FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural Affairs v Modi[2001] FCA 1656

MIGRATION - sub-class 560 student visa - decision of Migration Review Tribunal - whether substantial compliance with condition 8202 - whether finding that applicant had 'flouted' condition was an error of law or fact - effect of such an error on the finding that the applicant had not complied substantially with condition 8202

WORDS AND PHRASES - "flouted" "substantial compliance"

Migration Regulations 1994 (Cth) reg 560.213, Schedule 2 clause 8202

Navin Shrestha v Minister for Immigration and Multicultural Affairs [2001] FCA 1578 followed

Kim v Witton (1995) 59 FCR 258 followed

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

Minister For Immigration And Multicultural Affairs V Jay Modi

V642 OF 2001

BLACK CJ, DRUMMOND AND R.D. NICHOLSON JJ

MELBOURNE

22 NOVEMBER 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1                     The appeal be allowed.

2                     The orders of the trial judge be set aside and in lieu thereof it be ordered that the application for review be dismissed, with costs.

3                     The costs of the appeal be paid by the Respondent.

4                     A certificate under the Federal Proceedings (Costs) Act 1981 (Cth) be granted to the respondent in respect of the appeal.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

5                     This is an appeal from a judgment of a single judge of this court (Modi v Minister for Immigration & Multicultural Affairs [2001] FCA 529) by which it was ordered that there be set aside a decision of the Migration Review Tribunal ("MRT") affirming a decision of the delegate of the Minister not to grant to the applicant (who is the respondent to this appeal) a Student (Temporary) (Class TU) sub-class 560 visa ("subclass 560 visa"). It was also ordered that the application be remitted to the Tribunal differently constituted for further consideration according to law.

6                     The relevant facts may be summarised briefly. The respondent, Mr Jay Modi, is a 24 year old citizen of India who arrived in Australia on 1 March 1997 on sub-class 560 visa. He enrolled at Casey TAFE college and completed one year of study towards a Diploma of Marketing, passing 8 out of ten subjects. In December 1997 he was seriously injured in a car accident and was in a coma for some time and suffered serious injuries including fractures of the skull and ankle.

7                     A second sub-class 560 visa was issued in February 1998. Mr Modi enrolled in a course for an Associate Diploma of Business (Marketing) at Chalmers Business College. He commenced studying in February 1998, but was unable to continue because of his injuries. He became depressed and lonely. He did not attempt exams or written assessment during 1998 and did not attend classes, although he continued paying his fees. He did not discontinue his course, nor did he notify the College or the Department.

8                     In first semester 1999 he started off by attending classes but was involved in another car accident which aggravated his injuries and he did not complete any assessment for that semester.

9                     On 27 July 1999 Chalmers College wrote to him notifying him that he was not meeting his course requirements and that the Department was monitoring his academic performance. He did not study in second semester 1999 as he had decided to changes courses and to commence a new course in first semester 2000.

10                  The respondent changed courses and commenced study for a Diploma of Multimedia in February 2000. His performance improved and he passed all eight subjects and obtained distinctions. His injuries and psychological state were much improved.

11                  On 15 March 2000 the respondent's visa expired and he applied for a further sub-class 560 visa. The application was refused by a delegate of the Minister on 4 April 2000. The respondent applied to the MRT which, on 29 November 2000, affirmed the decision of the delegate.

12                  The reasons of the Tribunal are set out in the reasons for judgment of the primary judge at [18].

13                  The Tribunal concluded that Mr Modi had not complied substantially with condition 8202 of his visa and did not satisfy the requirements of clause 560.213 of the Migration Regulations 1994 (Cth) ("the Regulations"). The Tribunal accordingly affirmed the decision under review to refuse a further subclass 560 visa to Mr Modi.

14                 It is convenient at this point to refer to the relevant provisions of the Regulations as they applied at the date on which the visa application was made, noting that they have subsequently changed.

Clause 560.213 provided:

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.

The relevant condition, 8202, stated:

The holder must satisfy course requirements.

15                  To succeed in an application for a sub-class 560 visa, a visa applicant must satisfy the criteria set out in clause 560 (which of course includes 560.213). Accordingly the decision-maker was required to consider whether or not Mr Modi had complied substantially with the conditions of his previous visa when considering the application in question. Both the delegate and the Tribunal found that Mr Modi did not substantially comply with clause 560.213.

16                  In reaching its decision, the Tribunal applied Baidakova v MIMA [1998] FCA 1436, a case concerning the same issue of whether the applicant had complied with course requirements. In that case, Katz J cited with agreement a passage in the decision of Sackville J in Kim v Witton (1995) 59 FCR 258 at 271 in which Sackville J set out considerations relevant to the determination of the issue of substantial compliance with a visa condition. At the commencement of the passage that Katz J cited, Sackville J said:

"[I]n determining whether an applicant has complied substantially with a condition imposing a prohibition, the Tribunal should consider the relevant circumstances of the case"

Sackville J then went on to say that those circumstances included "whether or not the applicant deliberately flouted the condition".

17                  Sackville J was careful to say that the list of considerations and circumstances was not intended to be exhaustive and that, in general, it was a matter for the Tribunal to assess the weight to be accorded to such factors, having regard to the circumstances of the case. He added (at 271):

The mere fact that an applicant did not appreciate that his or her conduct breached a condition does not necessarily establish that he or she had complied substantially with that condition.

18                  We should note that on the hearing of the appeal it was common ground that, consistently with Baidakova and according to the evidence in the particular case, a decision-maker, in determining whether there has been substantial compliance with course requirements as required by condition 8202, is entitled to take into account a range of subjective matters such as the applicant's reasons for failing to satisfy those requirements.

19                  Kim v Witton and Baidakova were followed by Gray J in Navin Shrestha v MIMA [2001] FCA 1578 and by Ryan J in Soegianto v MIMA [2001] FCA 1612.

20                  When the present case came before the Court on an application for judicial review several grounds of review were put forward. The learned trial judge rejected all but one of them and nothing further was said on the hearing of the appeal about the grounds rejected by His Honour. In relation to the ground now in issue the trial judge held, however, that the Tribunal had, in effect, misunderstood the concept of 'flouting' and that in doing so it had

"attributed a more serious level of breach to [Mr Modi] by misunderstanding the concept of flouting and using a finding that he flouted the condition as part of its reasoning process to arrive at a conclusion that there was not substantial compliance"[28]

His Honour cited the decisions of Sackville J in Kim v Witton and Katz J in Baidakova.

21                  Before us, the appellant argued that the primary judge was in error in several respects, but essentially the argument was that any misconception of the term 'flouting' did not constitute an error of law as there was no requirement to make a finding about 'flouting' as part of the reasoning process and that, in any event, if there were any error it did not infect the Tribunal's ultimate decision that there had not been substantial compliance with condition 8202.

22                  Counsel for the respondent argued that the Tribunal had indeed misinterpreted the concept of flouting and, citing Australian Broadcasting Authority v Bond (1990) 170 CLR 321, that its error was such that it could not be said to have had no effect on the Tribunal's decision.

23                  In our view, the correct approach to the issues in this case is that taken by Gray J in Shrestha at [17] where his Honour pointed out that the considerations listed by Sackville J in Kim v Witton were not to be elevated to the status of relevant considerations in every case. His Honour observed that the circumstances of the case will determine what the statutory duty of the decision-maker involves in those circumstances and that there is no rigid test.

24                  The Tribunal, in determining whether on the facts found by it Mr Modi had substantially complied with condition 8202, was entitled to have regard to the nature of Mr Modi's conduct that resulted in his having failed to comply with his course requirements. It described that conduct as involving a 'flouting' of the visa conditions. When it did so it was doing no more than making a factual assessment of a matter that it was entitled to take into account in determining whether there was substantial compliance. That factual assessment involved no error of law.

25                  As we read the Tribunal's decision, it consciously had regard to the notion of "deliberate" flouting as an element to be considered in the light of all the circumstances in determining whether there had been substantial compliance. The Tribunal did not go beyond having appropriate regard to the considerations referred to in cases such as Kim v Witton and Baidakova and its approach did not involve any error of law. As we have noted, it was not disputed that the concept of "deliberate" flouting could be relevant to the Tribunal’s consideration of the application.

26                  It is true that the Tribunal made reference to "the test" in Baidakova, and as Gray J pointed out in Shrestha, it is not right to regard those cases as establishing any "test". We consider however that it is clear from the Tribunal's reasons as a whole and in particular from paragraphs 23, 24 and 28 of those reasons that it was not in truth applying a 'test' and was not thereby diverted from the task of considering whether, in all the relevant circumstances, Mr Modi had complied substantially with condition 8202 of his visa.

27                  For these reasons we would allow the appeal, set aside the orders of Heerey J and dismiss the application for review of the Tribunal’s decision.

Associate:

Dated: 22 November 2001