Case: Gurung v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 772
Outcome: considered
On appeal, the appellant alleged a number of jurisdictional errors based on the purported practice of RMIT not to comment on whether results were satisfactory or not. The appellant contended that the Tribunal had been informed that RMIT had a policy of providing academic results without comment as to whether those results were satisfactory or not. In light of that policy, the appellant submitted that strict compliance with condition 8202 was not possible and it was open to the Tribunal to make its own finding as to whether the appellant had achieved substantial compliance with condition 8202: Gurung v Minister for Immigration &amp; Multicultural and Indigenous Affairs [2002] FCA 772 (' Gurung '). The appellant submitted that the Tribunal did not properly make its own finding about whether the appellant's results were satisfactory, but rather relied on the opinions of RMIT staff whose statements about the appellant's academic performance were contrary to RMIT's established procedures. 23 These circumstances were said by the appellant to give rise to jurisdictional error on two bases. First, the appellant submitted that the Tribunal had relied upon opinions expressed by staff members of RMIT as to whether or not the appellant's results in the years 2000 and 2001 were or were not satisfactory, knowing that the giving of such opinions was contrary to RMIT's established procedure. This was said to be a jurisdictional error in several ways, including denial of procedural fairness and reliance upon irrelevant material. 24 There is no substance in these contentions, essentially for the reasons given by Hartnett FM. The basis for the contention that RMIT had an established procedure of not expressing opinions as to whether or not results were satisfactory seems to be flimsy, to say the least. It appears to be based entirely upon a telephone conversation between a Tribunal officer and an international student officer at RMIT. The suggestion is not consistent with formal advices sent to the Tribunal by the head of the relevant department at RMIT. But in any event, whatever the practice of RMIT might be, condition 8202 requires that the visa holder achieve an academic result that is certified by the education provider to be at least satisfactory. There was no such certificate. 25 The second alleged jurisdictional error is said to be based upon a misapplication of Gurung . In Gurung , Tamberlin J stated at [14]: 'Condition 8202(d) requires that the holder of the visa achieve an academic result that is certified by the education provider to be at least satisfactory... for a course that runs for at least a semester, for each term or semester of that course. In the present case there was no such certification and in making its finding, the Tribunal has not usurped or encroached upon the province of the educational institution. On its face, it was clearly open for the Tribunal to make a finding that the academic performance of the applicant was not satisfactory having regard to his high failure rate.' 26 At the hearing, counsel for the appellant sought to argue that Gurung stands for the proposition that, in the absence of certification of academic results from the education provider, the Tribunal should have made its own finding of substantial compliance with condition 8202 having regard to the applicant's failure rates as a percentage of the number of subjects for which the appellant sat. Counsel asserted that in 2001 the appellant passed five out of the six subjects for which he sat, which was said to be a failure rate of 16.6 per cent. Counsel then submitted that this failure rate was better than the appellant's failure rate in the first semester of 2002 (26.3 per cent), for which period RMIT certified that the appellant had achieved a satisfactory result. On the basis of these calculations, it was submitted that RMIT's statements concerning the appellant's academic results were internally inconsistent, and that the Tribunal had misdirected itself by relying on those statements. 27 The factual basis for these submissions appears to be entirely misconceived. The failure rates calculated by counsel ignore the subjects where the appellant did not sit the examination, but did not withdraw. As the Tribunal rightly found, these subjects must be taken into account in considering whether the appellant achieved a satisfactory result. The Tribunal correctly found that the appellant only achieved seven passes/exemptions out of the 17 subjects that he undertook during the 2001 academic year. Those 17 subjects comprised the five passed, one failed, nine for which the appellant did not sit, and two exemptions. 28 The next step in the appellant's submissions is also misconceived. Counsel for the appellant contended that in considering the question whether there had been substantial compliance with condition 8202, the decision in Gurung requires that the Tribunal confine itself to an examination of the appellant's academic results rather than an assessment of the appellant's academic progress. In my opinion, this is a misreading of Gurung : Tamberlin J in that case held that it was open to the Tribunal to find that the applicant had not substantially complied with condition 8202, having regard to the applicant's high failure rate. His Honour did not suggest that the Tribunal must have regard solely to the applicant's failure rate, expressed as a percentage of the number of subjects for which the appellant sat, in assessing whether there has been substantial compliance with condition 8202: see Kim v Witton (1995) 59 FCR 258. RMIT did not certify that the appellant's results were at least satisfactory. As Hartnett FM stated, there was no certificate provided and nor should there have been having regard to the evidence of the appellant's academic results. There was ample evidence of the appellant's poor academic performance in the present case, and of RMIT's opinion that the appellant's results were unsatisfactory.