FEDERAL COURT OF AUSTRALIA

Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578

MIGRATION – visa – cancellation – student visa – condition that holder must satisfy course requirements – applicant had poor attendance record and made poor academic progress – whether tribunal obliged to make findings as to applicant’s bona fides and as to whether applicant had flouted condition – whether failure to take into account relevant considerations – whether tribunal erred in applying standard of proof on balance of probabilities – whether tribunal failed to exercise discretion

Migration Act 1958 (Cth) ss 116(1)(b), 368(1), 476, 499

Migration Regulations 1994 (Cth) Sch 8 item 8202

Migration Legislation Amendment Act (No. 1) 1998 (Cth)

Veterans Entitlements Act 1986 (Cth) s 120(4)

Migration Series Instruction no 248

Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 applied

Kim v Witton (1995) 59 FCR 258 considered

Baidakova v Minister for Immigration & Multicultural Affairs (Federal Court of Australia, Katz J, 12 November 1998, unreported) considered

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 referred to

Minister for Immigration & Multicultural Affairs v Epeabaka [1999] FCA 1 (1999) 84 FCR 411 referred to

Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (1999) 93 FCR 220 referred to

Repatriation Commission v Smith (1987) 15 FCR 327 referred to

Repatriation Commission v Cooke (1998) 90 FCR 307 referred to

NAVIN SHRESTHA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 219 of 2001

GRAY J

9 NOVEMBER 2001

MELBOURNE

THE COURT ORDERS THAT:

1.         The application for judicial review be dismissed.

2.         The applicant pay the respondent’s costs of the proceeding.

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 pursuant to s 476 of the Migration Act 1958 (Cth) (“the Migration Act”) for judicial review of a decision of the Migration Review Tribunal, affirming a decision of the delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) to cancel the applicant’s student visa.  The application must be dealt with on the basis of the provisions of s 476 as they stood at the time when the application was filed in the Court, namely 26 March 2001.

2                     The applicant is a citizen of Nepal.  On 29 December 1996, he was granted a visa of the kind then known as a Student (Temporary) (Class TU) subclass 560 visa.  He arrived in Australia in January 1997, having enrolled to study information technology at Holmes College.  After becoming disappointed with the course, he changed to a hospitality course at Holmes College.

3                     A condition of the applicant’s visa was described as condition 8202.  This is a reference to item 8202 in Sch 8 to the Migration Regulations, made under the Migration Act. 
That schedule contains conditions which may be attached to the grant of certain visas.  At the time the visa was granted, condition 8202 provided:

“The holder must satisfy course requirements.”

As from 1 December 1998, condition 8202 was amended, but the cancellation of the applicant’s visa was dealt with on the basis that he was bound by condition 8202 in its earlier form. 

4                     On 23 January 1998, a delegate of the Minister decided to cancel the applicant’s visa on the ground that the applicant had not complied with condition 8202.  The power exercised by the delegate of the Minister is to be found in s 116(1)(b) of the Migration Act, which provides as follows:

“(1)     Subject to subsections (2) and (3), the Minister may cancel a visa if
            he or she is satisfied that:

            …

            (b)        its holder has not complied with a condition of the visa”.

Subsections (2) and (3) are not relevant to the present case.

5                     On 28 January 1998, the applicant applied to the Immigration Review Tribunal (“the IRT”) for review of the decision.  On 14 July 1998, the IRT affirmed the decision to cancel the visa.  The applicant then applied to the Court for judicial review.  On 19 October 1998, by consent, the Court remitted the matter to the IRT for reconsideration according to law.  On 1 June 1999, amendments to the Migration Act, effected by the Migration Legislation Amendment Act (No. 1) 1998 (Cth), came into effect.  The IRT was merged with the Migration Internal Review Office, to form the Migration Review Tribunal  (“the Tribunal”).  The decision of the delegate of the Minister became reviewable by the Tribunal.  The Tribunal held a hearing by videoconference on 1 August 2000.  On 2 March 2001, it
published its decision and its reasons for decision.  The decision was to affirm the decision to cancel the visa.  It is that decision of which the applicant seeks judicial review.

6                     On 1 May 2001, the applicant filed an amended application.  It is convenient to set out in full the grounds specified in that application:

“1.       Pursuant to s.476(1)(e) of the Act the decision involved an error of
law, being an incorrect interpretation of the applicable law, and/or an incorrect application of the applicable law to the facts as found by the Tribunal.

PARTICULARS

            (a)        The Tribunal incorrectly interpreted and/or misapplied this test

enunciated in Baidakova v. Minister for Immigration and
Multicultural Affairs [1998] FCA1436 [sic] in that it failed to consider the bona fides of the Applicant and/or whether he deliberately flouted condition 8202;

            (b)        The Tribunal incorrectly interpreted the applicable law in that
                        it applied a standard of proof of the balance of probabilities;

            (c)        The Tribunal incorrectly interpreted and/or incorrectly
            applied the applicable law in that it failed to exercise the
            discretion set out in s.116(1)(b) of the Act.

2.         Pursuant to s.476(1)(a) of the Act procedures that were required by
the Act and the Regulations to be observed by the Tribunal in connection with the making of the decision were not observed in that the Tribunal failed to comply with s.368(1) of the Act in that it did not:

            (i)         set out its reasons and/or

            (ii)        set out its findings on material questions of fact and/or

            (iii)       refer to the evidence or any other material on which the
            findings of fact were based

PARTICULARS

            (a)        The Tribunal failed to set out its reasons for deciding that the
                        Applicant had failed to satisfy course requirements;

            (b)        The Tribunal failed to set out its reasons for the purported
                        exercise of its discretion to cancel the visa;

            (c)        The Tribunal failed to set out its findings as to material
                        questions of fact, namely

                        (i)         whether the Applicant was acting bona fide;

                        (ii)        whether the Applicant deliberately flouted the

                                    condition;

                        (iii)       the Applicant’s attendance record at Holmes College

                        (iv)       the Applicant’s academic record at Holmes College

            (d)        The Tribunal failed to refer to the evidence or other material
                        upon which its finding that the Applicant had failed to satisfy
                        course requirements was based;

            (e)        The Tribunal failed to refer to the evidence or other material
                        upon which the purported exercise of its discretion was based.

3.         Further and in the alternative, pursuant to s.476(1)(e) of the Act the
decision involved an error of law being an incorrect interpretation of the applicable law and/or an incorrect application of the applicable law to the facts as found by the Tribunal in that it failed to comply with s.476(1)(a) and s.368(1) of the Act.

PARTICULARS

            The Applicant refers to and repeats the particulars contained in
            paragraph 2 above.”

7                     In its reasons for decision, the Tribunal summarised the evidence given by and on behalf of the applicant at the Tribunal’s videoconference hearing.  After the hearing, the Tribunal wrote to Holmes College and received information from it.  It forwarded copies of its letter and of the college’s response to the applicant for comment and received comment from the applicant’s adviser. 

8                     It appears that a major issue on the facts related to the applicant’s attendances at Holmes College.  The college claimed that the applicant’s attendances were poor, being as low as 55 per cent, and his academic results were unsatisfactory.  The evidence of the applicant, and of a friend of his, was that the applicant always attended college except when he was sick.  The applicant seems to have attributed the college’s position on attendances to the fact that it had made a demand, on short notice, that he pay some fees and he had not paid them.  The applicant seems to have alleged that it was his failure to pay fees on time that led to his difficulties with Holmes College. 

9                     The applicant also gave evidence that he had not attended classes at Holmes College since November 1997.  He had not completed any courses or obtained any qualifications in Australia.  He was not enrolled in any course but was taking flying lessons, with a view to obtaining a pilot’s licence.  He had worked part-time as a chef.

10                  The Tribunal dealt with the matter on the basis that s 116(1)(b) of the Migration Act gave a discretion to cancel a visa if the relevant ground was made out.  The Tribunal said:

“24. … Therefore the question for the Tribunal to determine is whether the decision to cancel the visa applicant’s visa was the correct or preferable decision in the circumstances of the case.  That decision must be made by the Tribunal on the facts as it finds them, applying the standard of the balance of probabilities.  As well, the Tribunal notes that in Baidakova v Minister for Immigration and Multicultural Affairs (Federal Court, 12 November 1998 unreported), Katz J. referred to matters to be taken into account when deciding whether an applicant has complied substantially 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 the condition, what if anything had contributed to that failure, including whether the Department had misled the applicant.

25.  The Tribunal finds, on balance, from the evidence and material before it, that the visa applicant had breached condition 8202 of his Subclass 560 Student visa, in that he had not satisfied course requirements.  Accordingly, the question of the appropriateness of the cancellation of that visa arises for consideration.

26.  MSI 248 requires that, when deciding whether to cancel a temporary visa under section 116, a decision-maker must give consideration to:

            The purpose of the visa holder’s travel to and stay in Australia

The visa applicant travelled to and stayed in Australia in order to study.

            The extent of non-compliance with any conditions subject to which the
            visa was granted

The visa applicant had breached condition 8202 by poor attendances in a registered course and poor academic progress, thus not meeting his course requirements.

            The degree of hardship which may be caused to the visa holder and
            any family members

The visa applicant noted in part that he would disappoint his parents if he did not complete his studies here and he would suffer hardship.

            The circumstances in which to [sic] ground for cancellation arose

The visa applicant’s poor attendance record, poor results and failure to complete his course in December 1997 as proposed.  His Student visa was cancelled in January 1998.

            The person’s behaviour in relation to the Department

There is no evidence that the visa applicant has been intentionally untruthful to the Department.

27.  It thus appears to the Tribunal that the decision to cancel the visa applicant’s visa follows as a necessary consequence of his failure to abide by the course requirements, as was a condition of his Student visa.

28.  Considering all of the evidence and material presented in this matter the Tribunal finds on balance that the decision to cancel his visa was the correct decision on the merits of the case as the reasons for cancelling the visa outweigh the reasons for not cancelling it.”

11                  The reference to MSI 248 is a reference to one of the Migration Series Instructions, produced pursuant to s 499 of the Migration Act.  That section provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act about the performance of those functions or the exercise of those powers, and that the person or body must comply with those directions.

12                  Section 368(1) of the Migration Act requires the Tribunal, where it makes a decision on a review, to prepare a written statement setting out its decision, the reasons for its decision and the findings on any material questions of fact, which refers to the evidence or other material on which the findings of fact were based.  The ground for judicial review in s 476(1)(a) is that procedures that were required by the Migration Act or the Migration Regulations to be observed in connection with the making of the decision were not observed.  Since the decision of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1, it has been clear that a failure by the Tribunal to set out findings on material questions of fact is not a failure to follow a procedure required by the Migration Act or the Migration Regulations in connection with the making of a decision.  In consequence of Yusuf, particularly what was said by McHugh, Gummow and Hayne JJ (with whom Gleeson CJ expressed agreement) at [73] - [75], the focus of cases in which it is alleged that tribunals operating under the Migration Act have failed to express findings of fact on crucial issues has shifted from s 476(1)(a) to s 476(1)(e).  Section 476(1)(e) contains the ground:

“that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision”.

The concentration in the present case was therefore on grounds 1 and 3 in the amended application.

13                  Kim v Witton (1995) 59 FCR 258 was a case in which the Court dealt with an application for judicial review of an IRT decision upholding the cancellation of a visa for breach of a condition that the visa holder not work in Australia.  One of the issues was whether it was appropriate for the Tribunal to apply the test of substantial compliance in determining whether there had been a breach of the condition warranting cancellation of the visa.  In the course of determining that substantial compliance was sufficient, Sackville J said at 271:

“In my opinion, in determining whether an applicant has complied substantially with a condition imposing a prohibition, the 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 general, it is a matter for the Tribunal to assess the weight to be accorded to these factors, having regard to the circumstances of the case.”

14                  Baidakova v Minister for Immigration & Multicultural Affairs (Federal Court of Australia, Katz J, 12 November 1998, unreported) was a different case.  It was a case in which the Court was exercising its function of judicial review with respect to a decision to refuse to grant a visa.  At the time of her application for that visa, the visa applicant held a temporary visa subject to a condition that she satisfy the requirements of the course which she had undertaken.  Again, the issue of substantial compliance arose.  Katz J quoted from the judgment of Sackville J in Kim v Witton, including the passage I have set out above.  This explains the reference the Tribunal made in its reasons for decision in the present case to Baidakova.

15                  Counsel for the applicant argued that the Tribunal had failed to apply the “test” laid down in Kim v Witton and Baidakova.  He contended that the Tribunal was obliged to make findings as to the bona fides of the applicant and as to whether the applicant had flouted condition 8202.  Its failure to make such findings, so the argument went, amounted to a failure to take into account relevant considerations. 

16                  It is well established that an obligation on an administrative decision-maker to take into account a consideration only arises if the decision-maker is bound to take into account that consideration.  See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 – 42 per Mason J, as he then was.  Usually this will be when the statute concerned requires that consideration to be taken into account.  The relevance of the statute under which
the decision-maker is exercising power was recognised by McHugh, Gummow and Hayne JJ in Yusuf at [74]:

“It may be … that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker.  What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law.  They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.”

At [75], their Honours said:

“If the tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error.  The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past).  It is not accurate, however, to say that the tribunal is, therefore, under a duty to make all material findings of fact, if, as seems probable, that formulation of the duty is intended to extend the ambit of judicial review beyond accepted and well-established limits.  If it is not intended to have that effect, it is not useful to formulate the duty in that way.  Rather, the relevant inquiry remains whether the tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations.”

17                  The argument advanced by counsel for the applicant in the present case sought to elevate the considerations listed by Sackville J in Kim v Witton to the status of relevant considerations in every case.  I do not think that they bear that character.  They were merely matters that, as a matter of logic, would have been relevant in the circumstances of the case with which his Honour was dealing.  No doubt in many cases, those considerations, or similar ones, will be relevant, as a matter of logic, to a determination whether there has been substantial compliance with a condition in a visa.  This does not mean that, in every case, there is an obligation on the decision-maker to take into account every one of those factors.  The circumstances of the case will determine what the statutory duty of the decision-maker is. Baidakova is an illustration of this proposition.  Although Katz J set out what Sackville J has said, his Honour does not appear to have attempted to state the list of matters in Sackville J’s judgment in the form of a “test”.  Indeed, prior to quoting a passage from the judgment of Sackville J, Katz J said:

“In the course of dismissing the applicant’s application for review of the Tribunal’s decision, Sackville J discussed (at 270-72) the requirement of substantial compliance as it applied in the context of the case before him.”

The emphasis in the quote is mine.  The remark illustrates the view that Katz J took of what Sackville J had said.  Indeed, in Baidakova itself, the issue of substantial compliance turned upon whether the measurement of compliance was quantitative (the percentage of classes attended) or qualitative.  His Honour did not assess the performance of the IRT against the list of matters referred to in Sackville J’s judgment as though those matters constituted a “test”. 

18                  In the circumstances of the present case, it cannot be said that it was necessary for the Tribunal to make a finding as to the applicant’s bona fides or whether the applicant flouted the condition.  The Tribunal was dealing with the matter in March 2001, on the basis of evidence heard on and after 1 August 2000.  That evidence disclosed that the applicant had not attended classes in respect of any course since November 1997.  He had not undertaken any educational activity except for flying lessons, which did not appear to constitute a course.  Whether or not the non-attendance to any course was deliberate, the sheer length of time for which the applicant had been absent from a course was bound to constitute a major factor in the mind of the Tribunal.  In the circumstances, there was no Baidakova “test” that the Tribunal was obliged to apply.

19                  Counsel for the applicant also argued that the Tribunal applied the wrong standard of proof.  In the course of its reasons for decision, the Tribunal three times used the phrase “on balance”.  Two of those instances are in the passage I have quoted above.  Counsel for the applicant argued that this was an indication that the Tribunal was applying a standard of balance of probabilities, which he said was inappropriate in the context of a non-adversarial administrative decision-making process under the Migration Act.  He relied on several cases establishing that, for the purposes of considering whether Australia owes protection obligations to a person pursuant to s 36 of the Migration Act, the decision is to be based on the requirement that there be a “real chance” of persecution if the person should be returned to his or her country of origin.  See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282 per Brennan CJ, Toohey, McHugh and Gummow JJ, Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574, Minister for Immigration & Multicultural Affairs v Epeabaka [1999] FCA 1 (1999) 84 FCR 411 at [17] – [19] and Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (1999) 93 FCR 220 at [34] – [67]. 

20                  In Wu Shan Liang at 282, Brennan CJ, Toohey, McHugh and Gummow JJ said:

“Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial.  Administrative decision-making is of a different nature.  A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law.”

21                  Similarly, in Epeabaka at 420, the Full Court said:

“In our opinion, the primary judge in the present case did not fall into error in expressing the view that the Tribunal was more likely to arrive at the correct or preferable decision by determining the existence of fact in accordance with the civil standard ‘except in respect of those matters where the nature of what must be decided makes this inappropriate’.  The statement was intended as a general one, and the circumstances of the case under consideration did not make it necessary to expand upon the important qualification embodied in the statement.”

22                  It must be remembered that s 116(1) of the Migration Act provides a power to cancel a visa if the Minister is “satisfied” that one or more of the grounds specified in that subsection has been made out.  In exercising its power of review, the Tribunal stands in the same position as a delegate of the Minister, with all the powers and discretions conferred on that person.  See s 349 of the Migration Act.  In the context of a statutory provision requiring that a decision-maker be “satisfied” of a state of facts, it is not unreasonable to apply the standard of balance of probabilities.  All that this means is that the decision-maker is satisfied that it is more probable than not that a certain state of affairs existed.  I note that, in the context of non-adversarial administrative decision-making, the provision in s 120(4) of the Veterans Entitlements Act 1986 (Cth) requiring a decision-maker to decide according to its “reasonable satisfaction”, has been held to require the adoption of the standard of proof described as the balance of probabilities.  See Repatriation Commission v Smith (1987) 15 FCR 327 at 335 and Repatriation Commission v Cooke (1998) 90 FCR 307 at 312.  The refugee cases may be viewed as an exceptional category of cases, in which the consequences of an incorrect decision may be so drastic as to require the application of a lower standard of satisfaction, the “real chance” test, instead of the balance of probabilities.  In my view, the Tribunal in the present case made no error of law in applying the standard of proof on the balance of probabilities, by deciding the matter “on balance”.

23                  The final argument put on behalf of the applicant was that the Tribunal did not engage in a transparent exercise of its discretion.  It relied on breach alone.  Reliance was placed particularly on the passage in par 27 of the Tribunal’s reasons for decision, quoted above.  It was said that the use of the formula in the first sentence of par 28 did not, in reality, amount to an exercise of the discretion.

24                  In dealing with this argument, it is necessary to bear in mind the warning expressed in Wu Shan Liang at 272, where Brennan CJ, Toohey, McHugh and Gummow JJ said:

“the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.

25                  The reasons of the Tribunal in the present case are not expressed well.  This does not mean that they disclose a failure by the Tribunal to exercise its discretion.  The Tribunal plainly recognised that it had a discretion.  In the course of exercising it, it dealt, as it was obliged to deal, with the considerations found in MSI 248.  Its findings in relation to each of those considerations made it clear that the overwhelming factor was a poor attendance record and poor academic progress, which amounted to a failure to meet course requirements.  Viewed in this context, what was said in par 27 of the Tribunal’s reasons amounts not to an abandonment of its obligation to exercise a discretion, but to an expression of its conclusion upon that very exercise.  It is not surprising, in the circumstances of the case, that the applicant’s neglect of his studies over a long period assumed great importance in the Tribunal’s mind.  I am not prepared to hold that the Tribunal failed to exercise its discretion.

26                  It follows from my rejection of the arguments put by counsel for the applicant that the application for judicial review must be dismissed.  The applicant will be ordered to pay the respondent’s costs of the application.

Associate:

Dated:              9 November 2001