FEDERAL COURT OF AUSTRALIA

Fwati v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1478

Substantial compliance – student visa – whether there has been substantial compliance

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

Migration Regulations

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

LEONARD MUSONDA FWATI and ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and ORS

S 580 of 2003

SELWAY J

12 DECEMBER 2003

ADELAIDE

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant to pay the first respondent’s costs.

3.         No order made in relation to the costs of the second and third respondents.

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

REASONS FOR JUDGMENT

1                     On 4 June 2003, the Migration Review Tribunal (‘MRT’) confirmed the previous decision that the applicant is not entitled to the grant of a student visa.  The applicant has applied to this Court under s 39B of the Judiciary Act 1903 (Cth) for an order of prohibition directed to the first respondent (‘the Minister’) prohibiting him from giving effect to the decision of the MRT; an order of certiorari directed to the second respondent removing the decision of the MRT into this Court and quashing it; and an order for mandamus or an injunction directed to the third respondent requiring him to appoint another member of the Tribunal to reconsider the application for the MRT.  For the reasons given below that application is dismissed with costs.

2                     The applicant is a 50 year old citizen of Zambia.  He entered Australia on 20 July 1996 on a student visa.  Another student visa was granted on 18 November 1997.  That visa was valid until 15 March 2002.  On 14 March 2002, he applied for another student visa.  Included in each application were the applicant's wife and four children.

3                     In order to obtain that visa it was necessary for the applicant to satisfy Part 573.212 of Schedule 2 of the Migration Regulations that the applicant has ‘complied substantially’ with the conditions of his previous visa - in this case, his previous student visa for the period from 18 November 1997 to 15 March 2002.  Under the provisions of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth)those conditions included condition 8202 that the holder ‘is enrolled in a registered course’.

4                     The applicant had been studying various theology courses in Australia.  Between 1989 and 1991 the applicant had attended the Harvest Bible College in Victoria, but did not successfully complete the degree.  He returned to Australia in July 1996, in order to complete the degree, but again did not do so.  In January 1997, he transferred to a course at the Melbourne College of Divinity.  He completed the course and he was awarded a Graduate Diploma in Ministry on 29 August 2001.  On or about 13 December 2001, the applicant applied to enrol in another course at Tabor College in Victoria.  He was accepted on 25 January 2002.  The course commenced on 27 February 2002.

5                     On the face of it the applicant was not enrolled in a registered course from 7 August 2001 until at least 25 January 2002.  On the face of it this involved a breach of condition 8202 of the visa conditions.

6                     The visa application was considered by a delegate of the Minister.  The delegate rejected the application on 9 April 2002.  The basis for it was that the applicant was not a ‘genuine student’.  The delegate referred to the employment of the applicant at a church in Dandenong; the employment of his wife in a factory; his unsatisfactory academic results and that his failure to remain enrolled in a full time course.

7                     The applicant sought a review by the MRT of the delegate’s decision.  The Tribunal sought further information from the migration agent who was acting for the applicant.  The agent informed the Tribunal that the applicant had attended at two ‘counselling courses’ at the Melbourne College of Divinity in the period from August 2001 to January 2002, but was unable to provide any information about the duration of those courses.  The MRT invited the applicant to appear before it.  The applicant was unable to attend and requested that the review be decided in his absence. 

8                     The MRT found that it had no evidence relating to the applicant’s attendance record at the Melbourne College of Divinity.  Consequently, it was not prepared to make a finding (as the delegate had done) that the applicant had not attended the course as required by the conditions.  The MRT also found that the applicant’s academic history at the Melbourne College of Divinity was satisfactory.

9                     The issue that concerned the MRT was whether the applicant was enrolled in a registered course for the period from August 2001 to January 2002.  This is the issue that the MRT had raised on a number of occasions, both by telephone and in writing, with the applicant’s migration agent.  In relation to that issue the MRT said:

‘The visa applicant was required by condition 8202(b) to be enrolled in a registered course throughout the period of his previous visa. Despite several requests from the Tribunal, the visa applicant has failed to provide evidence that he was enrolled in a registered course after he completed the Graduate Diploma in Ministry at the Melbourne College of Divinity and before he was due to commence the Graduate Diploma in Christian Counselling at Tabor College. The Tribunal finds the agent’s response to its specific questions to be less than helpful. The Tribunal also notes that the Department did not cancel the visa applicant’s student visa (it expired and the Department refused to grant a further student visa), and the visa applicant’s bridging visa does not restrict his ability to study pending the outcome of the Tribunal’s review. In addition, it now appears that the visa applicant did not commence the Graduate Diploma in Christian Counselling at Tabor College in February 2002. He apparently undertook one or more unspecified intensive counselling courses that may or may not be registered courses. The Tribunal has also not been told whether the visa applicant’s December 2001 enrolment in the Graduate Diploma in Christian Counselling at Tabor College was cancelled when he did not commence classes in February 2002.  In any event, the Tribunal has not been provided with information upon which it can be satisfied that the visa applicant was enrolled in a registered course between August 2001 and December 2001, so he did not comply with condition 8202(b) throughout the period of his previous student visa.

There is no suggestion that the Department misled the visa applicant in relation to his compliance with condition 8202(b). Nor is there any evidence that the visa applicant deliberately flouted the condition. However, the Tribunal takes into account that the visa applicant has, despite several requests by the Tribunal failed to provide evidence that he was enrolled in a registered course between August 2001 and December 2001. He has, through his agent, provided vague, incomplete and confusing answers to the Tribunal’s specific enquiries, and he has elected not to attend a hearing at which the Tribunal would have attempted to clarify these matters. There is no suggestion that the visa applicant was prevented by illness or injury or any other circumstances beyond his control from being enrolled in a registered course throughout the entire period of his previous visa. Nor is there any evidence upon which the Tribunal can be satisfied that the visa applicant sought to comply with the condition, but made an innocent error or was thwarted from complying with the condition through no fault of his own. Having completed his Graduate Diploma in Ministry at the Melbourne College of Divinity in August 2001, he should have departed Australia, or lodged a further visa application to remain in Australia to undertake a further

course. He did neither. In all the circumstances, the Tribunal finds the breach of condition 8202(b) to be significant, and that the visa applicant appreciated the breach.

Taking all relevant matters into account, and applying the test in Baidakova, the guidelines in PAM 3 and the definition of substantial, the Tribunal finds that at the time of application the visa applicant did not comply substantially with condition 8202 of the visa previously held by him. Consequently the Tribunal finds that the visa applicant does not satisfy clause 573.212 at the time of application.’

10                  On 4 June 2003, the MRT affirmed the delegate’s decision not to grant the applicant a student visa. 

11                  Both parties accepted that the applicant can only succeed in this application if he can show some ‘jurisdictional error’ in the process, reasoning or decision of the MRT. 

12                  It is clear that a minor or technical breach of the conditions of the applicant’s previous visa would not have been sufficient to refuse the applicant a new visa.  The applicant was only required to have ‘substantially complied’ with the condition.  The MRT proceeded on the basis that the decision of Katz J in Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 correctly set out the issues requiring consideration as to whether there had been substantial compliance.  Both parties before me also accepted that it did so.  It is desirable to set out the relevant part of the reasoning of Katz J: 

‘Further, the Tribunal was not satisfied that Ms Baidakova had complied substantially with the ninety percent class attendance requirement. It was the Tribunal’s rejection of Ms Baidakova’s argument of substantial compliance with that requirement which was claimed before me to involve the error of law referred to above.

The argument before me on Ms Baidakova’s behalf relied particularly on the decision of Sackville J in Kim v Witton (1995) 59 FCR 258 and I should therefore refer to that decision before proceeding further. Kim was a case in which a decision to refuse an application for a temporary entry permit had been affirmed by the Tribunal because it was not satisfied that the applicant therefor had, as he was required to do as a condition of the grant thereof, ‘complied substantially’ with a condition in his previous temporary entry permit that he not work during its currency. In the course of dismissing the applicant’s application for review of the Tribunal’s decision, Sackville J discussed (at 270-72) the requirement of substantial compliance as it applied in the context of the case before him.

The essence of his Honour’s view on the substantial compliance issue was as follows,

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

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

Neither counsel disagreed with the statement of principle in Re Sekido, and I think it is broadly correct. In my opinion, in determining whether an applicant has complied substantially with a condition imposing a prohibition, the Tribunal should consider the relevant circumstances of the case. Without being exhaustive, these include:

·         the nature of the breach of condition;

·         the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;

·         whether or not the applicant deliberately flouted the condition; and

·         if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.

In general, it is a matter for the Tribunal to assess the weight to be accorded to these factors, having regard to the circumstances of the case.

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.”

I should mention also that, earlier in his reasons for judgment, Sackville J had (at 263) quoted from the Tribunal’s statement of findings and reasons in Kim. The passage from the Tribunal’s statement of findings and reasons quoted by Sackville J had used the terms “quantitative” and “qualitative” when discussing the notion of “substantial compliance”, saying,

“Whether a person can be regarded as having ‘substantially complied’ with a condition is not only a quantitative matter, or question of proportionality, but also a qualitative matter which may concern factors such as the bona fides of the Applicant, so that a person who has sought to comply with the condition but made an innocent error or was thwarted from complying with the condition through no fault of his or her own may be said to have ‘substantially complied’ with the condition as distinct from a person who knowingly disregards the condition.”

In his submissions before me, counsel for Ms Baidakova wrongly attributed to Sackville J, rather than to the Tribunal, the passage which I have just quoted from the Tribunal’s statement of findings and reasons in Kim. That led him to submit that the reasons of Sackville J in Kim had rendered it necessary for the Tribunal to take into account the “qualitative” aspect of the matter when determining the question whether Ms Baidakova had complied substantially with the course requirement of ninety percent class attendance. He then submitted that the Tribunal had fallen into error by not taking into account the “qualitative” aspect of the matter in two particular respects.

I understood counsel to be using the term “qualitative” in the present context in the same sense in which he mistakenly believed Sackville J to have used it; in other words, in using it, counsel was submitting in a shorthand way that it had been incumbent on the Tribunal to determine Ms Baidakova’s bona fides, so that if she had sought to attend ninety percent of her classes, but had failed to do so through innocent error, or if she had been thwarted from attending ninety percent of her classes through no fault of her own, then the Tribunal should have found that she had nonetheless complied substantially with the ninety percent class attendance requirement. I am content to proceed herein on the basis that that approach to the question of substantial compliance with the ninety percent class attendance requirement is correct.’

13                  I am also content to proceed on the basis that the reasoning of Katz J does set out the relevant issues and considerations.  However, this must be subject to at least one qualification.  The reasoning of Katz J, and the reasoning of Sackville J to which Katz J refers, were directed to a different statutory regime for review.  In particular, the statutory regime did not then limit the jurisdiction of this Court in relation to a ‘privative clause decision’.  To say, as did Sackville J, that the question of whether there has been substantial compliance ‘is a question of fact, to be determined having regard to the particular circumstances of the case’ is plainly correct.  However, this does not deny that the words "substantial compliance" have a legal meaning and that a misunderstanding of that meaning could involve a jurisdictional error.  Nor does it deny that the processes adopted by the MRT in determining the question of fact referred to by Sackville J could involve jurisdictional error.

14                  In this case the applicant argued that the MRT made three jurisdictional errors:

(a)    It failed to take into account that the applicant had not deliberately flouted the condition of the previous visa.  This is simply wrong.  It is clear that the MRT did take this into account.  What the MRT found was that, even though the applicant did not deliberately flout the condition, the applicant nevertheless had not ‘substantially complied’ with it.

(b)   It failed to take into account that the applicant had studied two counselling courses at the Melbourne College of Divinity between 21 August 2001 and January 2002.  Again this is wrong.  The applicant offered no information as to what he was doing during the relevant period.  The applicant did not even seek to appear before the MRT.  It was the MRT which sought information as to what the applicant had been doing during the relevant period.  Having sought the information it is clear that the MRT then considered it.  The problem for the MRT was whether the information should be treated as significant or not.  The conclusion reached by the MRT was that it should not be treated as establishing ‘substantial compliance’.  This was because of the failure of the migration agent to provide coherent and useful answers to the questions being put by the MRT in an attempt to ascertain what courses were being undertaken.  Given the inadequacy of those responses it was open to the MRT to reach the conclusion that the two counselling courses were of limited relevance to its inquiry.  This is particularly so when there was not even any information which suggested that the relevant courses were registered.

(c)    The MRT took into account an irrelevant consideration, namely that the migration agent’s response had been less than helpful.  This misunderstands the reason for the MRT making the criticism it that it does of that response.  Obviously enough if the MRT had made its decision because of some dislike of the applicant’s migration agent this may well have involved some jurisdictional error.  But in this case the criticism made by the Tribunal of the migration agent's response was only for the purpose of explaining why that response was not of any great benefit to the MRT in analysing whether there had been ‘substantial compliance’.

15                  The evidence before the MRT was that, during the period of his previous student visa, the applicant had not been enrolled in a registered course for a period of some five months.  The only explanation (and then only by inference) was that the applicant was waiting to apply for the Tabor College course.  However, the applicant’s visa required that he be enrolled in a registered course for the whole period during which he was in Australia on that visa.  There was some evidence that he undertook two counselling courses during the five month period.  However, there was no evidence of the period of those courses despite attempts by the MRT to obtain it from the applicant.  Nor was there any evidence that these courses were registered.  Against this background it was fairly open to the MRT to reach the conclusion that the applicant did not substantially comply with the conditions of his previous student visa.  Once that conclusion was reached it necessarily followed that the application for a new student visa had to be refused. 

16                  In my view there was no jurisdictional error in the processes, reasoning or decision of the MRT.  The application must be dismissed.  It is generally inappropriate for the MRT to appear and put submissions in these proceedings.  The second and third respondents did not do so in this case.  There can be no criticism of that.  However, it is inappropriate to make any order in relation to their costs.  On the other hand the Minister, who did appear and did make submissions, is clearly entitled to an order that the applicant pay her costs.     

Associate:

Dated:              12 December 2003