FEDERAL COURT OF AUSTRALIA

Habib v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1003

MIGRATION – Migration Review Tribunal – student visa – visa subject to conditions – substitution of conditions – requirement to comply substantially with conditions attaching to earlier visa – whether tribunal erred in finding that evidence was inconsistent – whether tribunal guilty of bias – whether tribunal failed to consider evidence

Migrations Regulations 1994 (Cth) Sch 2 cl 560.213, Sch 8 condition 8202

Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) Sch 4 item 4

Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498 discussed

TAHIR HABIB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 20 of 2002

FINKELSTEIN J

MELBOURNE

16 JULY 2002

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     Mr Habib applied for a Student (Temporary) Class TU visa, subclass 560, to enable him to remain in Australia to undertake studies.  His application was refused by a delegate of the Minister, and the Migration Review Tribunal affirmed that decision.  Mr Habib now seeks to review the tribunal’s decision and appears on his own behalf to prosecute the claim.

2                     Mr Habib’s application sets out a number of the grounds upon which he relies to challenge the tribunal’s decision.  I will recite the grounds at this point although they cannot be understood without reference to the facts of the case which I will summarise later.  Mr Habib claims that the tribunal fell into error because:

“(1)     Migration Review Tribunal called my document as fabricated and

            inconsistent which is not true.

(2)               Migration Review Tribunal said even if my evidences were true these will not be considered as a reason for not attending classes, meaning there decision was already made up which is unfair. and

(3)               They did not consider the fact that I was stopped by the institute to attend classes.”

3                     The Migration Regulations 1994 (Cth) contain the criteria that a visa applicant must satisfy to obtain the grant of a visa.  An applicant for a subclass 560 visa must conform tothe criteria in Part 560 of Schedule 2 of the Regulations.  The only condition which is at issue in this case is that found in cl 560.213.  That clause provides that if the application for a visa is made in Australia the applicant must satisfy the Minister that he has substantially complied with the conditions (if any) to which the visa held or last held by the applicant was subject.

4                     Mr Habib had previously held a student visa which had been granted to him on 6 March 2000.  That visa was subject to condition 8202 in Schedule 8 of the Regulations.  So far as is material condition 8202 provided:

“The holder:

(a)   must…be enrolled in a registered course: and

(b)   must…

(i)                 attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider; or

(ii)               if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory”

5                     In December 2000 condition 8202 was replaced by a new condition that applied to all student visas that were in effect at the time of the change.  The change was made by the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth).  The relevant parts of the new condition 8202 are in the following terms:

“(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) or the course.”

6                     There is a controversy about whether the new condition had effect from the time of the grant of the student visa to which it applies or whether the old condition remained in force until December 2000 and was then replaced by the new condition.  In Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498 I preferred the latter position.  The Minister argues in favour of the former and has appealed my decision in Kwan.  For reasons which will soon become apparent it is not necessary for me to revisit this issue.  I should point out, however, that in considering the effect of the legislation which introduced the new condition I did overlook a point.  The new condition was introduced by Schedule 4 of the Amendment Act.  Item 4 of that schedule contains a number of provisions, one of which appears to contemplate that the Minister has the power to cancel a visa for non-compliance with the new condition even if that non-compliance predated the Amendment Act.  This item favours the Minister’s argument and is a point that I should have dealt with.

7                     The tribunal found that Mr Habib did not substantially comply with condition 8202 during the term of his previous visa.  It seems the tribunal had in mind new condition 8202 when reaching that conclusion.

8                     The material before the tribunal indicated that during the academic year 2000 Mr Habib was enrolled in an Advanced Diploma of Business (Accounting) at the Chalmers Institute.  A certificate obtained from the Institute states that Mr Habib’s attendance between 7 February 2000 and 1 December 2000 was “unsatisfactory (less than 50%)”.  So far as his academic achievement was concerned, Mr Habib did not complete any assignments during that year and did not sit any exams.  So on no view of the matter could his academic achievement be described as “at least satisfactory”, as required by either the old or new condition.  In any event, the Chalmers Institute did not provide a certificate to the effect that Mr Habib’s academic achievement was satisfactory.

9                     These matters are not disputed by Mr Habib and indeed were conceded at the hearing before the tribunal.  Mr Habib claimed that his lack of progress and attendance were due to factors beyond his control and not because he was not a genuine student.  Mr Habib explained that in 2000 he returned to Pakistan to visit his brother who had become extremely ill with hepatitis C.  Mr Habib said that his concern about his brother’s illness had caused him to suffer from stress, anxiety and depression, and consequently he could not concentrate on his studies.  He submitted a medical certificate relating to his brother’s illness and medical certificates confirming his own condition.

10                  The tribunal dealt with these matters in the following way:

“The visa applicant claimed that he failed to attend classes because he was concerned about what was happening at home and in particular his belief that something was wrong with his brother.  The Tribunal could understand if this was the reason why his academic performance was bad but it does not appear to be a reason not to attend classes.  The medical evidence provided by the visa applicant was inconsistent with his evidence to the Tribunal.  The doctor’s report indicates that his brother was in a serious condition until September 2000 yet the applicant’s evidence was that in May-June 2000 he was aware that his brother had recovered and he was fully recovered when the visa applicant returned to Australia on 3 August 2000.  As the visa applicant was aware that his brother had recovered before he went to Pakistan it is difficult for the Tribunal to reconcile Dr Mumtaz’s statement that he was suffering from depression and a mental disorder whilst he was in Pakistan.  The Tribunal finds based on these inconsistencies, that even though his brother may have been sick, the visa applicant has exaggerated the extent of his condition and the effect it had on him.  Further the visa applicant stated that he was aware that his brother had recovered in May-June 2000 which does not explain his failure to sit any exams in 2000.  The visa applicant travelled to Pakistan on 3 July 2000 and returned on 3 August 2000 given the visa applicant’s evidence that the second semester commenced in July it would appear that there would have been time to make up the classes.  The visa applicant has provided a medical certificate for the period in late August 2000. He claimed he was sick as a result of drinking contaminated water in Pakistan.  Yet the certificate was for a period some three week as after he returned.  The visa applicant’s evidence was contradictory and vague when asked to explain this and the reasons for obtaining the certificate.  Further the Tribunal notes that on the face of it the number of days ill appears to have been altered and the date where the form states the visa applicant will be recovered is left blank.  In the circumstances the Tribunal does not place any weight on this certificate and does not accept that the applicant was too unwell to attend classes.”

11                  For these reasons the tribunal said that while his brother’s sickness may have caused Mr Habib some anguish it did not justify his failure to attend classes or sit exams.  Accordingly, the tribunal found that it could not be satisfied that Mr Habib had substantially complied with condition 8202 of his previous visa.  Mr Habib’s failure to satisfy one of the criteria for the grant of the visa required the tribunal to uphold the decision of the delegate.

12                  I turn now to Mr Habib’s complaints.  The first is that the tribunal was in error in finding that he had produced inconsistent evidence to the tribunal.  An examination of the material, however, suggests that the tribunal’s view of the matter was correct.  One of the documents Mr Habib produced to the tribunal was a report from Dr Mumtaz, a neurologist in Pakistan.  The report is dated 3 October 2000.  It states that Mr Habib’s brother “suffered from Hepatitis ‘C’ and remained in serious condition from November 1999 to September, 2000 under [the doctor’s] treatment.”  The tribunal pointed out that Mr Habib had returned to Pakistan to visit his brother in July 2000; that is, after the time (May or June 2000) he learnt that his brother had fully recovered from his illness.  In that circumstance the tribunal was right to treat somewhat sceptically the evidence to the effect that Mr Habib was suffering from depression while in Pakistan.  That evidence was inconsistent with Mr Habib’s general account of events because his brother’s illness could not have been a trigger for his depression.  In any event, if the tribunal has made any error, it is an error of fact and not of law and thus an error for which judicial review is not available.

13                  The second complaint seems to be that the tribunal was guilty of bias.  That is to say, Mr Habib appears to be contending that, regardless of the case that he put, the tribunal had a closed mind to his application so that it was doomed to failure.  The basis upon which Mr Habib makes this allegation is not clear.  In particular, Mr Habib has not pointed to anything that the tribunal said or did that would justify the drawing of an inference that the tribunal had a closed mind to his case.  It is true that the tribunal found inconsistencies in his evidence.  It also rejected Mr Habib’s evidence that he was too unwell to attend classes or sit exams.  But, as the Minister correctly points out, none of these findings could justify a claim that the tribunal had prejudged Mr Habib’s application.

14                  The final point that Mr Habib makes in his application for review is that the tribunal failed to take into account that the Chalmers Institute had stopped him taking classes.  This complaint may be based on a written submission to the tribunal made by Mr Habib’s migration agent.  According to the migration agent, when Mr Habib returned to Australia “Chalmers told him that his name was no longer on the attendance list and they would not be able to give him an attendance record”.  The point was dealt with by the tribunal.  It said:

“[Mr Habib] claimed he took the medical certificate to the college.  It was put that when he gave them the medical certificate his enrolment was cancelled and they would have informed him of this.  He stated that they only told him by letter.  He then stated he did not give a medical certificate to the college because he did not realise it was going to be such a major problem.  They told him to show it to the Department

He did not take the certificate to the college.  It was put to the visa applicant that he had said the purpose he got the certificate was because he had missed classes so why didn’t he give it to the college.  He said it was a year ago he (sic) and he is not sure and he did not show it to the college until he got the letter about his enrolment being cancelled.”

15                  It is a little difficult to reconcile Mr Habib’s evidence as summarised in the tribunal’s reasons and the statement made by Mr Habib’s migration agent.  It is also difficult to ascertain precisely when it was that the Chalmers Institute informed Mr Habib, if indeed it did so inform him, that his enrolment at the College had been cancelled.

16                  Whatever be the true position, it is clear that if Mr Habib’s enrolment was cancelled that cancellation was a response to his failure to attend classes, submit assignments and sit exams.  It is not unusual for an academic institution to take such action in the case of a student who does not perform adequately or, as in Mr Habib’s case, who does not appear to be performing at all.  If the tribunal made a mistake about what precise position the Institute took with respect to Mr Habib, and it is by no means clear that it made any such mistake, it may be the result of the confusing way in which this part of the case was put.  In any event, and this is the real point, it does not appear that the tribunal erred in law by failing to take into account Mr Habib’s particular position at the Institute for there is no reason to think that the tribunal failed to take into account the very facts which it had recited in its reasons.

17                  I should also mention that as part of his submission, Mr Habib tendered an affidavit in which he explained why his progress at the Chalmers Institute was not satisfactory.  I do not know whether the explanation is the same as the explanation that was given to the tribunal.  Be that as it may, I must ignore the material in the affidavit because on this application it is not permissible for Mr Habib to submit fresh evidence.

18                  I will not mention each of the additional criticisms that Mr Habib makes of the tribunal’s decision.  Many of his criticisms amount to no more than challenges of the findings of fact made by the tribunal.  Others raise questions which appear to be of importance to Mr Habib, but were not regarded as relevant by the tribunal for it made no mention of them.  There are some matters that I should specifically deal with.

19                  Mr Habib points out that he had previously had two renewals of his student visa.  He says that the fact that both of these renewals were “granted without any problems” indicates that he complied fully with “all the rules and regulations”.  As should by now be apparent to Mr Habib, the earlier renewals of his visa “without any problems” are not matters which are relevant to his current application.  The only question at issue before the tribunal was whether Mr Habib had complied with the conditions that attached to his last visa.  That he may have complied with conditions that attached to earlier visas is of no relevance to that question.

20                  Mr Habib also points out that the tribunal did not take into account the fact that he is performing satisfactorily at Deakin University where he is currently a student.  It is true that the tribunal did not take his Deakin results into account.  The criteria which Mr Habib was required to satisfy did not relate to his time at Deakin, save for a few weeks in February and March 2001.  The tribunal correctly ignored Mr Habib’s performance at Deakin after 15 March 2001, by which time his previous visa had come to an end.

21                  Next, Mr Habib says that he is being treated harshly for not complying with a condition that he did his best to follow.  In support of this submission he points to the fact that he was given permission to be absent from the Chalmers Institute from 3 July to 7 August 2000 and that, after his return from Pakistan, he could not attend classes because he was ill from drinking contaminated water.  He refers again to the Institute’s refusal to permit him to attend classes.

22                  A perusal of the tribunal’s reasons shows that it took each of these matters into account in deciding whether or not Mr Habib had satisfactorily complied with condition 8202.  Once it is shown that the tribunal took these matters into account its decision cannot be challenged merely because it did not draw what Mr Habib says are the correct conclusions from the material.  That is, the tribunal did not commit an error of law by failing to hold that these matters meant that Mr Habib had substantially complied with condition 8202 of his previous visa.

23                  Mr Habib’s last point, which is a point he stressed during his submissions, is that if the tribunal had regard to new condition 8202 it was in error by failing to take into account the fact that during the first semester of the year 2000 Mr Habib had attended at least 80 per cent of the classes and tutorials, and that it was only in the latter semester that there was a lapse in attendances. 

24                  Again I must reject the argument.  The tribunal had obtained a certificate which stated that Mr Habib’s attendance at class was unsatisfactory during the academic year 2000.  The tribunal pointed out that the Institute could not provide attendance records on a semester by semester basis.  It nevertheless came to the conclusion that Mr Habib’s attendance, if examined on a semester by semester basis, was still unsatisfactory.  In making this finding the tribunal relied upon “the visa adviser’s concession that the visa applicant’s attendance was unsatisfactory throughout the relevant period and the applicant’s evidence that he did not attend classes in both semesters of 2000”.  I have looked at the “adviser’s concession”.  It is to be found in a submission to the tribunal dated 24 July 2001 in which Mr Habib’s migration agent had written:

“The department’s decision was based on the claim that my client failed to comply with a condition of his previous student visa, inasmuch as he had not maintained 80% attendance in his course between February 2000 and December 2000.  … My client admits that his attendance in the period in question was less than 80%.”

The agent then went on to proffer an explanation.  Although the agent’s statement is ambiguous, it does support the finding made by the tribunal.

25                  Finally, it is necessary to return to the possibility that the tribunal determined the application on the basis that Mr Habib had failed to satisfy new condition 8202.  It may have been in error in that regard.  However, it is clear that the analysis undertaken and the conclusion reached by the tribunal would be the same if it had had regard to the former condition 8202.  Put another way, if, as I suspect, the tribunal found that Mr Habib had failed to comply with new condition 8202, the reasoning that lead it to that conclusion would require it to find Mr Habib did not satisfy old condition 8202.  In that circumstance, even if the tribunal did err in considering the application on the basis of new condition 8202, there would be no point in remitting the matter for reconsideration, because the result would be the same.

26                  For these foregoing reasons I would dismiss the application with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:

Dated:   9 August 2002

The Applicant appeared in person.

Counsel for the Respondent:                 Mr P Gray

Solicitor for the Respondent:                 Australian Government Solicitor

Date of Hearing:                                   16 July 2002

Date of Judgment:                                 16 July 2002