal did not misconstrue or misinterpret either of those conditions nor did it misapply them to the facts as found by it. 

18                  That leaves the question of whether there has been an error of law involved in the Tribunal's decision in relation to cl 560.224(1).  The applicant submits that par (c) is concerned with subjective intention at the time of the Tribunal's decision.  For present purposes I am prepared to accept that.  But the question is whether the Tribunal, in making its finding about the applicant's subjective intention, is precluded from having regard to the findings it has made in relation to the substantial breach of conditions.  That is, breaches of conditions 8202 and 8105 that occurred in respect of the last visa granted to the applicant.  In my opinion the Tribunal could not be precluded from having regard to that material.  As a matter of logic, it may have regard to the applicant’s prior breaches in forming a view of the subjective intention of the applicant.  Certainly the Tribunal is not, as a matter of law, precluded from having regard to these breaches.

19                  Clause 560.224(1)(a) singles out financial ability in relation to the question of whether an applicant would be likely to contravene any condition of the visa relating to work.  Although par (a) singles out the condition of a visa relating to work, the Tribunal may in my opinion, still have regard to such a condition when considering, under par (c), whether an applicant intends to comply with any conditions to which a visa will be subject.  In that respect too, although such an argument was only faintly pressed, I do not think that the Tribunal has erred. 

20                  No error of law has been made out.  The application will be dismissed with costs.

Associate:

Dated:              1 June 2001