FEDERAL COURT OF AUSTRALIA

Hasan v Minister for Immigration and Citizenship [2007] FCA 697

MOHAMMED MEHBUB HASAN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

NSD 311 OF 2007

MANSFIELD J

11 MAY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The Migration Review Tribunal be joined as second respondent.

2.                  The appeal be dismissed. 

3.                  The appellant must pay to the first respondent his costs of the appeal.

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

REASONS FOR JUDGMENT

1                     The appellant was granted a Student (Temporary) Class TU (Subclass 560) visa on 2 June 2000 to study a Batchelor of Information Technology degree at Central Queensland University (the 2000 visa).  That visa was valid until 15 March 2003.  When issued, it was subject (inter alia) to Condition 8202 which was relevantly in the following terms:

The holder

(b) must …(i)     attend at least 80% of the classes and tutorials scheduled for the course [in which enrolled], as evidenced by records of attendance of the education provider; or

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

2                     On 21 December 2000, that version of Condition 8202 was amended.  Item 4 of Sch 4 of the Migration Legislation Amendment (Overseas Student) Act 2000 (Cth) prescribed as follows:

4.         (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; or

(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 in those 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.

3                     As can be seen, in essence the conditions requiring attendance and certification of satisfactory academic performance were made cumulative rather than alternative.  The effect of subitem 4(1)(a) and (2) is that that special condition on its commencement applied to the applicant’s existing visa. 

4                     The significance of that amendment, in the present circumstances, arises from the appellant’s application for a further Student (Temporary) (Class TU) visa on 15 March 2003 (the 2003 visa application), following the grant or renewal of various student visas which he had been given from time to time, and most recently on 2 June 2000 following his arrival in Australia on 6 February 1996, culminating in the 2000 visa.  At the time of the 2000 visa, the applicant planned to study a Batchelor of Information Technology course at the Central Queensland University between 28 February 2000 and 31 December 2002, but his academic progress was a little slower than that.  On 6 March 2003, he transferred from that course to study a Batchelor of Multimedia Studies course at that University, projecting to end his study by December 2004.  Consequently, the relevant subclass for the 2003 visa application was Subclass 573 (Higher Education Sector).

5                     Regulation 573.212 of Sch 2 to the Migration Regulations 1994 (Cth) prescribes a criterion to be satisfied at the time of the decision in the following terms:

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. 

That directs attention to the conditions imposed on the 2000 visa.

6                     Information procured from Central Queensland University indicated that the applicant had unsatisfactory academic progress in the two academic terms or semesters of 2000 and 2001 and the first academic semester or term of 2002, but satisfactory academic progress for the second academic term or semester of 2002. 

7                     The delegate of the first respondent rejected the 2003 visa application because he was not satisfied that the applicant had complied substantially with the conditions of the 2000 visa, namely condition 8202(3)(d), because the appellant had not achieved at least a satisfactory academic result as certified by the education provider from 28 February 2000 to 30 June 2002.  As the criterion specified in Regulation 573.212 was not met, the visa was refused. 

8                     The appellant challenged that decision before the Migration Review Tribunal.  He was given a bridging visa until the final resolution of his application.  He has in fact on 12 November 2004 completed the requirements of the Batchelor of Multimedia Studies degree from Central Queensland University and has been conferred with that degree.  The appellant has, nevertheless, maintained his claim to be entitled to succeed on the 2003 visa application, presumably because it has significance to his capacity to continue to be eligible for a further student visa or for some different visa to permit him to remain in Australia.  If he did not wish to do so, having completed his tertiary degree in multimedia studies, he could of course now return to Bangladesh.

9                     The Tribunal affirmed the decision of the delegate of the respondent.

10                  There were two issues which it had to address.  The first was the appellant’s claim that the reason for his unsatisfactory academic results related to his personal circumstances:  the illness and subsequent death of his father in May 2000, and the ongoing health problems that his wife had been suffering.  The Tribunal noted that, despite that information, the education provider had nevertheless not certified that his academic results for five of the six semesters leading up to the time of the application was at least satisfactory.  In the light of that, the Tribunal concluded that Condition 8202(3)(d) was not satisfied and that therefore cl 573.212 itself was not satisfied.  In reaching that conclusion, the Tribunal regarded cl 573.212 as imposing the obligation of substantial compliance with the conditions severally in respect of each of the conditions applicable to the  2000 visa, rather than collectively looking at all the conditions applicable to that visa to see whether on balance there had been substantial compliance with (i.e. compliance with more than half or most of) those conditions.  Secondly, it had to decide whether to apply the terms of Condition 8202 as in force from 21 December 2000 to the evidence about the appellant’s academic performance over the whole of the period since the 2000 visa was granted.  It did so.  That aspect of its approach provided one of the avenues of attack upon its decision.

11                  The appellant challenged that decision in the Federal Magistrates Court, claiming that it had been induced by jurisdictional error.

12                  He claimed three jurisdictional errors on the part of the Tribunal:

(1)   that the Tribunal took into account the applicant’s academic progress for the autumn semester (February to June 2000) when much of that period fell outside the period of the 2000 visa – the Federal Magistrate followed the decision of Siopis J in Kang v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 788 at [29] where his Honour said:

The Regulations prescribe the means by which a visa holder is to satisfy the requirement of Condition 8202 in respect of academic performance.  It is by a visa holder obtaining a certificate from the education provider that the academic result is ‘at least satisfactory’ in respect of each term or semester as the case may be.  There is no qualification in the Regulations specifying the period of time that the visa holder was required to have held a specific visa prior to the end of the relevant term or semester.  Satisfaction of the visa condition simply requires the production of a certificate in relation to the academic performance for the term or semester in question and contemplates that the certificate will be issued at the end of the term or semester.  The means of fulfilling the requirement is sufficiently flexible to accommodate the case of a person who is a student for the whole of the semester or term but whose visa expires during the term or semester and is issued a new visa during that term.  There is no dispute in this case that the applicant was enrolled at the commencement of the semester in question and was a student for the whole of the semester.

(2)   that the Tribunal failed to take into account that in the period between February and June 2000 (the first semester of 2000) he had not received any warning from the University that his academic progress was unsatisfactory, and that the absence of such warning was relevant to whether he had substantially completed with Condition 8202 – the Federal Magistrate said simply that the Tribunal had not erred in concluding that there was a failure to comply with Condition 8202 on the basis of the information provided by the University.  In fact, it noted that the Tribunal, before issuing the certificate of unsatisfactory academic progress, had information as to the illness of the appellant’s wife and as to the illness and subsequent death of his father, but it had said that “these events do not explain the sustained failure to meet academic requirements from the autumn term of 2000”;

(3)   that the Tribunal had failed to have regard to the former terms of Condition 8202 in respect of the period between June and December 2000 when academic performance and attendance were alternative rather than cumulative requirements imposed by Condition 8202 – the Federal Magistrate rejected that submission on the basis of decisions of this Court, principally of the Full Court (Madgwick Gyles and Conti JJ) in Siddique v Minister for Immigration [2003] FCAFC 16.

13                  The Federal Magistrate also concluded on the basis of the Full Court decision in Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 167 at [11]-[15] that a failure to comply with Condition 8202 was demonstrated by the absence of certification from the education provider of satisfactory performance, whatever the reasons for that absence.  Personal considerations which might explain the level of academic performance were matters to be taken into account by the education provider rather than by the decision-maker in  the process of determining whether Condition 8202 was substantially complied with.

14                  The two contentions of the appellant on the appeal, notwithstanding somewhat loosely expressed grounds of appeal in the application, were expressed in his final written submissions.  He acknowledged that they had been prepared with assistance.  In essence, the first was that the Tribunal fell into jurisdictional error, and the Federal Magistrate had erred in failing to recognise jurisdictional error on the part of the Tribunal, in considering compliance with amended Condition 8202 for the period from June to December 2000 bearing in mind that amended Condition 8202 came into force only on 21 December 2000. 

15                  It was acknowledged that the obstacle confronting that contention was the Full Court decision in Siddique. 

16                  The second was that the Tribunal erred in addressing the question of substantial compliance with Condition 8202 by failing to balance his non-compliance with that condition against any compliance during the term of the previous visa so as to determine whether such compliance was substantial, and had therefore asked itself the wrong question or failed to take into account the relevant consideration.

17                  At one point, it appeared that the second contention included that cl 573.212 required the Tribunal to have regard to all the conditions imposed by the 2000 visa to determine whether all or any of them had not been complied with, and then to balance out the extent to which there had been compliance with them collectively rather than address compliance or substantial compliance with each of them individually.  When specifically asked, however, the appellant did not adopt that position although it may have been implied from his written submissions.  There is authority to the effect that Condition 573.212 and its analogues in other parts of Schedule 2 to the Regulations applies to each of the conditions imposed by a visa, so that there must be substantial compliance with each condition to satisfy the criterion for the grant of the visa under consideration:  see Peng v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 63 at 67, [16].  As I have said, however, that issue was not specifically raised on the appeal.  The second contention was that the overall academic performance should have been assessed.

18                  In my view, the appellant’s first contention must fail.  The issue was determined adversely to the appellant in Gurung v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 772 and in Siddique v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1226 at first instance and approved by the Full Court in Siddique v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 16.  I adopt and adhere to the reasons for the decision in Siddique at first instance, as approved by the Full Court.

19                  In any event, the appellant’s contention could not result in the decision of the Tribunal being different.  That is because, in respect of the first and the second semester of 2001 and the first semester of 2002, the appellant did not satisfy the then applicable requirements of Condition 8202(3)(d).  Subject to his second contention, there is no argument about that.  Consequently, even if (contrary to my view) the Tribunal had wrongly applied the terms of Condition 8202(3)(d) as in force from 21 December 2000 to the criterion in cl 573.212 of Sch 2 to the Regulations in respect of the period of the 2000 visa which preceded 21 December 2000, the appellant must nevertheless have been found not to have met that criterion for the period of the 2000 visa from 21 December 2000.  There would therefore be no utility in remitting the matter to the Tribunal to reconsider whether criterion 573.212 was satisfied in respect of the 2003 visa application.

20                  The second contention of the appellant must also be rejected.  The terms of Condition 8202(3)(d) as in force at the time the 2003 visa application was considered by the Tribunal are clear.  The appellant’s course ran over several semesters and there had to be a certification by the education provider that his academic results for each term or semester were at least satisfactory:  see Condition 8202(3)(d).  That clause directs attention to each term or semester separately.  It leaves no room for balancing one or more terms or semesters of satisfactory academic performance against terms or semesters of where certification of satisfactory academic performance is not given.  Nor, in the light of the Full Court decision in Jayasekara [2006] FCAFC 167, is there any scope for a contention that the appellant’s personal circumstances could be taken into account by the Tribunal in determining if that condition was satisfied; as that decision indicates, that was a matter for the education provider to consider.

21                  Accordingly, in my judgment, the appeal from the Federal Magistrate must be dismissed.  The appellant must pay to the first respondent his costs of the appeal.

Associate:

Dated:         11 May 2007