FEDERAL COURT OF AUSTRALIA

Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612

MIGRATION - review of decision affirming refusal to review Subclass 560 (student) visa - previous visa subject to condition that “holder must satisfy course requirements” - relevant circumstances to be considered in assessing whether compliance substantial - extent to which Tribunal required to have regard to guidelines in departmental procedures advice manual - whether Tribunal misconstrued or misapplied policy guidelines - effect of alleged failure by Tribunal to consider matters advanced by applicant as explaining or excusing academic failures - whether Tribunal should have investigated applicant’s attendance record - whether Tribunal failed to take account of change of course and early success in pursuing second course - whether discretionary element in Tribunal’s decision to grant or refuse renewal of visa.

Migration Act 1958 (Cth) ss 31(1), 368, 430, 476(1)

Migration Regulations 1994 (Cth), Sch 2 Subclass 560, Sch 8 Condition 8202

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

Kim v Witton (1995) 59 FCR 258

Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144

Xie v Minister for Immigration and Multicultural Affairs  [2000] FCA 230

Peng v Minister for Immigration and Multicultural Affairs [2000] FCA 167

Minister for Immigration and Multicultural Affairs v Sarrazola [2001] FCA 263

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1

Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 325

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Collector of Customs v Pozzolanic (1993) 43 FCR 280

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189

Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348

Miller v Australian Industrial Relations Commission [2001] FCA 486

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553

Yong v Minister for Immigration and Multicultural Affairs (2000) 62 ALD 687

Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1285

V907 of 2000

ROBERT SOEGIANTO  -v-  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RYAN J

MELBOURNE

15 NOVEMBER 2001

THE COURT ORDERS:

1.         THAT the application be dismissed.

2.         THAT the applicant pay the respondent’s costs of the application (including any reserved costs), such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant, Robert Soegianto, has applied for review of a decision of the Migration Review Tribunal (“Tribunal”), affirming the refusal by a delegate of the respondent Minister to grant the applicant a Student (Temporary) (Class TU) Visa, Subclass 560 described in Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).

2                     The applicant has invoked s 476(1)(e) of the Migration Act 1958 (Cth) (“the Act”) contending that the Tribunal committed an error of law by either incorrectly interpreting the applicable law or incorrectly applying that law to the facts.  More specifically, it has been asserted on behalf of the applicant that: 

(1)        The Tribunal erred in its analysis of whether the applicant “complied substantially” with visa conditions (as outlined in Baidakova v Minister for Immigration and Multicultural Affairs  [1998] FCA 1436 (Katz J));

(2)        The Tribunal erred in its interpretation of the Procedures Advice Manual 3 (“PAM 3”).

(3)        The Tribunal had failed to set out material findings of fact as required by s 368 of the Act and had consequently committed an error reviewable under s 476(1)(a). 

Background

3                     The applicant is an Indonesian citizen who was born in 1977.  The Tribunal made this summary of the background to his application for a student visa;

8.         The visa applicant is aged 23 years and first arrived in Australia on 13 February 1996 as the holder of a subclass 560 visa which was granted on 8 January 1996 and expired on 15 March 1997 (T1, f.18 and 22). He next applied for a subclass 560 visa which was granted on 13 February 1997 and expired on 15 March 2000 (T1, f.23). He departed Australia and returned on five separate occasions during the period of the previous visa held but each absence was of short duration and appears to be at times when the education provider was not in session (T1, ff.19 to 21).

9.         The visa applicant applied for a further subclass 560 visa on 8 March 2000 (D1).  The application was refused on 3 May 2000 on the grounds that the applicant had failed to satisfy the decision-maker that he had complied with the conditions of his previous visa and, in particular, that he did not satisfy condition 8202.  (T1, ff.10-11).  An application for review was lodged with the Tribunal on 24 May 2000 (T1, ff.1-7).

10.       The visa applicant was enrolled in the Bachelor of Business (Management) at Monash University from 1997 to 1999 (D1).

11.       Information received from Monash International dated 3 April 2000 indicates that the visa applicant “has not obtained a satisfactory academic standard” (D1).  This statement is confirmed by the academic record of the visa applicant, which indicates that he passed 3 of 8 subjects in 1997, that he passed 3 of 9 subjects in 1998, that he passed 1 of 6 subjects in 1999 and was excluded from the University (D1).  The visa applicant is currently enrolled in a Bachelor of Business (Marketing) at RMIT University since 28 February 2000. He states that he will be graduating by 30 June 2000 (T1, f 36). However, this is not consistent with information provided by RMIT University to the effect that the proposed course end-date is 30 June 2002 (T1, f 35).

12.       At the hearing [held on 9 October 2000] the visa applicant confirmed his recent visa and academic history.  He said that as a student at RMIT he passed all three subjects for which he was enrolled in first semester 2000, and was confident of passing four subjects in second semester, for which results are not yet available.  He said his letter, in which he states that he will graduate in June 2000, contained a typographical error and that he would actually graduate in 2001.  It was pointed out that RMIT noted the end-date of his course was 2002, and he said he anticipated that he would take extra subjects and finish earlier.

13.       The visa applicant said that there were riots and a number of deaths of ethnic Chinese in Jakarta in 1998, and he and his family were ethnic Chinese. He said that “my family was deeply affected by the Asian crisis” and although he sat the exams he did not do well because of the situation.  The visa applicant said his parents had spent a lot of money and he did not want to go home without a certificate.

4                     Under the heading “Findings” the Tribunal in its decision noted that an applicant for a subclass 560 (student) visa was required to satisfy the criteria set out in Subclass 560 of Schedule 2 to the Regulations. 

5                     At the time of the application, cl 560.213 of Schedule 2 to the Regulations imposed this condition on the grant of a Subclass 560 (student) 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.”

6                     The conditions to which the visa previously held by the applicant was subject included that stipulated as Condition 8202 of Schedule 8 to the Regulations as in force before its amendment on 1 December 1998.  Condition 8202 then provided;

“The holder must satisfy course requirements.”

7                     After accepting that Condition 8202 in that form required “substantial compliance” with course requirements, the Tribunal referred to the judgment of Katz J in Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436, as indicating the matters to be taken into account in determining whether there has been substantial compliance in the requisite sense.  In the same context, the Tribunal referred to par 12.3.5 (this was concededly a mistake as the reference should have been to par 11.14) of PAM 3.  Paragraph 11.14 was in these terms;

“Any student whom a DIMA officer suspects is not complying with this condition should be interviewed and the following considered:

·          the student’s reason(s) for, not abiding by the standards or conditions of the institution.  Failure to pass a course does not in itself mean that the student is not complying with this condition.  However, reasons for failure should be investigated as failure may be an indication that the student’s attendance record has not been satisfactory;

·          whether the circumstances were reasonably beyond the student’s control (eg absence/failure due to illness or non-elective surgery);

·          whether the student is able to provide evidence in support of these circumstances (eg medical certificates);  and

·          whether the student has decided to leave Australia or has enrolled in another institution or for another course and would meet legislative requirements for the grant of a visa 560.

8                     Although the applicant had been excluded from Monash University after 1999, that did not entail, on the application of PAM 3, that he had not satisfied course requirements as cl 11.15 of PAM provided;

“Notwithstanding the loss (or probable loss) of student status, it is open to the officer, having taken all the circumstances into account, to find that the student is complying with the condition.”

9                     The Tribunal then accepted that the civil unrest in Indonesia in 1998 had affected the applicant’s family and consequently his studies, and that the applicant had invested substantial sums of money to study in Australia.  However, the Tribunal went on to note that the civil unrest did not explain Mr Soegianto’s academic problems in 1997 and 1999 (when things had been “more normal”) and that he had not changed his course voluntarily but had in fact been excluded from Monash University.

10                  On the basis of his academic results and consequent involuntary exclusion from Monash, the Tribunal found the applicant’s non-compliance with Condition 8202 to be significant and that the “applicant appreciated the nature of the breach”.  The Tribunal also stated that there was no evidence that the Department of Immigration and Multicultural Affairs (DIMA) had misled the applicant.  The Tribunal concluded:

23.       Taking all relevant circumstances into account the Tribunal finds that, in applying the test in Baidakova, the visa applicant has not complied substantially with the conditions of his visa and so does not satisfy clause 560.213.

11                  The Tribunal’s decision was handed down on 25 October 2000 and the applicant filed the present application for review on 22 November 2000. 

Relevant Law

12                  Section 31(1) of the Act provides for classes of visas, and Reg 2.02 of the Regulations for subclasses of visas.  Subclass 560 of Schedule 2 of the Regulations specifies the criteria for obtaining a Student (Temporary) (Class TU) Visa.  It is common ground that the present applicant was required to satisfy the criterion indicated in cl 560.213 which is reproduced at [5] above. 

13                  The applicant’s previous visa was subject to three conditions, the relevant one being Condition 8202, which states:

“The holder must satisfy course requirements.”

14                  To determine whether a visa applicant has “complied substantially” with visa conditions like 8202 involves consideration of the relevant circumstances.  In Baidakova, Katz J adopted this analysis of substantial compliance by Sackville J in Kim v Witton (1995) 59 FCR 258, at 271:

“Whether the applicant has `complied substantially’ with a condition prohibiting work is a question of fact, to be determined having regard to the particular circumstances of the case.

The Tribunal in the present case summarised and accepted the principles formulated by the Immigration Review Tribunal in Re Sekido. In Re Sekido, the Senior Member considered that it was appropriate, in determining the question of substantial compliance, to take into account the ‘proportionality’ of the breach and the bona fides (or lack of bona fides) of the applicant .....

Neither counsel disagreed with the statement of principle in Re Sekido, and I think it is broadly correct.  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. . . .”

15                  Generally speaking, the Tribunal is not strictly bound to apply ministerial policy like that embodied in PAM 3 when making its decision.  Thus, in Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634, Brennan J, sitting as a Presidential Member of the Administrative Appeals Tribunal, said, at 642-643;

“In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy.  The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”

16                  Moreover, this Court has either stated or implied that it is not an error of law for an administrative tribunal to disregard general statements of policy that have been laid down for the guidance of administrative decision-makers but are not mandated by Parliament;  Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420-21;  Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144 at 148-49.  Nevertheless, it was indicated by Brennan J in Drake (No 2)  (supra) at 645, that the Tribunal should adopt “a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary”.  PAM 3 specifically instructs delegates (though not the Tribunal) to give it “due weight” but “decision makers must not give it the same force as law”;  Xie v Minister for Immigration and Multicultural Affairs  [2000] FCA 230 at [29].

Contentions of the parties

(i)    The applicant

17                  It has been contended on behalf of the applicant that the Tribunal has committed several errors of law which make its decision reviewable under s 476(1)(e) of the Act.  First, it was said, the Tribunal failed to consider the principles mentioned in Baidakova, particularly the bona fides of the applicant and whether he had deliberately flouted the condition. 

18                  Secondly, the applicant argued that the Tribunal had failed to consider that part of par 11.14 of PAM, which required investigation of the reasons for his failure to pass many of his subjects.  The applicant submitted that the Tribunal should have examined his attendance record and should have considered whether its residual discretion permitted it to conclude that Mr Soegianto was still in compliance with the condition.  In addition it was said that the Tribunal had overlooked that part of par 11.14 of PAM 3 which required consideration of whether he had enrolled in another institution.  At the time of the hearing, as the Tribunal found, he was enrolled at RMIT University.  As well, he had passed all three subjects attempted in the first semester of 2000.  Consequently, he claimed, he would have met the legislative requirements referred to at the end of par 11.4 of PAM 3.  Finally, the applicant submitted that the Tribunal had disregarded the overriding discretion reposed in it by par 11.15 of PAM 3.

19                  An additional contention advanced for the first time during the hearing was that the Tribunal may have erred in its interpretation of  “course” in Condition 8202 because it did not give any weight to the applicant’s satisfaction of the course requirements for the degree which he was then pursuing at the RMIT University.

(ii)  The respondent

20                  Several alternative arguments were advanced in response to the applicant’s contention that the Tribunal had erred in its application of Baidakova.  First, it was argued on behalf of the Minister that the Tribunal had interpreted the law correctly.  The matters listed in Baidakova were not exhaustive and would have more or less application according to how each applicant put his or her case.  Further, the weight to be given to any particular factor is a matter for the Tribunal.  In any event, all circumstances relevant to whether the applicant had “deliberately flouted” the condition had been considered by the Tribunal.  Specifically, it had accepted that the 1998 events in Indonesia were out of the applicant’s control but had noted that they did not extend to excuse or explain his academic failures in 1997 and 1999.  It had also evaluated the applicant’s good faith by acknowledging the money spent on studies and the involuntariness of his departure from Monash.  In short, the Tribunal’s reasons, read as a whole, demonstrate that it addressed all relevant considerations.

21                  In respect of the alleged failure to apply certain guidelines supplied by PAM 3, the Minister contended that the Tribunal had interpreted and applied the law correctly.  In any case, he submitted, that policy, as outlined in PAM 3, is not “law” under s 476(1)(e).  Decisions of the Tribunal are required by s 476(1)(c) to be authorised by the Act and the Regulations not by “policy” which may be varied or reversed without parliamentary scrutiny.  Reference was made in this context to Xie (supra), in which it was held that policy should be given due weight but does not have the same force as law. 

22                  In relation to par 11.14 of PAM 3, Counsel for the Minister noted that the Tribunal had referred to the 1998 crisis in Indonesia which it regarded as the most convincing explanation for the applicant’s failures.  The Tribunal, he submitted, was not required to refer to matters, like the applicant’s fluctuating relationship with his girlfriend, which it considered as irrelevant to substantial compliance with course requirements.  The course leading to the degree of Bachelor of Business (Management) at Monash University had been nominated by the applicant in his application for a student visa in 1997, but he had not completed that course of studies.  At the time of the hearing, he was a student at RMIT University but not near completion of his course.  Consequently, it was open to the Tribunal to determine that, by the time the original visa expired, the course for which the applicant had received a visa would not be completed and that Condition 8202 would not be met.  Paragraph 11.15 of PAM 3, it was submitted, did not confer a discretion but was simply a reminder that loss of student status was not conclusive of non-compliance with course requirements, as the Tribunal was, in any event, aware.

23                  To the applicant’s contention, raised for the first time at the hearing in this Court, that the Tribunal was bound to have regard to compliance with the requirements of the applicant’s current course, the Minister replied that, under cl 560.21 of Schedule 2 to the Regulations, the Tribunal must be satisfied of the applicant’s status “at time of application”.  At the time of Mr Soegianto’s application, his visa was 16 days from expiring, yet he had not come close to completing the Monash course and could not complete it because he had been excluded for twelve months.  Further, it was impossible for him to complete the RMIT course before the expiry of the original visa.  Therefore, the Tribunal had properly considered whether, in all the circumstances, the applicant had complied with course requirements.

Reasoning

24                  It may be accepted, in the light of the authorities, that the Tribunal in assessing whether there has been substantial compliance in this context, is bound to take into account the applicant’s explanation for his failure fully to comply with course requirements.  However, that does not mean that every matter which an applicant puts forward by way of explanation must be allowed to excuse a failure of strict compliance.  Counsel for the applicant referred to Peng v Minister for Immigration and Multicultural Affairs [2000] FCA 1672, where Hely J said, at [13];

“On the hearing of this application, the Minister accepted that in determining whether the applicant had complied substantially with the 80% requirement, MRT was obliged to, but did not, take his explanation for his failure to comply into account:  see Kim v Witton (1995) 59 FCR 258, 270-271 per Sackville J.  Thus, the Minister accepted that the Tribunal made an error of law, but submitted that the matter should not be remitted to MRT for reconsideration, as the only decision which MRT could lawfully reach on the undisputed facts is a decision confirming the refusal of the applicant’s visa application.”

25                  However, in that case, as his Honour pointed out, there had been a conceded failure to take the applicant’s explanation into account at all.  In the present case, the Tribunal took account of each element of the applicant’s explanation but regarded only the civil unrest in Indonesia in 1998 as weighing in his favour by way of excusing his academic failures. 

26                  Counsel for the applicant acknowledged that the Tribunal had purported to apply the tests for substantial compliance formulated by Katz J in Baidakova (supra).  However, he submitted that it was not sufficient for the Tribunal to pay lip service to established principles or criteria; see Minister for Immigration and Multicultural Affairs v Sarrazola [2001] FCA 263, where Merkel J, with whom Heerey and Sundberg JJ agreed, said, at [53];

“The RRT cannot immunise itself from review by correctly stating the tests to be applied in order to determine whether the causal nexus requirements of Art 1(2A) are satisfied.  It must also correctly apply the tests.  Ultimately, “the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law”: see Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 7 (“Hope”) per Mason J.  In the present case, for the above reasons and the reasons given by Hely J in Sarrazola No 1, the RRT’s conclusions cannot reasonably be supported by the meaning to be ascribed to the words “for reasons of membership of a social group” in Art 1A(2) on the facts fully found by it: cf Hope at 10 per Mason J.  Thus, the conclusions of the RRT necessarily involved an error of law.

27                  However, in this case, the Tribunal did more than merely restate the matters which Baidakova had indicated were among those to be taken into account.  It examined what it considered to be the matters relevant to be taken into account and determined, as a question of fact, that there had not been substantial compliance with course requirements.  Its reasons do not disclose that it misdirected itself on any question of law and, in that sense, the present case is distinguishable from Sarrazola, where the Refugee Review Tribunal was held to have misdirected itself as to the meaning of the phrase “membership of a social group” when it found that it was incapable of extending to membership of a family however configured. 

28                  It was next submitted on behalf of the applicant that the Tribunal had failed to investigate the extent to which he had attended lectures and tutorials for the course.  In a related way it was said that the Tribunal had not referred to his difficulties in adjusting to Australian living conditions or attaining the necessary fluency in English to pursue the course to a successful conclusion.  In these respects, it was submitted, the Tribunal had failed to set out its findings on material questions of fact.  In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, which was decided after the present case was argued and after R D Nicholson J had published his reasons in Applicant Z v Minister for Immigration and Multicultural Affairs [2001] FCA 325, to which I was referred by Counsel for the applicant, McHugh, Gummow and Hayne JJ pointed out, at 17, that s 430 of the Act does not expressly oblige the Refugee Review Tribunal to make findings on every matter of fact objectively material to the decision which it is required to make.  Their Honours continued;

“Section 430 does not expressly impose such an obligation.  In its terms, it requires no more than that the Tribunal set out the findings which it did make.  Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made.  In Singh, significance was attached to the use of the word ‘material’ in s 430(1)(c).  It was said that ‘material’ in the expression ‘material questions of fact’ must mean ‘objectively material’.  Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make.  But it is not right to read ‘material’ as providing an objective or external standard of materiality.  A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision‑maker.  All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.” (original emphasis)

29                  The joint judgment in Yusuf went on to point out that s 430 entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material.  Accordingly, their Honours observed, at 18;

“The tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.” (original emphasis)

30                  However, a failure to mention every consideration urged by an applicant or objectively relevant to the evaluation which it is required to make does not necessarily give rise to the inference that the Tribunal has failed to take those considerations into account.  Whether it does give rise to such an inference is a matter of construction of the Tribunal’s reasons as a whole, according them the benevolent interpretation enjoined by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, where Brennan CJ and Toohey, McHugh and Gummow JJ, at 271, noted that in Collector of Customs v Pozzolanic (1993) 43 FCR 280, a Full Court of this Court had collected authorities for various propositions as to the practical restraints on judicial review.  Their Honours continued, at 272;

 “It was said that a court should not be “concerned with looseness in the language ... nor with unhappy phrasing” of the reasons of an administrative decision-maker [Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287].  The Court continued:  “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

These propositions are well settled.  They recognise the reality that 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 [See McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616].  In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”

31                  Reading the whole of the reasons of the Tribunal in the present case in that way, I consider that matters to which his Counsel pointed on the application for review were adverted to, or were impliedly assumed in the applicant’s favour.  For instance, it was noted in par 8 of the reasons that the applicant had “departed Australia and returned on five separate occasions during the period of the previous visa held but each absence was of short duration and appears to be at times when the education provider was not in session.”  I infer from that finding that the applicant had been in Australia at times when Monash University had scheduled lectures and tutorials, an assumption that he had attended most of them.  Similarly, these matters were noted by the Tribunal in par 21 of its reasons;

“The visa most recently held by the visa applicant was granted for him to study at Monash University and covered three years at that institution which is the normal period for a student to complete a degree of the type in which he was enrolled.  The Tribunal notes the oral evidence and documents submitted by the visa applicant concerning psychological problems arising from his anxiety about his family in Indonesia.  The Tribunal accepts the evidence from the visa applicant that the political situation in Indonesia, particularly for ethnic Chinese, may have had a significant impact on the ability of the visa applicant to concentrate on his studies during 1998, and that these events were outside his control.  The Tribunal also accepts that the visa applicant has invested substantial amounts of money in pursuit of his studies.  However, the Tribunal notes that the visa applicant was not a successful student at Monash in the preceding or the following year when his family circumstances seem to have been more normal.  The Tribunal notes that the visa applicant did not voluntarily change courses from Monash University before he was excluded.”

32                  The reference there to the lack of improvement in 1999, the third year of the applicant’s course at Monash, suggests that the Tribunal considered, but rejected, as a reason for his academic failures, the applicant’s slowness in adapting to Australian conditions.  It is significant that a letter dated 3 April 2000 from the Manager of the International Office of Monash University which was submitted to the Tribunal on his behalf, made no reference to any difficulty in mastering English.  The only allusion to that matter was in a letter to the Tribunal from the applicant’s migration agent which stated that “Difficult course content and problems with English compounded the applicant’s problems.”

33                  Similar considerations apply to the difficulties encountered by the applicant in his relationship with his girlfriend.  The Tribunal expressly referred to these when it noted that the applicant had elaborated on the letter from the Manager, International Office, Monash University “saying that his family’s business was not doing well and that his relationship with a girlfriend had its ‘ups and downs’.”  The appropriate inference from the Tribunal’s failure to refer again to those emotional difficulties is that it did not regard them as sufficiently palliating the succession of academic failures to permit it to be satisfied that there had been substantial compliance with course requirements.  In my view, the Tribunal accepted that the applicant had, for a combination of reasons, failed to complete, or make satisfactory progress in, the Monash course.  However, that acceptance did not deflect its attention from the ultimate question of fact which was whether the applicant had substantially complied with course requirements. 

34                  In relation to the use made by the Tribunal of the guidelines in PAM 3, Mr Gilbert of Counsel for the applicant submitted not that they had been inflexibly applied, as had been argued in Xie (supra), but that parts of PAM 3 had been overlooked by the Tribunal.  Consequently, Mr Gilbert invoked the well-known observations of Brennan J as President of the Administrative Appeals Tribunal in Re Drake (No 2) (supra), where his Honour said, at 645;

“These considerations warrant the Tribunal’s adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary.  If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice.  Injustice, in the context of ss 12 and 13 of the Migration Act, must mean a disproportion between the detriment suffered by those affected by the execution of a deportation order and the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community if the order were affirmed.

In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.

When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.  Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.”

35                  In a supplementary written submission on behalf of the applicant, reference was also made to the judgment of a Full Court of this Court in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, where it was observed in the joint reasons of French and Drummond JJ, at 208, that;

“If a decision-maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error.  In a limiting case a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion.  In such a case misconstruction of the policy may reduce to misconstruction of the statute or misunderstanding of is purpose.”

36                  The misconstruction or misunderstanding of PAM 3 which was imputed to the Tribunal in the present case was said to be reflected, first, in its failure to acknowledge the second sentence in the first dot-point of PAM 3 quoted at [7] above, namely that “failure to pass a course does not in itself mean that the student is not complying with this condition”.  However, the Tribunal expressly set out in par 19 of its reasons the part of PAM 3 containing that sentence and went on to consider in the passage quoted at [31] above matters other than the failure, without more, to pass the Monash course.  I am therefore not persuaded that the Tribunal misunderstood or misapplied this aspect of PAM 3.

37                  The second error of law in relation to PAM 3 was said to inhere in the Tribunal’s failure to consider the matter required by the fourth dot-point of par 11.14 of PAM 3 which referred to the fact that “the student ..... has enrolled in another institution or for another course.”  The existence of this alleged error of law is negated by the fact that the Tribunal in pars 11 and 12 of its reasons expressly referred to the fact that the applicant had enrolled in another course at a different institution.  To have allowed that fact to govern its attainment of the requisite satisfaction as to substantial compliance with course requirements to the total exclusion of what had happened in the Monash course, would, in my view, have been a grave misapplication of the Regulations.  What the applicant complains of in this context is that his improved performance in a short time at RMIT University did not outweigh, in the mind of the Tribunal, his dismal results over three years at Monash.  However, matters of weight like that were for the Tribunal to evaluate and the fact that the Court might have attached different significance to the respective considerations does not indicate an error of law.

38                  The final way in which the Tribunal was said to have misapplied PAM 3 was its failure to exercise what was said to be a “residual discretion” conferred by par 11.15 of PAM 3 quoted at [8] above which was argued to be available “notwithstanding the loss of student status.”  The first point which needs to be made about this submission is that, if the Tribunal, in deciding whether a visa should be renewed in these circumstances, is exercising a discretion, it is a “narrow” discretion in the second of the senses described by Gleeson CJ, Gaudron and Hayne JJ in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348, where their Honours said, at 1354 [19];

““Discretion” is a notion that “signifies a number of different legal concepts”.  [Norbis v Norbis (1986) 161 CLR 513 at 518, per Mason and Deane JJ.]  In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result”.  [Jago v District Court (NSW) (1989) 168 CLR 23 at 76, per Gaudron J.]  Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made.  [See Jago v District Court (NSW) (1989) 168 CLR 23 at 75-76, per Gaudron J;  Russo v Russo [1953] VLR 57 at 62, per Sholl J.  See also Pattenden, Judicial Discretion and Criminal Litigation (2^nd ed, 1990) at pp 5-6.]  The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion.  [Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504-505, per Dixon J;  R v Australian Broadcasting Tribunal;  Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49.]  On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.”

39                  That passage has recently been applied by a Full Court of this Court in Miller v Australian Industrial Relations Commission [2001] FCA 486, at [45].  In the present case the Tribunal was required to grant the application for a student visa once it was satisfied that there had been substantial compliance with course requirements.  The Tribunal had some latitude in the weight to be given to individual considerations which, in combination, tended for or against the attainment of the requisite satisfaction.  However, once the Tribunal determined that it was not satisfied that there had been substantial compliance with course requirements, there was no “residual” or other discretion to grant a visa notwithstanding.  See e.g. Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, per Gummow J at 647, Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 at 563, Yong v Minister for Immigration and Multicultural Affairs (2000) 62 ALD 687 at [11], and Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1285 at [6].  All that cl 11.15 of PAM 3 indicated was that a loss of student status was not conclusive against the Tribunal’s being satisfied that course requirements had been substantially complied with.  The Tribunal in the present case was aware that PAM 3 had that effect because it referred to other matters, including the applicant’s enrolment at RMIT University and his bona fides as demonstrated by payment of substantial course fees, before noting that he had been involuntarily excluded from the Monash course.

40                  The contention on behalf of the applicant which was raised for the first time in oral argument on the hearing of the appeal was to the effect that the Tribunal had erred in law by excluding from consideration the applicant’s satisfactory compliance with the requirements for the course leading to the degree of Bachelor of Business at RMIT University.  That was the course being pursued by the applicant when the Tribunal considered his application.  However, as evidenced by par 8 of its reasons quoted at [3] above and the matters referred to in the last preceding paragraph, the Tribunal clearly referred to the fact of the applicant’s recent enrolment at the RMIT University.  A full reading of its reasons demonstrates that it did not regard that matter as irrelevant to its attainment of the requisite satisfaction that the applicant had substantially complied with course requirements.  “Course requirements”, I consider, refers to the requirements of the course, or courses, undertaken from time to time during the currency of the visa.  The Regulations condition the initial grant of a visa on enrolment to undertake a full-time course of study that is registered or otherwise approved as contemplated by the Regulations;  see e.g. cl 560.222 of Schedule 2.  Accordingly, if the applicant has changed from one registered or otherwise approved course to another very early in the currency of a relevant visa, it may be open to the Tribunal, in assessing compliance with “course requirements” as a whole, to disregard or heavily discount a conceded failure to comply at all with the requirements of the first course.  However, it by no means follows that the Tribunal is bound, as a matter of law, to have regard only to compliance with the requirements of a second course which is commenced late in the life of an initial student visa.

Conclusion

41                  It will be apparent that, for the reasons just explained, each of the errors of law to which the applicant has pointed has either been rendered unavailable by the judgment of the High Court in Yusuf or has not been made out upon examination of the Tribunal’s reasons properly understood.  The application must therefore be dismissed with costs.

Associate:

Dated:              15 November 2001