FEDERAL COURT OF AUSTRALIA

Siddique v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1226

MIGRATION – Student visa application – application of Condition 8202 as amended by the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) – whether amended condition application retrospective – whether applicant satisfied academic standards criterion for grant of visa.

MIGRATION – Student visa application – privative clause decision – whether decision made in good faith – errors in reasoning do not per se demonstrate lack of good faith

Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth), ss 65, 31, 41(1), 116, 348, 474(1), 338

Migration Legislation Amendment (Overseas Students) Act 2000 (Cth)

Migration Regulations, reg 2.05, cl 560.213, cl 560.611, condition 8202

Nong v Minister for Immigration & Multicultural Affairs [2000] FCA 1575 - discussed

Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574 – referred to

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

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

Craig v The State of South Australia (1994-1995) 184 CLR 163 – referred to

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 – referred to

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

Minister for Immigration & Multicultural Affairs v Modi [2001] FCA 1656 – referred to

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

Alam v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 630 – referred to

Kim v Witton (1995) 59 FCR 258 - discussed

Peng v Minister for Immigration & Multicultural Affairs [2000] FCA 1672 - discussed

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 - applied

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

MOHAMMAD MAHMOOD SIDDIQUE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S.244 of 2001

MANSFIELD J

4 OCTOBER 2002

ADELAIDE

THE COURT ORDERS THAT:

1.                       The application is dismissed.

2.                       The applicant pay to the respondent costs of the application.

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

REASONS FOR JUDGMENT

introduction

1                     The applicant is a national of India, born on 26 June 1974.  On 26 April 1999 he successfully applied for a Student (Temporary) (Class TU) visa (Student visa) whilst in India.  He entered Australia on 8 September 1999 pursuant to the Student visa then granted to him (the first Student visa).  That visa expired on 15 March 2001.  On 15 March 2001 the applicant applied under the Migration Act 1958 (Cth) (the Act) for a further Student visa.  A delegate of the respondent refused that application on 14 May 2001.  On 27 November 2001 the Migration Review Tribunal (the Tribunal) affirmed the delegate’s decision.  This is an application under s 39B of the Judiciary Act 1903 (Cth) to quash the decision of the Tribunal given on 27 November 2001 so that the application of the applicant to the Tribunal may be re-determined according to law.  At present the applicant has been granted a bridging visa.

2                     The applicant has a Bachelor of Engineering Degree from Osmania University, Hyderabad, India.  Upon his arrival in Australia, he enrolled for a Masters Degree in Engineering at the University of South Australia, commencing in Semester 2, 1999.  He did not pass any subjects undertaken in that semester.  He also enrolled in Semesters 1 and 2 of 2000.  He did not complete Semester 1, 2000.  He did not pass any subjects undertaken in Semester 2, 2000.  He applied for enrolment again in Semester 1 of 2001 but that enrolment was not granted.  As his later application for a Student visa indicates, he nevertheless wished to re-apply for enrolment at the University of South Australia or elsewhere to pursue his proposed course of study.

the relevant provisions

3                     The class of the Student visa is prescribed under the Migration Regulations made in accordance with s 31(1) of the Act.  The Regulations prescribe criteria for the visa, as authorised by s 31(3) of the Act.  If the respondent, or on review the Tribunal, is not satisfied that the criteria prescribed by the Act or the Regulations have been satisfied, the decision maker is directed to refuse to grant the visa.  Subject to the other sub-clauses of s 65(1)(a), if the decision maker is satisfied that the criteria for the visa have been satisfied, the decision maker is required to grant the visa.

4                     One of the criteria to be satisfied at the time of the application for a Student visa is specified in cl 560.213 of Sch 2 to the Regulations.  It was the only criterion upon which the Tribunal based its decision.  It provides:

“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.”

Section 41(1) of the Act empowers regulations to be made that provide for visas or classes of visas to be subject to specified conditions.  Regulation 2.05 of the Regulations provides that the conditions applicable to particular sub-classes of visas are those set out in Sch 2 to the Regulations.  Relevantly, cl 560.611 of Sch 2 to the Regulations imposes the condition upon the Student visa that the applicant satisfies condition 8202.  Condition 8202 as it stood at the time the first Student visa was granted provided that:

“The holder must:

(a)               be enrolled in a registered course; and

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

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

(d)               comply with any requirement of the education provider in relation to payment of fees for the course.”

I will call this version of Condition 8202 “the former Condition 8202”.

5                     The Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) (the amending Act) relevantly came into force on 21 December 2000.  Section 3 amended the Act as set out in the applicable items in the Schedules.  Schedule 4, item 4, under the heading “Satisfactory Attendance and Performance by Students”, provided relevantly:

“(1)     This item applies to the following visas (and only those visas):

(a)               all student visas that are in effect when this item commences;

(b)               all student visas that are granted after this item commences but before 1 July 2001.

(2)          Condition 8202 of each visa to which this item applies is taken for all purposes to be as set out in subitem (3), instead of as set out in regulations made for the purposes of section 41 of the Migration Act 1958.

(3)          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; of

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

(4)          In this item:

student visa means a visa described in the Migration Regulations 1994 as a Student (Temporary) (Class TU) visa.

(5)       Other expressions used in subitem (3) that are defined in the Migration Regulations 1994 have the same meaning as those in regulations, as in force from time to time.

(6)       After this item commences, the Minister may cancel a visa under section 116 of the Migration Act 1958, on the ground that the Minister is satisfied that the condition set out in subitem (3) of this item has not been complied with, even if some or all of the non-compliance happened before this item commenced.”

I will call Condition 8202 as so prescribed “the amended Condition 8202”.

6                     Items 1 and 2 of Sch 4 insert additional provisions in s 116 of the Act.  Item 3 provides that the amendments made by items 1 and 2 apply in relation to all Student visas, whether granted before or after the commencement of item 3 (i.e. before or after 21 December 2000).

the tribunal’s reasons

7                     The Tribunal described the decision under review as being the delegate’s decision of 17 April 2001 refusing to grant to the applicant the first Student visa - for which he had applied on 26 April 1999.  That is plainly wrong.   The respondent agrees the Tribunal was in error in describing the decision under review in that way.  The first Student visa was granted.  It was the second application for a Student visa, made on 15 March 2001 when the first Student visa was about to expire, which the delegate refused, and it was that decision the Tribunal was required to review.

8                     Later in its reasons, under the heading “Evidence”, the Tribunal appears to have recognised that course of events and that it was to review the decision of 15 March 2001 refusing to grant to the applicant a second Student visa.

9                     After referring to the decision under review, the Tribunal referred to the applicable legislative and regulatory provisions and to the evidence.  It noted briefly the receipt of information from the applicant on 27 and 28 August 2001 and following the hearing held on 2 October 2001, as well as that provided in the application to the Tribunal.  It was satisfied the applicant had satisfied matters concerning his health and character, including the extent of his part-time work, which had attracted the adverse attention of the delegate.  It is not necessary to refer to those matters further.

10                  The Tribunal then identified the condition applicable to its consideration of the application for the Student visa made on 15 March 2001 as being condition 8202 as it stood at the time the first Student visa was granted, that is the former Condition 8202.  It appears not to have been aware of the effect of the amending Act.

11                  In its “Reasons” for its decision and its conclusion it is clear that the Tribunal considered it was to determine whether, at the time of its decision, the applicant had complied substantially with the former Condition 8202.

12                  The essence of the Tribunal’s reasoning, having identified that version of condition 8202 to address, is contained in the following passage:

“However, the real issue in contention for the Tribunal is his breach of condition 8202.  Evidence on file indicates that the visa applicant did not pay his fees and he has not responded to an invitation at the hearing to provide any additional evidence in this regard.  With regard to the issue of his academic performance, the Tribunal notes that the visa applicant did indeed apply to defer his studies in second semester 2000 on medical grounds.  However, his academic performance prior to this was not satisfactory as he failed in Semester 2 1999 and Semester 1, 2000.  In addition, there is no information concerning his attendance at the University.

The visa applicant has stated that his poor academic performance was due to family problems overseas and health problems.  The visa applicant has provided evidence of medical reports which indicate that he had intermittent health problems over the period November 1999 to November 2000 and was also being investigated in relation to inactive TB.  The visa applicant states that his health is now fine and that he will be able to resume his studies.

CONCLUSION

The visa applicant wishes to be given a second chance to undertake his studies at a different University.  However, he has not provided evidence of payment of fees and his academic performance was poor.  In addition, there is no information concerning his attendance at the University.

The Tribunal notes that the visa applicant has provided medical reports, which indicate that he had intermittent medical problems over a period of 12 months.  However, on the evidence before it, the Tribunal is not satisfied that there were circumstances reasonably beyond his control which satisfactorily explain his inability to cope with his studies and his breach of visa condition 8202.

On the basis of all the material before it, the Tribunal is not satisfied that the visa applicant is a genuine student and makes the following findings:

·         the visa applicant has clearly breached condition 8202 and was substantially in breach of this condition at the time of the delegate’s decision.  In the circumstances, he does not satisfy subclauses 560.213 and 560.227.”

Thus, it affirmed the decision of the delegate of the respondent not to grant the applicant a further Student visa.

the issues

13                  The Tribunal’s decision is acknowledged by the respondent to be defective or erroneous in significant respects.  The respondent contended that the Tribunal had misdirected itself in law by addressing whether the applicant satisfied the criterion specified in cl 560.211 of Sch 2 to the Regulations by reference to compliance with the former Condition 8202 , that is as it stood prior to its amendment and substitution by the amending Act, s 3 and Sch 4 item 4(3).  The respondent also accepted that the Tribunal was plainly wrong in its finding that:

“Evidence on file indicates that the visa applicant did not pay his fees [to the education provider] and he has not responded to an invitation at the hearing to provide any additional evidence in that regard.”

Insofar as the decision of the Tribunal was based upon the applicant having failed to attend at least 80% of the classes and tutorials scheduled for his course, the respondent also accepts that the finding of the Tribunal that ‘there is no information concerning his attendance at the university’ is a topic which the Tribunal has not properly addressed, as it has not considered whether the education provider maintained evidence of such records.  Although the respondent acknowledged those defects in the Tribunal’s process of reasoning, he nevertheless contended that the decision of the Tribunal was not reviewable by reason of s 474(1) of the Act:  the privative clause.

14                  The applicant appeared in person.  He provided extensive written submissions as well as oral submissions.  He also filed detailed supplementary written submissions on 31 July 2002 and 12 August 2002.  His contentions largely addressed factual findings made by the Tribunal.  In particular, I note his complaints that the Tribunal was wrong in concluding:

(1)               the evidence on the file indicated the applicant did not pay his fees,

(2)               the applicant had not responded to an invitation at the hearing to provide any additional evidence about the payment of his fees,

(3)               there were no circumstances reasonably beyond the applicant’s control which satisfactorily explain his inability to cope with his studies, and

(4)               there was no information concerning his attendance at the university.

As noted, the respondent agrees that the Tribunal erred, at least in respect of (1), (2) and (4) of those complaints.

15                  The applicant also appeared to suggest the Tribunal conducted the hearing on 2 October 2001 in a way which indicated it had a mind closed to the proper and impartial consideration of the review.

16                  The applicant presented a further detailed submission on 24 September 2002.  In part it referred to information about matters of concern to the delegate of the respondent, but which were not reasons for the Tribunal rejecting his application of 15 March 2001 for a Student visa.  It is not necessary to refer further to that material.

17                  The further material also included a document from the “Student Ombud” dated 23 September 2002 asserting that the Program Director of the School of Advanced Manufacturing and Mechanical Engineering that the applicant had applied for and been granted “Deferred Assessments” for three specified courses for Semester 2, 2000.  That document, assuming its accuracy, does not assist in establishing jurisdictional error on the part of the Tribunal so as to enliven the Court’s powers under s 39B of the Judiciary Act.  The application before the Court is not a rehearing on the merits.  To advance material at this point which might indicate that the Tribunal, had it received such material in the course of its review, might have reached a different factual conclusion, does not demonstrate that its decision was made outside its jurisdiction.  In this matter, it is by reference to the material before the Tribunal, its conduct of the review, and its reasons for its decision that any jurisdictional error may be exposed.

18                  The balance of the applicant’s further submission concerned contentions of law concerning the proper operation of s 474(1) of the Act, and to the effect that the decision of the Tribunal is not a privative clause decision as defined in s 474(2) of the Act.  I will address those contentions in my consideration of the application generally.

CONSIDERATION

19                  It is appropriate first to determine whether the former Condition 8202 or the amended Condition 8202 applied to the Tribunal’s review of the delegate’s decision.  I note the respondent’s suggestion that the amended Condition 8202 may be a consequence of the decision of Katz J in Nong v Minister for Immigration & Multicultural Affairs [2000] FCA 1575 which took the view that the attendance requirement prescribed in the former Condition 8202 was to be measured against attendance for the whole of the course being undertaken, rather than for particular years or semesters of the course.  See also per Conti J in Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574 at [6].

20                  In Gurung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 772, Tamberlin J was required to address that issue.  In that matter, coincidentally, the visa applicant also held a Student visa which expired on 15 March 2001, and his application for a new Student visa was unsuccessful.  The Tribunal determined whether he satisfied criterion 560.213 of Sch 2 to the Regulations by reference to the amended Condition 8202.  It was contended that it had erred in so doing.  Tamberlin J, having regard to item 4(1) of Sch 4 to the amending Act, but without referring to item 4(6), said at [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.”

21                  In Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498 (Kwan), Finkelstein J appears to have taken a different view.  Again, the Student visa expired on 15 March 2001 and the application before the Court concerned a Tribunal decision refusing to grant a further Student visa.  His Honour said at [7] that the visa applicant:

“had to show that he had complied substantially with the original condition 8202 while his visa was subject to that condition (that is until 21 December 2000), and thereafter he had to show that he had complied substantially with the new condition.  In substance, Mr Kwan was only required to meet the new condition for 10 days, namely from 5 March 2001, when the new academic year commenced, until 15 March 2001, when his previous visa expired.”

22                  His Honour found that the Tribunal had erred in assuming that the amended Condition 8202 applied to the visa in force until 15 March 2001 from the time of its grant.  His Honour rejected the contention, on behalf of the Minister, that the amended Condition 8202 had retrospective effect, so as to replace the former Condition 8202 as if it had never existed (at least in respect of a visa not expired by 21 December 2000).  His Honour’s reasons for so doing appear in the following passage at [9]:

“In the first place there is nothing in the language of the amending Act which would produce that result.  In the second place, I would not attribute to Parliament such a perverse intention unless I was compelled to do so by unambiguous language.  In my opinion not only is the language of the amending legislation not ambiguous in that sense, it is to the opposite effect.”

23                  In my view, the conclusion reached by Tamberlin J is the preferable one.

24                  Item 4(1) indicates that the amended Condition 8202, unlike the former Condition 8202, should apply separately to two categories of holders of Student visas.  Clause (2) of item 4 is also clear.  The amended Condition 8202 is to apply to all Student visas to which cl (1) refers.  It therefore indicated specific legislative attention to the application of the amending Act to those two categories of holders of Student visas.  It expressly says that the amended Condition 8202 applies both to Student visas in force on 21 December 2000 and to Student visas granted after that date and before 1 July 2001.  The scope of its application is, in my view, clearly expressed.

25                  I also consider it significant that the changes made by the amended Condition 8202 include rendering cumulative the requirements of attendance and performance whereas, previously, although the former Condition 8202 apparently expressed cumulative conditions, in reality the requirements of attendance and performance were alternative.  If a student attended 80% of scheduled classes as evidenced by records of attendance of the education provider or otherwise, academic performance did not need to be considered.  It was only if attendance could not be evidenced that academic results were required to be certified as satisfactory.  The amended Condition 8202 renders attendance and academic performance as cumulative mandatory requirements, but attendance requirements are imposed only where the education provider keeps attendance records, so that attendance may not be proved in another way (compare cl (d) of the former Condition 8202).  The intention is clear that the respondent may be entitled to cancel a Student visa under s 116 of the Act if the student has not maintained adequate attendance (if attendance records are maintained by the education provider) or has not performed to a satisfactory academic level, even if that non-performance relates to a period of time when an existing visa is in force and prior to 21 December 2000:  see the amended Condition 8202, cl 4(6).  In my view, the language of cl 4(6) is clear.  It ties to cl (1)(a) of item 4 which provides that the item applies to Student visas in force at 21 December 2000.  To that extent, item 4 contemplates that events prior to 21 December 2000 may entitle the Minister after 21 December 2000 to cancel a visa under s 116.

26                  By reason of cl 560.213 of Sch 2 to the Regulations, when considering whether to grant the Student visa, the Tribunal had to determine whether the applicant had substantially complied with the conditions to which the visa previously held by the applicant “is, or was, subject”.  Clearly, the first Student visa was subject to the mandatory academic performance test imposed by the amended Condition 8202(3)(d) from 21 December 2000, although (as Finkelstein J pointed out in Kwan), in respect of an application made on 15 March 2001 that would in practice be only in respect of a few days of the first semester of 2001 after the commencement of the academic year.  However, while it is clear that the condition imposed by the amended Condition 8202 would apply to consideration of the application for a Student visa, in relation to a former Student visa held by the visa applicant which had lapsed prior to 21 December 2000, its application could not operate in respect of past academic performance because cl 4.1 would exclude consideration of the amended Condition 8202 in relation to that former Student visa.  Great care should be taken before accepting that the amending Act should permit the termination of a Student visa for a failure to maintain academic performance to a satisfactory level, even though that was not a condition of the grant of the Student visa nor was it an express condition of the visa up to 21 December 2000.  In respect of applications for a Student visa under the Act after the commencement of the amending Act, the conditions which cl 560.213 imposes do not in fact operate retrospectively.  The amended Condition 8202, cl 3(d), imposes a level of past academic performance required to be eligible for the visa.  It does so by directing attention to whether the visa applicant complied with the academic performance measures which item 4 imposes on holders of Student visas at 21 December 2000.  It is nevertheless, in my view, a means of determining by reference to past academic performance whether the Student visa should be granted.  Although the amending Act and the amended Condition 8202, by item 4 cl 6, might have a retrospective operation in relation to the cancellation of a Student visa after 21 December 2000, I do not consider it has a retrospective operation in relation to consideration of an application for a Student visa made after 21 December 2000 and before 1 July 2001.

27                  Consequently, in my judgment, the Tribunal proceeded in error when it addressed the former Condition 8202 when considering cl 560.213 of Sch 2 to the Regulations.  It has not asked itself the right question or questions.  It could not have done so.  But for the provisions of s 474(1) of the Act, that would amount to jurisdictional error as described in Craig v The State of South Australia (1994-1995) 184 CLR 163 and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1.

28                  The specific complaints of the applicant about the Tribunal’s decision can shortly be dealt with.  The Tribunal concluded he did not meet the criteria specified in cl 560.213 and cl 560.227 (which focus attention upon the time of the application and the time of the decision respectively) because he had breached the former Condition 8202 applicable to the first Student visa.  It referred to the issues of payment of fees, academic performance, and attendance.

29                  The issue of the payment of fees is no longer a relevant condition imposed by the amended Condition 8202.  The Tribunal clearly inquired into the existence of a fact which it was not required to inquire into.  It based its decision, in part, upon its finding of fact on that topic.  It was wrong to do so.

30                  I also accept, as the applicant contended and the respondent acknowledged, that the Tribunal erred in concluding the applicant had provided no evidence of payment of fees.

31                  The Tribunal said the evidence on the file indicated that the applicant did not pay his fees, and it further noted that the applicant had not responded to an invitation at the hearing to provide any additional information on that topic.  There was some information on the file that the applicant had not paid his fees.  On 8 February 2001 an officer of the University of South Australia notified the Tribunal of certain matters, including that he had not fulfilled his requirement to pay outstanding fees.  On 12 April 2001, the same officer informed an officer of the respondent that the applicant was in debt to the university, and, as a consequence, could not be enrolled until he cleared the outstanding debt.  The delegate of the respondent appears to have acted on that information without referring it to the applicant for comment.  As required by s 359A of the Act, the Tribunal wrote to the applicant on 16 July 2001 with particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the delegate’s decision.  Amongst the information referred to was that the applicant “had not paid any school [sic] fees”, and later in that document “had not paid your university fees”.  On 27 August 2001 the applicant, by his migration agent, responded that he had paid $6500 for fees for 1999 and $3000 for fees for 2000.  The Tribunal conducted a hearing on 2 October 2001.  The Tribunal in its recital of the hearing records that the applicant claimed to have paid those fees, and had evidence of receipts which he proposed to forward to the Tribunal.  It said:

“The visa applicant claims that he paid $6000 on 4 May 1999 for his fees for Semester 2 and a further $3000 for Semester 1 2000.  He stated that he has evidence of these receipts and will forward them to the Tribunal.  The visa applicant said that he did not pay any fees for Semester 2 2000 and that he was not permitted in Semester 2001 for non-payment of fees.”

Later in its reasons, the Tribunal referred to having received a letter from the applicant’s migration agent, which is dated 8 October 2001, enclosing additional information which the Tribunal listed as including “overseas health cover for the visa applicant dated 3 September 2001 for 1999 and Semester 2, 2000”.  In fact, the material submitted to the Tribunal included evidence of him having paid his overseas health cover by a receipt from the University of South Australia dated 3 September 2001, and it included two further pages of receipts headed “Tuition Paid Fees” confirming payment of $6000 on 4 May 1999 apparently for Semester 2 of 1999 and $3000 on 4 September 2000 apparently for Semester 2 of 2000.  Each of those receipts is dated 3 September 2001 by the University of South Australia.  The Tribunal was therefore wrong to observe that the applicant did not respond to the invitation at the hearing to provide any additional evidence on the topic.  It was wrong to say that he had not provided evidence of payment of fees.  It overlooked or ignored the material he submitted.  Its description of the “overseas health cover document” clearly demonstrates that it has elided its description of those three documents.  The overseas health cover certificate refers to that payment having been made for the year 1999, and the Tribunal has simply not looked carefully enough at the other two documents certifying payment of tuition fees.  One cannot help but suspect that its inattention to such detail might indicate that it was not attending to its functions with an appropriate degree of responsibility.

32                  Counsel for the respondent acknowledged that there was no information before the Tribunal to indicate that the University of South Australia maintained records of attendance of students attending or undertaking courses towards the Degree of Master of Engineering.  Nor was there any other evidence to demonstrate one way or another the applicant’s attendance at any classes and tutorials scheduled for that course.  Consequently, cl 3(c) of the amended Condition 8202 was not enlivened.  The Tribunal erred, in my view, in regarding the issue of the applicant’s attendance at classes or tutorials as a reason for concluding he did not meet the criteria specified in cl 560.213 and cl 560.227 of the Regulations.

33                  The third reason upon why the Tribunal found the applicant had not satisfied the former Condition 8202 concerned his academic performance.  The former Condition 8202 required academic performance (if it became relevant) to be “certified by the education provider to be at least satisfactory”.  A similar expression is contained in the amended Condition 8202 in cl 3(d).  It was therefore appropriate for the Tribunal to address that question.  The Tribunal based its decision on the applicant’s academic performance in Semester 2, 1999 and Semester 1, 2000.  It was not satisfied that the applicant’s poor academic performance in those semesters was due to circumstances reasonably beyond his control and which satisfactorily explained his inability to cope with his studies.  Consequently, the Tribunal was not satisfied the applicant is “a genuine student”.

34                  There is no earlier discussion of the expression “genuine student”.  In context, I take the Tribunal to be doing no more than using a shorthand expression for its view that the applicant had not satisfied it that he had achieved an academic result certified by the education provider to be satisfactory.  To do otherwise, would be to approach its reasons with too critical an eye for error:  cf Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.  It is unlikely the Tribunal was addressing the criterion in cl 560.224 of the Regulations that the applicant be “a genuine applicant for entry and stay as a student” as it has not otherwise referred to that criterion.

35                  The measure of whether there has been substantial compliance (see cl 560.213 of the Regulations) with the amended Condition 8202, in particular with the conditions imposed upon the holder of an earlier Student visa, is one to be determined in all the circumstances of the case:  see e.g. Minister for Immigration & Multicultural Affairs v Modi [2001] FCA 1656 (Black CJ, Drummond and RD Nicholson JJ); Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578 (Gray J) and Alam v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 630 (Merkel J).  In Kim v Witton (1995) 59 FCR 258 at 271 per Sackville J the issue of substantial compliance was addressed in the context of a tourist visa.  It is relevant to inquire into the reasons why in fact a condition was not complied with, including circumstances explaining why compliance might not have fully occurred.  In Peng v Minister for Immigration & Multicultural Affairs [2000] FCA 1672, Hely J remitted to the Tribunal a decision concerning a Student visa because the decision maker had failed to take into account the visa applicant’s explanation for not having complied with the applicable condition.

36                  The Tribunal in this matter is not shown to have erred in law in addressing the question of substantial compliance with the condition that the applicant’s academic performance be certified by the education provider to be at least satisfactory.  There was no such certification.  The Tribunal addressed the medical evidence adduced by the applicant to see if it explained satisfactorily his inability to cope with studies.  It described the evidence as indicating “intermittent medical problems”.  Its description of such evidence is a matter for the Tribunal.  Its view that the medical reports did not demonstrate “circumstances reasonably beyond” the applicant’s control is, in my view, a way of indicating that, despite such evidence, it did not think he had substantially complied with the condition.  Despite the applicant’s forceful contentions to the contrary, in my view, on this aspect of the case the Tribunal has not been shown to have erred in law or to have gone beyond a legitimate fact finding exercise for the purpose of determining whether the applicant had substantially complied with the conditions.

37                  As that reason for the Tribunal’s decision is, I think, independent of the other grounds upon which it reached its decision, I accordingly consider that the application must fail.  The applicant was required to demonstrate, both at the time of his application and at the time of the decision, that he had substantially complied with the conditions imposed by the amended Condition 8202.  The Tribunal concluded that he had not done so in respect of cl (3)(d) of the amended Condition 8202.  Although the Tribunal erroneously addressed the former Condition 8202, the question it predicated under subcl (3)(c) is in effect the same as that predicted by cl (3)(d) of the amended Condition 8202.  Its conclusion on that issue is not shown to have involved reviewable error.  Each of the requirements of the amended Condition 8202, if applicable, is a necessary condition for the grant of the Student visa; they are expressed cumulatively.  The failure of the applicant to satisfy that requirement meant that he did not satisfy the criterion expressed in cl 560.213 of Sch 2 to the Regulations.  It follows that the Tribunal, in accordance with s 65(1) of the Act, was required to affirm the decision of the delegate not to grant a further Student visa to the applicant.

38                  In addition, following the decision of the Full Court in NAAV v Minister for Immigration & Multicultural Affairs [2002] FCAFC 228 (Black CJ, Beaumont and von Doussa JJ, Wilcox and French JJ dissenting) I consider the application must fail.  The Court there decided that, once the Tribunal’s jurisdiction is enlivened by a valid application under s 412 of the Act, the manner of exercise of its authority and powers falls within the expanded area of authority and powers brought about by s 474(1) of the Act.  In effect, although the statutory and common law procedural obligations applicable to it should be complied with (per von Doussa J at [674]), its expanded jurisdiction means that failure to comply with those obligations does not result in it exceeding its jurisdiction.  The sort of jurisdictional error referred to in Craig and Yusuf is no longer appropriately the measure of jurisdictional error on the part of the Tribunal, because the effect of s 474(1) is to expand its jurisdiction:  per von Doussa J at [639].  The Tribunal no longer commits jurisdictional error by wrongly identifying the applicable law, or by wrongly applying the applicable law, or by asking itself the wrong question, or by not addressing all the claims of a visa applicant, or by failing to accord procedural fairness to a visa applicant:  per Beaumont J at [91]-[104], [113]-[114], [188], [229] and [274] per von Doussa J at [636]-[639], and [648]-[651].  Black CJ agreed generally with von Doussa J at [4], although his Honour disagreed with Beaumont J and von Doussa J in identifying what constituted “jurisdictional facts” upon the proper construction of the Act in two of the five matters under appeal.

39                  I consider the decision in NAAV applies with equal force to the present application seeking to set aside a decision of the Tribunal.  The provisions in Part 5 of the Act concerning review of decisions of the Tribunal relevantly parallel those in Part 7 of the Act concerning review of decisions by the Refugee Review Tribunal.  As the applicant acknowledges in his submission of 24 September 2002, the Court’s jurisdiction to review decisions of the Tribunal (and of the Refugee Review Tribunal) relevantly is only under s 39B of the Judiciary Act, recognised by s 475A:  see s 476 of the Act.  That is because the decision of the Tribunal is a privative clause decision made on a review by the Tribunal under s 475A(a) of the Act.

40                  The expression “privative clause decision” is defined in s 474(2) in the following terms:

“… privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).”

The Tribunal’s decision clearly falls within that description.  It is not a decision referred to in s 474(4), which identifies decisions under specified provisions of the Act which are not to be privative clause decisions, nor is it a decision referred to in s 474(5) which provides for regulations to specify particular decisions or classes of decisions which are not privative clause decisions.

41                  The decision in NAAV indicates, contrary to the applicant’s submission, that contravention of a provision of Dir 5 of Part 5 of the Act dealing with the conduct of reviews by the Tribunal does not give rise to jurisdictional error so as to entitle the Court to set aside the Tribunal’s decision in the face of s 474(1) of the Act.  Any reasons for that conclusion are expressed in my reference to NAAV in the preceding paragraphs of these reasons.  The decisions to which the applicant drew attention were either decisions on review of Tribunal decisions to which the amendments to Part 8 of the Act, including s 474, did not apply because the application to the Court was made before 2 October 2001 or were decisions made by a single judge of the Court on the scope of operation of s 474(1) which must now be understood in the light of the authoritative ruling of the Full Court in NAAV.

42                  Consequently, the applicant’s contentions that failure by the Tribunal to accord him procedural fairness, and to comply with s 359A(1) of the Act, bring his present application outside the scope of operation of s 474(1) must be rejected.  I am not persuaded that the errors in the Tribunal’s processes or reasons to which I have referred indicate that it failed to accord the applicant procedural fairness or that it failed to comply with s 359A(1) of the Act.  Its errors are of a different kind.  But, whatever characterisation of its errors, in my view they do not amount to jurisdictional error, having regard to the scope of the Tribunal’s jurisdiction in the light of s 474(1) of the Act.

43        Of course, s 474(1) of the Act must be read as being subject to the “Hickman principles”:  R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 per Dixon J.  His Honour said:

“But where the legislature confers authority subject to limitations, and at the same time enacts [a privative clause] it becomes a question of interpretation of the whole legislative instrument whether transgression of its limits, so long as  done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity.”

Thus, the effect of s 474(1) is to expand the jurisdiction of the Tribunal so that it commits jurisdictional error susceptible of judicial intervention only if:

(a)                the Tribunal failed to make “a bona fide attempt to exercise its power”;

(b)               the Tribunal’s decision does not relate to the subject matter of the legislation; or

(c)                the Tribunal’s decision is not “reasonably capable of reference to the power given to” the Tribunal.

44                  In this matter, the Tribunal’s decision clearly relates to the relevant legislative provisions.  It considered an application for a Student visa under the Act.  Its decision is also reasonably capable of reference to the power it has under s 338 of the Act.

45                  Despite the significant errors in the Tribunal’s reasons discussed above, I am not persuaded that its decision was not reached in a good faith attempt to fulfil its duties under the Act.  The wrongful identification of the applicable terms of Condition 8202 does not suggest any lack of good faith on its part.  The applicability of the amending Act is by no means straightforward.  Before getting to that point, the Tribunal had identified the relevant legislative and regulatory provisions for consideration of the application.  The significant provision of the former Condition 8202 and the amended Condition 8202 is in substance the same.  As I observed earlier in these reasons, in some respects the Tribunal’s attention to the material provided by or on behalf of the applicant may have been somewhat careless or superficial.  It is difficult otherwise to understand how it made certain of its findings.  But it is necessary for the applicant to demonstrate more than an error of fact on the part of the Tribunal.  An error of fact of itself does not demonstrate a lack of good faith.  I do not think the Tribunal’s reference to the relevant material is so capricious as to lead to a suspicion about its bona fides.  Indeed, the way it erroneously described the receipts as part of the “overseas health cover for the visa applicant dated 3 September 2001 for 1999 and Semester 2, 2000” suggests to my mind error through inattention rather than any lack of good faith.  That is not to say that inattention to evidence might not, with other circumstances, contribute to a conclusion of a lack of good faith.  But I do not consider it supports such a conclusion in this instance, having regard to the Tribunal’s consideration of all the applicant’s materials and to its conclusions.  Indeed, the Tribunal in its reasons accepted the applicant’s evidence explaining why other matters of concern to the delegate were not of concern to it.  I have also had regard to the transcript of the hearing.  I did not discern, in the transcript, matters which indicated by the questions that the Tribunal’s mind was closed to a consideration of the applicant’s claims, or that it conducted the hearing in any way which was unfair to the applicant or designed to produce or confirm a result which the Tribunal had decided upon.

46                  In my judgment, the applicant’s case falls well short of demonstrating a lack of good faith on the part of the Tribunal in conducting its review.

47                  Accordingly, I consider the application should be dismissed.  I so order.

48                  I see no reason why the normal rule as to costs should not apply.  I accordingly also order that the applicant pay to the respondent costs of the application.

Associate:

Dated:              2 October 2002