Case: Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436
Outcome: cited
The Tribunal took into account that strict compliance with cls 572.212 and 572.226 is not required and that substantial compliance is sufficient to meet the criteria: Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 (' Baidakova' ). The Tribunal considered whether there were any circumstances beyond the control of the appellant, such as absence or failure due to illness, and whether the appellant was able to provide evidence in support of these circumstances. This accorded with the guidelines in the Department of Immigration and Multicultural and Indigenous Affairs' Procedures Advice Manual. In the Tribunal's view, the appellant had failed to provide any genuine information of such circumstances beyond his control, or any genuine information regarding his unsatisfactory academic results or attendance. Rather, the Tribunal found that the appellant had presented and relied upon forged documents to explain or excuse his breach of condition 8202. The Tribunal also noted that the appellant's breach was significant. 16 On the basis of the relevant material before it and applying the test in Baidakova , the Tribunal found that at the time of his application, the appellant had not complied substantially with the conditions of his Student (Temporary) (Class TU) visa, subclass 560, during the period 15 August 2000 to 15 March 2002. Therefore the Tribunal determined that the appellant failed to meet the requirements of cl 572.212 and affirmed the delegate's decision not to grant a subclass 572 visa. 17 The appellant applied to the Federal Magistrates Court for review of the Tribunal's decision on 17 February 2004. The application was dismissed by Hartnett FM on 17 August 2005. His Honour found that the Tribunal's reasons disclosed no error or law or principle and that there had been no breach of natural justice or unfairness in relation to the way in which the Tribunal had conducted its proceedings. 18 In the Federal Magistrates Court, the appellant contended that the Tribunal had ignored a relevant consideration, being the alleged practice that RMIT provided results without commenting upon whether they were satisfactory or not. Hartnett FM's reasons state that the appellant's contention appeared to be derived from a telephone conversation between a Tribunal officer and the international student officer at RMIT on 6 August 2003 in which the international student officer is alleged to have said: 'RMIT gives results but don't comment on whether or not they are satisfactory. She said that the Tribunal will need to work this out from his results.' 19 Hartnett FM went on to state: 'Whatever the practice of RMIT might be, and whatever the international student officer's understanding of that practice might have been, condition 8202 clearly requires that the visa holder: Achieves an academic result that is certified by the education provider to be at least satisfactory. In the absence of such a certificate there is not compliance with condition 8202, and subject to the possibility of substantial compliance, an applicant would not satisfy the requirements for a further visa. In any event it is clear that RMIT did not consider the applicant's results to be at least satisfactory. The applicant's Head of Department sent the Tribunal a facsimile on 13 December 2002, describing the academic results as "very poor" and "well short of satisfactory" for 2001. The international student officer herself when asked in writing, and presumably when RMIT's obligations were explained to her, responded that the applicant did not achieve a satisfactory result for the 2000 and 2001 academic years. Accordingly it cannot be said that the Tribunal ignored a relevant consideration. The applicant alleged the Tribunal made its own findings about whether the applicant's results were satisfactory. That is not what the Tribunal did. It found that RMIT had not certified the results to be at least satisfactory. There was no certificate provided and nor should there have been such a certificate based on the applicant's academic results.' 20 Hartnett FM noted that the appellant was advised by the Tribunal in correspondence of 16 January 2003 that information obtained by the Tribunal indicated that his attendance and academic results were unsatisfactory. The Tribunal gave the appellant an opportunity to submit further information and comments in relation to these matters. In the circumstances, Hartnett FM was not persuaded that there had been any breach of natural justice or unfairness in relation to the way the Tribunal conducted its proceedings.