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MIGRATION - Review of Migration Review Tribunal decision affirming a delegate's decision to refuse to grant a student visa - whether applicant substantially complied with attendance requirement attached to previous visa - whether applicant unable to attend classes due to illness - credibility of documentary evidence of the applicant's state of health.

LAW REFORM - observations on the problem of delay in migration proceedings and asserted abuses of the appeal process.

Li v Minister for Immigration [2002] FMCA 252 (24 October 2002)

Li v Minister for Immigration [2002] FMCA 252 (24 October 2002)
Last Updated: 6 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION
[2002] FMCA 252



MIGRATION - Review of Migration Review Tribunal decision affirming a delegate's decision to refuse to grant a student visa - whether applicant substantially complied with attendance requirement attached to previous visa - whether applicant unable to attend classes due to illness - credibility of documentary evidence of the applicant's state of health.

LAW REFORM - observations on the problem of delay in migration proceedings and asserted abuses of the appeal process.



Applicant:
DI LI



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ542 of 2002



Delivered on:


24 October 2002



Delivered at:


Sydney



Hearing Date:


24 October 2002



Judgment of:


Driver FM



REPRESENTATION

Solicitors for the Applicant:


Mr R Turner

Yandell Wright Stell



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed at $4,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ542 of 2002

DI LI


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This ex tempore judgment relates to an application to review a decision of the Migration Review Tribunal ("the MRT") made on 3 July 2002. The MRT affirmed a delegate's decision to refuse to grant to the applicant a Student (Temporary) (Class TU) visa. The single ground of the application as set out in the original application filed on 16 July 2002 in this Court is very general indeed, although supported by an affidavit filed by the applicant's legal representative the same day.

2. The grounds referred to in that affidavit are that the MRT applied the wrong test when asking itself if the applicant had met the requirements of a course in which he was enrolled; secondly, that the MRT had failed therefore to carry out its statutory duty; and, thirdly, that the decision was therefore not made under an enactment and is null and void.

3. An amended application was filed on 19 July 2002 which advanced the same general ground as in the original application. The grounds of review were modified significantly by the stage of the filing of the applicant's outline of submissions on 18 October 2002. In those submissions the applicant asserts that the MRT failed to inquire into and make a considered finding in relation to matters it was required to form a view upon in determining whether the applicant was entitled to receive a student visa. In particular, Mr Turner for the applicant, submits that the MRT failed to properly inquire into the applicant's compliance with condition 8202 upon the student visa that he formerly held. He also asserts that the MRT failed to take proper account of the applicant's health.

4. The background facts are set out in the applicant's outline of submissions at paragraphs 1 to 6. Briefly, the applicant is a citizen of the People's Republic of China and was originally granted a student visa on 29 July 1999, entering Australia on 2 September 1999. The applicant applied for a further student visa on 9 August 2001. This was an application which required him to meet the terms of the Migration Regulations ("the Migration Regulations"). The application he made was rejected on 16 October 2001 and he applied for review of that decision to the MRT on 8 November 2001. The decision was affirmed by the MRT on 3 July 2002.

5. Mr Smith, who appeared for the Minister, filed written submissions on 22 October 2002. In those submissions he states that the decision of the MRT was a bona fide attempt to exercise the powers conferred on the MRT; that there was no actual bias in the exercise of power by the MRT and that the MRT made inquiries that were necessary for it to exercise its jurisdiction.

6. Mr Smith further submits that there was no breach of any inviolable limitation on the jurisdiction of the MRT and that in the light of the privative clause in s.474(1) of the Migration Act 1958 (Cth) ("the Migration Act") there is no basis upon which this Court can or should interfere with the MRT decision.

7. The MRT's decision, appearing from page 149 in the court book, sets out the relevant legislation and the relevant conditions upon the grant of a visa. At paragraph 8 the MRT correctly identifies that it must apply the then current wording of condition 8202 upon the student visa previously granted to the applicant in 1999.

8. Condition 8202 relevantly required that, in the case of a holder of a visa whose education provider keeps attendance records, the Minister be satisfied that the holder attends for at least 80 per cent of the contact hours scheduled:

i) for a course that runs for less than a semester - for the course; or

ii) for the course that runs for at least a semester - for each term and semester of the course.

This was a course of the second type.

9. At paragraph 9, the MRT refers to the decision of his Honour, Katz J in Baidakova v Minister for Immigration [1998] FCA 1436, where his Honour adopted a passage from a decision of his Honour, Sackville J in Kim v Witton, (1995) 59 FCR 258. In that case, Sackville J stated that in considering whether to refuse to grant a student visa in these circumstances the MRT should consider the relevant circumstances of the case. Without being exhaustive, these include the nature of the asserted 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.

10. The material presented to the MRT in this case established that the applicant had been absent from classes at Wollongong University for significant periods during 2000 and 2001. The applicant had obtained medical certificates from a Chinese practitioner, apparently in acupuncture, for many of those absences. At paragraphs 22 and 23 the MRT referred to these certificates.

11. The applicant also asserted that he returned to China for a short visit in January 2001 in order to obtain medical treatment for a back condition. This was an explanation for non-attendance during what the MRT ultimately found was the relevant period between 6 November 2000 and 23 February 2001. The MRT received evidence that this was a term at the Wollongong University College and that the applicant's attendance during this period was 36 per cent.

12. The applicant, through his legal advisers, took issue with the precise attendance figures presented by the University, but there was no dispute that the applicant did not meet the 80 per cent requirement in condition 8202 for several periods, including the term between 6 November 2000 and 23 February 2001. The material presented on behalf of the applicant went more to attempt to convince the MRT that there was justification for the applicant's non attendance which ought to lead the MRT to conclude that on a qualitative assessment there was substantial compliance with the condition.

13. The findings and reasons for the decision of the MRT are set out from paragraph 25 of its reasons. At paragraph 26 the presiding member states:

A criterion to be satisfied at the time of application for the grant of a subclass 573 visa is that "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". (Clause 573.212) At the time of decision the visa applicant must continue to satisfy the criterion in clause 573.212 (clause 573.226). The visa applicant last held a student visa from 29 July 1999 to 22 July 2001 which had condition 8202 attached. He arrived in Australia on 2 September 1999. The Tribunal has therefore considered whether he complied substantially with condition 8202 between

2 September 1999 and 22 July 2001.

14. It was common ground that the applicant had a satisfactory attendance record during 1999. The MRT went on to consider attendance records for the applicant at the University during 2000. It noted that attendance for some of those periods was below 80 per cent. The consideration then continued into 2001 where again, attendance for significant periods was below 80 per cent.

15. The presiding member referred to medical certificates from the Chinese Medicine Centre between 8 May 2000 and 20 October 2000 and the Australian Acupuncture Association Ltd, between 2 April 2001 and 6 August 2001. These medical certificates on their face stated that the applicant was unfit to attend classes for weeks at a time for various conditions, including a back condition.

16. The MRT could have considered whether the applicant substantially complied with the condition on his existing visa during several terms of his attendance at Wollongong University. It is not clear why the presiding member fixed in particular on the term which ran from 6 November 2000 to 23 February 2001. Nevertheless, the presiding member did fix upon that term and I am satisfied from a proper reading of the Migration Regulations that it was open to a decision-maker, under the Migration Act, to assess compliance by reference to a single term.

17. In relation to that term the applicant asserted that he travelled to China in order to seek treatment for his back condition. He produced a medical certificate from a hospital in China. The presiding member was dissatisfied with that evidence and found that there was no compelling or documentary evidence before the MRT that the visa applicant arranged travel in January and February 2001 in order to seek medical treatment. In paragraph 34 the presiding member went on to say that neither was there evidence that the applicant was unable to access or receive medical treatment in Australia.

18. It seems that the presiding member regarded this as highly material in assessing the qualitative question of whether the applicant had substantially complied with the attendance requirement on his visa. It is clear that the presiding member did not accept the explanation for the trip to China presented to the MRT by the applicant.

19. There were other possible explanations for that trip. The applicant was at the time a minor and he may have simply wanted to see his family. The applicant chose to travel during the period of celebration for the Chinese New Year and he may have wished to attend those celebrations. The applicant did not present any non medical explanation for the trip and the MRT, it seems, did not make any further inquiry.

20. At paragraph 36 of the MRT reasons the presiding member concludes that the visa applicant did not satisfy condition 8202. He noted that the MRT did not go on to make a finding concerning attendance in any subsequent, or indeed any prior, term. At paragraph 37 the presiding member states:

The Tribunal finds the visa applicant did not comply substantially with the conditions of the visa held at the time of the visa application. The visa applicant does not satisfy clause 573.212. Given the findings above, the MRT has no alternative but to affirm the decision under review.

21. Mr Turner, for the applicant, has submitted to me that although the MRT identified the correct legislative provisions, and although the MRT correctly identified the test to be applied in determining the question of substantial compliance there was, in reality, no proper application of that test. Mr Turner took me to s.349(4) of the Migration Act which provides that a decision must be authorised by the Migration Act and Regulations. He also took me to s.366A which provides limits on representation before the MRT. He took me to s.46 which sets out the requirements for a valid visa application and, importantly, to s.65 which provides that a decision-maker, in considering whether to grant or refuse a visa, must achieve a necessary degree of satisfaction to support that decision.

22. Mr Turner submits that the MRT erred in not making proper inquiries and not drawing a proper conclusion on the question of whether there had been substantial compliance with the relevant condition on the applicant's visa. He further submitted that the MRT should have considered whether, at a broad level, the applicant had complied substantially with all of the conditions on the visa. I reject that submission.

23. In my view, the proper approach is to consider whether there has been substantial compliance with the particular condition on the visa which is in issue. The condition on the visa in issue related in this case to the attendance requirement at the university. I also reject the proposition that a decision-maker must go beyond a single term of attendance. In my view, on a single reading of condition 8202, it is sufficient to consider whether there was substantial compliance with the condition by reference to a simple term. If there was not substantial compliance during a term then that is sufficient to support a decision to refuse to grant a visa.

24. It was open to the MRT to look broadly at the applicant's circumstances in order to determine whether during the particular term the applicant had complied substantially with the visa condition. The MRT could have considered the applicant's medical circumstances over the whole of the period where he asserted illness during 2000 and 2001. The MRT could have made inquiries whether there were other possible justifications for the applicant's absence from his studies. The question is whether in this case the MRT was obliged to do so.

25. The mischief which the imposition of the conditions on the student visa seeks to remedy is that there is a risk that persons coming to Australia on a student visa may not be bona fide students. That is why conditions are imposed requiring them to attend 80 per cent of classes and that is why they are not permitted to work. They are expected to be self supporting students who will attend classes during the period of their stay in Australia.

26. It is possible that a more thorough examination of the applicant's circumstances during 2000 and 2001 may have led the MRT to a better understanding on the question of substantial compliance during the relevant term. In my view, a fair minded decision-maker would properly have regarded as dubious the large number of medical certificates obtained by the applicant from the Chinese Medicine Centre and the Australian Acupuncture Association.

27. The applicant also was able to gather a substantial amount of money over periods when he was allegedly unfit to attend classes. He seems to have been able to save approximately $70,000. This might lead to an implication that the applicant was working, although the applicant asserted to the MRT that his funds came from family members in China who brought money to him periodically in Australia.

28. Although a more thorough examination of the circumstances may have led to a better decision, I am satisfied that the approach taken by the MRT was adequate. It was up to the applicant to satisfy the decision-maker, in this case the MRT, that he should receive a further visa. It was up to the applicant to satisfy the MRT that he had substantially complied with the attendance requirement on his then existing visa. The MRT is an inquisitorial body and it can and, in some circumstances, should make its own inquiries. However, the critical issue before the MRT in this case was whether there was an explanation for the applicant's absence from classes during the period from 6 November 2000 to 23 February 2001.

29. The primary explanation for absences during that period was the fact that the applicant had chosen to travel back to China. The applicant sought to explain that travel by reference to his back condition. The MRT did not accept that explanation and on the material before it was not bound to.

30. In my view, it was open to the presiding member to reject the explanation offered by the applicant, and on that basis, to conclude that there had not been substantial compliance by reference both to the quantitative question of the degree of attendance, and the qualitative question of the explanation for non attendance. It was the applicant who knew why he returned to China in January 2001 and it is unlikely that further inquiry by the MRT would have led to a more productive outcome on that question. There was in this case nothing compelling the MRT to make further inquiry.

31. The conclusion I draw is that there is no error of law in this decision of the MRT. The applicant has been unsuccessful in persuading me that I should grant the prerogative relief which he seeks. I do not consider it necessary in this case to consider the application of the privative clause because, in my view, even without the privative clause a reviewable error has not been established. Accordingly, while submissions have been made to me today on the application of the privative clause, in these circumstances, that question is not determinative of the outcome of these proceedings, and it is not necessary for me to make a ruling upon those submissions.

32. The outcome of these proceedings is that I will dismiss the application.

33. On the question of costs the Minister, through Mr Smith, has sought an order for costs. Mr Smith has submitted that the appropriate order would be for costs to be fixed in the amount $4,500. After consideration Mr Turner, for the applicant, does not oppose an order in those terms.

34. It seems to me that this was a case of somewhat greater than average complexity, requiring careful preparation of written submissions and reasonably lengthy presentation of submissions today. In those circumstances, I am persuaded that an order for costs in the sum of $4,500 is justified.

35. I will, therefore, order that the application be dismissed and that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,500.

36. I wish to add a few comments on a question of law reform. The decision of the MRT is subject to review and the applicant has exercised his rights of review. The applicant has a right of appeal from this Court to the Federal Court. That right of appeal, if exercised, will occupy further time. The rights of review in the courts from decisions of the MRT and the Refugee Review Tribunal have, at times, been subject to criticism as unnecessarily drawing out the stay of applicants in Australia when it ought to be sufficient to rely upon the decision of the administrative decision maker. The privative clause was introduced in an attempt to deal with the perceived problems in the exercise of rights of review before the courts.

37. I am told that the applicant still has approximately two years to go to complete his current course of study. It would seem unlikely that he would be able to extend the review process for the whole of that period. Nevertheless, in a circumstance such as this there is the potential for visa applicants to achieve their object, albeit in an expensive way, by exercising rights of review and by obtaining bridging visas for a significant period of time.

38. There has been much debate about the merits of the privative clause and whether that is a proper response to the perceived problem of applicants using appeal processes to extend their stay in Australia. Another approach which commends itself to me would be to provide for all appeals from decisions of the RRT and MRT to go to this Court and for an appeal from this Court to the Federal Court to be by leave only. That would continue to provide judicial supervision of decisions of the administrative tribunals involved in decision making under the Migration Act in order to provide an assurance of legality.

39. This Court is able to deal with matters coming before it relatively quickly. The Court has an objective of determining matters before it generally within six months. The introduction of a leave requirement for a further appeal would have the benefit of eliminating from the appeals process manifestly unmeritorious appeals and permitting appeals to go further that did have an issue of substance requiring consideration by a superior court.

40. In my view, the adoption of an appeals regime along those lines would go a long way to dealing with the perceived problems in the exercise of rights of review, regardless of what may be the ultimate outcome of the challenges to the privative clause currently being considered by the High Court.

Addendum

41. Since delivering these reasons for judgment ex tempore, I have read report no 92 of the Australian Law Reform Commission on the judicial power of the Commonwealth. In chapter 20 of that report the ALRC considers in detail the arguments for and against the introducing of a leave requirement for appeals from a single judge of the Federal Court to the Full Federal Court. In my view, the arguments in favour of a leave requirement are stronger in the case of appeals in the migration jurisdiction from this Court to the Federal Court. However, a leave requirement limited to appeals from this Court to the Federal Court would only be effective if this Court were the only forum for the review of MRT and Refugee Review Tribunal decisions at first instance.

42. At recommendation 20-4 the ALRC recommends that within five years of the publication of the ALRC report (ie by 2006) the Attorney-General should order a review on the question of leave to appeal within the Federal Court. In my view, the need for consideration of the issue in relation to migration appeals exists now.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date:
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