FEDERAL COURT OF AUSTRALIA

Bachalikura v Minister for Immigration and Border Protection [2016] FCA 175

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GLEESON J:

1    The appellant appeals from the decision of a judge of the Federal Circuit Court of Australia (“FCCA”) dismissing his application for judicial review of a decision of the Migration Review Tribunal (“Tribunal”): Bachalikura v Minister for Immigration & Anor [2015] FCCA 2583. The Tribunal’s decision was to affirm the decision of a delegate of the Minister for Immigration and Border Protection (“Minister”) not to grant the appellant a student visa.

Background facts

2    The appellant is a male citizen of India, aged 30 years. He held a student visa which was valid from 25 September 2009 to 27 April 2012. That visa was subject to condition 8202, which provided relevantly that:

8202

(1)    The holder … must meet the requirements of subclauses (2) and (3).

…

(3)    A holder meets the requirements of this subclause if neither of the following applies:

…

(b)    the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

(i)    section 19 of the Education Services for Overseas Students Act 2000; and

(ii)    standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

3    On 15 December 2009 Cornell Institute of Business and Technology Pty Ltd (“Cornell Institute”) certified the applicant:

… for course Certificate IV in Business, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007).

4    On 26 April 2012, the appellant applied for a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth). The relevant subclass for the visa was 572 – Student Vocational Education and Training Sector.

5    The criteria for the grant of a subclass 572 visa were set out in Pt 572 of Sch 2 of the Migration Regulations 1994 (Cth) (“Regulations”), and included cl 572.235, which provided:

If the application was made in Australia, the appellant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the appellant, and to any subsequent bridging visa.

6    On 26 October 2012, a delegate of the Minister refused the visa application on the basis that the appellant did not satisfy cl 572.235 because he had not complied substantially with the conditions of his last substantive visa and/or any subsequent bridging visa. The delegate also found that the appellant did not meet cl 572.223(2)(a).

7    On 19 November 2012, the appellant applied to the Tribunal for a review of the delegate’s decision to refuse the visa application.

8    The appellant appeared before the Tribunal on 21 February 2014 to give evidence and present arguments. He was represented on that occasion by his registered migration agent.

9    The Tribunal concluded that, as the appellant’s education provider had certified the appellant as not achieving satisfactory course attendance for the purposes of condition 8202(3), the appellant did not comply with condition 8202(3) of his previous substantive visa.

10    Having failed to comply with that condition, the appellant did not satisfy the criterion for the grant of a new student visa as specified in cl 572.235.

11     On 26 March 2014, the appellant filed an application in the FCCA for judicial review of the Tribunal’s decision. The grounds of review were:

1.    I was misled by my migration agent.

2.    I continued my studies in undertaking a Masters in IT at CQU and I did not intentionally mislead the College as I was advised by the migration agent that I did not have to tell the College.

3.    The Tribunal ignored my explanation and I ask that the decision be quashed.

12    The FCCA judge dismissed the application.

13    As to ground 1, the FCCA judge said that there was no evidence that the appellant was misled by his migration agent. This statement is not correct, because the appellant had relied on a transcript of the hearing before the Tribunal in which he said that he did not inform the Cornell Institute of his departure “because of the misguided information given by the migration agent”. However, the error has no significance because the FCCA judge continued by giving reasons on the assumptions that the appellant was “misinformed and hence misled by his migration agent in 2009”. Her Honour concluded that such events would not establish any jurisdictional error on the part of the Tribunal because the claimed conduct would not amount to a fraud on the Tribunal (at [29]).

14    Concerning ground 2, her Honour gave the following reasons:

23.    The difficulty for the Applicant is that on 15 December 2009 the education provider, Cornell, certified, for the purposes of condition 8202(3), the Applicant as not achieving satisfactory course attendance for s.19 of the Education Services for Overseas Students Act 2000 (Cth) and also for standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students.

24.    Having regard to the certification the Tribunal found that there had been failure to comply with condition 8202 because of the fact that the certification had issued. The Tribunal also found that condition 8202 was one to which the notion of substantial compliance had no application.

25.    No error is apparent in such reasoning. The Tribunal proceeded on the basis that the reasoning of the majority in Jayasekara [v Minister for Immigration & and Multicultural and Indigenous Affairs [2006] FCAFC 167, (2006) 156 FCR 199] applied to condition 8202(3) as amended and as applicable to this case (see in that respect Cai [v Minister for Immigration and Citizenship [2011] FMCA 922] and Singh [v Minister for Immigration & Anor [2011] FMCA 972]). There is no suggestion of any authority to the contrary. The requirement of an absence of relevant certification of unsatisfactory course progress or unsatisfactory course attendance by the education provider is one to which the concept of substantial compliance has no logical application. Either there is a certification or there is not. On this basis either condition 8202 is satisfied in the absence of a certification or not satisfied if there is a certification.

26.    The Tribunal correctly cited and applied the reasoning in Jayasekara as followed in Cai and Singh. I am not satisfied that either of the decisions of the Federal Magistrates Court applying such reasoning to condition 8202(3) in the form applicable in this case is clearly wrong. I would follow such reasoning in the interests of comity. In any event, I agree that there is no scope for the notion of substantial compliance with this particular aspect of condition 8202.

27.    In the circumstances, the Tribunal correctly proceeded on the basis that the Applicant’s evidence as to his personal circumstances and his explanation for not having informed Cornell of his change in courses was not relevant to its finding in relation to non-compliance with condition 8202. As was held in Singh v Minister for Immigration & Anor [2012] FMCA 821 at [33] the only factor required to be considered by the Tribunal in such circumstances was whether or not the Applicant was the subject of a certificate which, on its face, appeared valid. In the absence of any suggestion the certificate was invalid the Tribunal proceeded correctly in acting upon the certificate. There is nothing in the material before the Court or in the Applicant’s admissions that raises any issue as to the validity of the certification. The decision-maker (in this instance, the Tribunal) was not required to go behind the certificate.

15    In relation to ground 3, her Honour found that the Tribunal understood and summarised the appellant’s explanation for his failure to inform Cornell Institute and did not ignore the explanation in the sense of not having any regard to it at all (at [33]). Her Honour concluded that the Tribunal was aware of the explanation but decided that it was not relevant because of the certification.

Grounds of appeal

16    The grounds stated in the notice of appeal are:

1.    Her Honour Judge Barnes failed to take into account my oral submission supported by evidence from the Court book.

2.    I have not yet received the full judgment of Her Honour but I reserve my right to appear before the Federal Court and argue my case.

17    The appellant did not seek to file an amended notice of appeal.

Appellant’s submissions

18    The appellant did not file written submissions in support of the appeal.

19    At the hearing of the appeal, the appellant appeared for himself. The appellant submitted that there were no proper documents available to either the Tribunal or the FCCA to explain what had led him not to notify Cornell Institute of his departure from that college (being the misleading advice of the appellant’s migration agent). The submissions to the Tribunal were made by the migration agent by whom the appellant had been misled. The appellant transferred from Cornell Institute to Central Queensland University, and this was the reason for his failure to attend Cornell Institute.

Consideration

20    The task of this Court on appeal is to determine whether the judgment of the FCCA judge involved appellable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

21    The underlying difficulty for the appellant is that, to be granted another student visa, he was required to meet the relevant criteria for the visa, including the requirements detailed in cl 572.235. The certification by Cornell Institute meant the appellant failed to comply with condition 8202 (applicable to his first student visa) and so consequently failed to satisfy the cl 572.235 criterion necessary for the grant of the second student visa.

22    At [18] to [20] of the FCCA judge’s reasons, her Honour set out the following account of the appellant’s oral submissions:

18.    In oral submissions today the Applicant took the Court through the material in the Courtbook, and claimed that he had answered the Tribunal’s questions at the Tribunal hearing as openly and honestly as he could. He asserted that while he was not aware that a notification had been given to the Department of Immigration by Cornell, he was aware in 2009 that the college had certified him for unsatisfactory course attendance.

19.    The Applicant submitted that all he did wrong was not to notify Cornell. He explained that he left the Cornell course in circumstances where he was attending the Masters in IT course. Because of what his migration agent told him it was his understanding that he did not have to tell Cornell when he was going to a different college. He claimed his migration agent had misled him, that it was not his intention to breach his visa conditions and that when he left Cornell he was still studying, albeit in a different course.

20.    The Applicant submitted that while he was aware of visa conditions and understood that he had to be enrolled without a gap, in his view he had met this requirement as he was just enrolled in a different course. He had not notified the Department in 2009 that he was doing a different course.

23    There is nothing in the FCCA’s reasons for judgment which suggests that the FCCA judge did not take into account the appellant’s oral submissions, as summarised above. Those oral submissions did not lead to a favourable outcome for the appellant because they did not change the underlying problem, which was that the appellant did not satisfy cl 572.235.

24    The appellant’s oral submissions to this Court did not identify any particular submission that had not been taken into account by the FCCA judge. His submissions do not reveal any failure on the part of the FCCA judge to take into account the oral submissions made to her by the appellant. As to the submission that the appellant was represented at the Tribunal by the migration agent by whom the appellant claimed to have been misled, there was no evidence that the migration agent misled the Tribunal.

Conclusion

25    The FCCA judge did not make any appellable error. Accordingly, the appeal must be dismissed.

Associate:

Dated:    3 March 2016