FEDERAL COURT OF AUSTRALIA

Gurung v Minister for Immigration &Multicultural & Indigenous Affairs [2002] FCA 772

MIGRATION – application for review of MRT decision refusing to grant a student visa – refusal to grant student visa based on applicant’s non-compliance with Condition of grant of visa – whether substantial compliance with Condition – whether Tribunal applied correct form of the Condition – whether Tribunal erred in concluding that applicant’s academic results were not satisfactory – whether applicant received a fair hearing before the Tribunal – application of privative clause

Migration Act 1958 (Cth) s 425

Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) (No 168, 2000)

Kim v Witton (1995) 59 FCR 258 referred to

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited

BHARAT GURUNG v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 136 OF 2002

TAMBERLIN J

SYDNEY

26 JULY 2002

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant is to 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 for judicial review of a decision made by the Migration Review Tribunal (“the Tribunal”) on 30 January 2002 affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) that a visa applicant was not entitled to the grant of a Student (Temporary) (Class TU) visa.  The applicant applied for the student visa on 15 March 2001.  The delegate’s decision to refuse the visa was made on 26 April 2001.

2                     The applicant is a national of Nepal, born on 22 January 1972.  He first entered Australia on a student visa on 26 August 1995.  The visa was valid until 10 September 1996 and was subsequently extended on a number of occasions until 15 March 2001 when it expired and the applicant unsuccessfully applied for a new student visa.  The applicant has since held a bridging visa granted on the basis of the unsuccessful application for a visa which is the subject of review.

3                     The Minister’s delegate refused the visa on the basis that the applicant had not substantially complied with Condition 8202, which was a term of being granted what was then classified as a Subclass 560 visa in accordance with cl 560.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).  In particular, the delegate’s decision was based on the fact that the applicant had passed only one subject out of fifteen subjects of a Bachelor of Economics course undertaken at the University of New South Wales in his first three years of study between 1998 and 2000. 

4                     The applicant had stated in writing when lodging his application for the visa that he found the course difficult.  This made him depressed and led him to gambling.  He said that he had realised his mistake and wanted a second chance.  He claimed that during the period in question, gambling became an addiction which caused him to lose everything.

5                     The Tribunal was aware of these claims by the applicant.  Prior to the hearing before it, the Tribunal wrote to the applicant on 6 November 2001, inviting him to comment on his academic performance at the University.  In his reply of 3 December 2001, the applicant admitted his inadequate performance and attributed this to a lack of proficiency in the English language and personal predicaments.  He said that he was practising writing and reading English and requested another chance to continue his studies. 

6                     At the Tribunal hearing the applicant confirmed that a preoccupation with gambling had been the principal cause of his poor academic performance.  He provided the Tribunal with academic results for the second semester of 2001, which showed he had passed two subjects of the four subjects studied in that semester.  He had failed the other two.  He also provided evidence that he had passed the two subjects undertaken at the Sydney University Summer School in 2001-2002.  The applicant said that he was confident that he would complete his Bachelor of Economics degree at the University of New South Wales by the end of 2003 and appealed to the Tribunal to give him a chance to do so.

Tribunal reasons

7                     The Tribunal reasoning and the relevant provisions are set out in the decision appealed from as follows:

“FINDINGS AND REASONS

13.       At the time the visa application was lodged, Class TU contained a number of subclasses.  The only subclass in respect of which any claims have been advanced is Subclass 560.  There is no evidence to suggest that the visa applicant meets key criteria for the other subclasses.

14.       One of the criteria to be satisfied at the time of application for the grant of a Subclass 560 visa is that ‘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’ (clause 560.213 of Schedule 2 to the Regulations).  At the time of decision, the visa applicant must continue to satisfy the criterion in clause 560.213 (clause 560.227 of Schedule 2 to the Regulations).

15.       At the time of the visa application, the visa applicant held a Subclass 560 visa, which included the following conditions:

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.

As the visa was in effect on, or granted after, 21 December 2000, this version of 8202 applies:

8202 –The condition is that:

(a)       in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student – the holder is enrolled in a full-time course of study; and

(b)        in any other case – the holder is enrolled in a registered

            course; and

(c)        in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:

(i)         for a course that runs for less than a semester – for the

                                    course; or

(ii)       for a course that runs for at least a semester – for each term and semester of the course; and

(d)       in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory:

(i)        for a course that runs for less than a semester – for the course; or

(ii)       for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.

8501 –The holder must maintain adequate arrangements for health insurance while the holder is in Australia.

8503 –The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

8517 –The holder must maintain adequate arrangements for the education of any school-age dependant of the holder who is in Australia for more than 3 months as the holder of a Subclass 560 (as a person who has satisfied the secondary criteria) or 563 visa.

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

17.       Generally the Tribunal must have regard to visa conditions that were applied when the visa was granted – see Pradhan.

18.       In Baidakova, Katz J referred to matters to be taken into account when deciding whether an applicant has substantially complied with a visa condition.  Katz J quoted the following passage from the judgment of Sackville J in Kim v Witton (1995) 59 FCR 258:

            …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.

19.       The visa applicant has studied Bachelor of Economics (International Business) at the University of NSW since 1998.  The CRICOS Code was 001920G.  The proposed course start date was 16 March 2001 and the proposed date of completion is end December 2002.  The visa applicant has Overseas Students Health Cover.

20.       The UNSW academic transcript showing the visa applicant’s results from semester 1, 1998 to semester 2, 2000 indicates that he passed 1 and failed 14 of 15 subjects undertaken.  A further transcript for semester 2, 2001 indicates that the visa applicant passed 2 and failed 2 of the 4 subjects undertaken.  The visa applicant has not provided the Tribunal with any certification from the UNSW that his academic results to date are deemed satisfactory.

21.       Paragraph (d) of condition 8202 essentially requires the visa applicant to perform satisfactorily in his academic studies.  The Tribunal considers that the academic performance summarised in the previous paragraph (20) cannot be deemed satisfactory.  Notwithstanding the circumstances cited by the visa applicant in explaining his poor academic performance – depression leading to gambling, English language difficulties (see paragraphs 10 to 12 above) – the Tribunal can find no way, applying Baidakova or otherwise, that the visa applicant could be deemed to have substantially complied with condition 8202.

CONCLUSION

22.       Given the findings made above, the Tribunal has no alternative but to affirm the decision under review.”

REASONING

8                     The applicant made three main submissions in relation to the decision of the Tribunal and alleged that when considered together or separately each of these submissions would show that the Tribunal had erred in its reasoning.

9                     The first submission was that the Tribunal had referred to the wrong form of Condition 8202.  It is said that the Tribunal should have applied Condition 8202 as it applied at the date of grant of the previous visa on 5 December 1997.  In its earlier form the Condition read:

“8202.  The holder must satisfy course requirements.”

10                  The difficulty which this submission faces is that effectively from 21 December 2000 the Condition was amended to provide that Condition 8202 in the form applied by the Tribunal should apply to all student visas in effect as at 21 December 2000 and to all student visas granted after that date and before 1 July 2001: see the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) (No 168, 2000).

11                  Having regard to these statutory amendments which were clearly designed to ensure that this Condition was uniform in relation to all student visas, there is no substance in the argument advanced by the applicant on this point.  The Tribunal applied the correct form of Condition 8202.

12                  The second argument raised by the applicant was that the Tribunal had erred in finding that the academic performance of the applicant could not be deemed satisfactory and in expressing the view that the circumstances cited by the applicant in explaining his poor academic performance did not mean that the applicant could be deemed to have substantially complied with the Condition.  There is no dispute that substantial compliance with the Condition is sufficient. 

13                  At the time of the application before the Tribunal, cl 560.213 of Schedule 2 to the Regulations specified that at the time of the visa application it is sufficient if the applicant has complied substantially with the conditions to which the visa, held or last held by the applicant, is or was subject.  This means that neutral and absolute technical compliance is not required.  Therefore, in the present case, it would be sufficient if the applicant had complied substantially with the requirements of Condition 8202.

14                  As the Tribunal points out in par 20 of its decision, there was no evidence before the Tribunal of any certification from the University of New South Wales that the applicant’s academic results to date were deemed satisfactory.  Condition 8202(d) requires that the holder of the visa achieve an academic result that is certified by the education provider to be at least satisfactory for the course where it runs for less than a semester or, for a course that runs for at least a semester, for each term or semester of the course.  In the present case there was no such certification and in making its finding, the Tribunal has not usurped or encroached upon the province of the educational institution.  On its face, it was clearly open for the Tribunal to make a finding that the academic performance of the applicant was not satisfactory having regard to his high failure rate.  It is pointed out by counsel for the respondent that in some cases the failures occurred in relation to subjects which had been repeated.

15                  In its reasons the Tribunal referred to the decision in Kim v Witton (1995) 59 FCR 258, where the Court set out the relevant principles relating to a determination of whether there had been a breach of a condition within the meaning of the Regulations.  In the present case there is nothing to indicate that the Tribunal has adopted the wrong principles or has misapplied those principles to the circumstances of this case.  Furthermore, I do not consider that the evidence indicates any substantial compliance with Condition 8202.

16                  In the absence of any certification by the University one of the cumulative requirements of Condition 8202 had not been satisfied.  Accordingly, I do not consider that the reasons of the Tribunal disclose any error of law or principle based on this submission.

17                  The third submission by the applicant is that he did not receive a fair hearing. 

18                  Under s 425 of the Migration Act 1958 (Cth) (“the Act”) the obligation of the Tribunal is to invite the applicant to appear before it to give evidence and present arguments pertaining to the issues arising in relation to the decision under review.  Section 427(6) of the Act provides that a person appearing before the Tribunal to give evidence is not entitled to be represented before the Tribunal or to examine or cross-examine any other person appearing before the Tribunal to give evidence.  A copy of the transcript of the hearing before the Tribunal was supplied to the Court.  The hearing was fairly brief and towards the conclusion of the hearing, the Tribunal indicated that there was sufficient information before it, but went on to ask the applicant if there was anything further which he wished to say and the applicant informed the Tribunal that he did not wish to take up this opportunity.  Having considered the transcript as a whole, I am not persuaded that there was any breach of natural justice or unfairness in relation to the way in which the hearing was conducted.  I am satisfied that the requirements of the Act in relation to the provision of a hearing were satisfied.

19                  Having regard to the above conclusions, it is not necessary for me to decide in any detail whether the provisions of s 474 of the Act preclude review in the present case by this Court.  However, I should add that even if any or all of the alleged errors had been made out they are protected by the provisions of s 474 and they do not come within the limited class of fundamental exceptions to such a protective clause as set out in the line of authorities stemming from the decision in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.

20                  Accordingly, for the above reasons I consider that the present application must be dismissed with costs.

Associate:

Dated:              26 July 2002