Ahmad, Maqsood v Minister for Immigration and Multicultural Affairs

[1998] FCA 316

FEDERAL COURT OF AUSTRALIA

CITIZENSHIP and MIGRATION - entry permit - review of decision of Immigration Review Tribunal - whether application disclosed reasonable cause - whether applicant fulfilled relevant criteria for grant of Class 818 entry permit at time of application - whether such criteria are mandatory

Migration Act 1958 s 33, 34 (as at 24 March 1994)
Migration Act 1958 s 476 (as at 2 April 1998)

Qalovi v Minister for Immigration and Ethnic Affairs (1994) 50 FCR 301 Appl
Tuiqilai v Minister for Immigration and Ethnic Affairs (1993) 47 FCR 287 Appl
Ul-Islam v Minister for Immigration and Ethnic Affairs (1996) 65 FCR 140 Appl

Ahmad Maqsood v Minister of Immigration and Multicultural Affairs
QG 147 of 1997

Kiefel J
Brisbane
2 April 1998

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 147 of 1997

BETWEEN:	AHMAD MAQSOOD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		KIEFEL J
DATE OF ORDER:		2 APRIL 1998
WHERE MADE:		BRISBANE

THE COURT ORDERS THAT:

1. The application for review of 30 September 1997 be dismissed.

2. The applicant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 147 of 1997

BETWEEN:	AHMAD MAQSOOD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	KIEFEL J
DATE:	2 APRIL 1998
PLACE:	BRISBANE

REASONS FOR JUDGMENT

The respondent, the Minister for Immigration and Multicultural Affairs, seeks an order that the application for an order of review of the decision made by the Immigration Review Tribunal (“IRT”) on 2 September 1997, affirming a decision refusing the grant of a Class 818 (Highly Qualified On-Shore Permanent) entry permit to Mr Maqsood, be dismissed as disclosing no reasonable cause.

Mr Maqsood commenced studies towards the degree of Master of Applied Science in Petroleum Geology and Geophysics at the University of Queensland in 1991.  He was at that time resident in Australia with temporary visas, which are no longer relevant.  Mr Maqsood was excluded from the course of studies by the University in February 1992 and was unsuccessful in his appeals through the University appeals’ process.  The decision to exclude him from further study was upheld by the Senate Appeals Committee in December 1992.  It was then the fact, and one which Mr Maqsood did not dispute, that he was not therefore enrolled in any course at a University for the 1993 year.  He was precluded from doing so.

Mr Maqsood’s complaint is with the University, which he says wrongfully excluded him.  He has approached the Ombudsman but nothing has been resolved in his favour to date.  He has recently commenced a Supreme Court action claiming damages for breach of contract.  That litigation forms the basis for a request by him for an adjournment of this application, on the basis that a finding that the University engaged in wrongful conduct in relation to its contractual obligations to him, is relevant to these proceedings.

The respondent Minister submits that it is only the fact of Mr Maqsood’s non-enrolment in 1993 which was relevant to the decision in question and that nothing which he has undertaken since then can alter that fact.

Mr Maqsood applied for the Class 818 visa on 24 March 1994.  The Regulations relevant to Mr Maqsood’s application were the Migration (1993) Regulations, which have since been superseded. Section 33(1) of the Migration Act 1958 current at that time provided for the making of regulations in connexion with entry permits and, by subsection (2), that a person was entitled to be granted an entry permit of a particular class if that person satisfied all the prescribed criteria in relation to that class. Section 34(4) provided that where it appeared to the Minister that the applicant was not entitled, under the regulations, to be granted an entry permit of the class concerned, the Minister “shall” refuse to grant such a permit. Section 34 obliged refusal where the requirements of the regulations were not met: see Qalovi v Minister for Immigration and Ethnic Affairs (1994) 50 FCR 301, 304; Tuiqilai v Minister for Immigration and Ethnic Affairs (1993) 47 FCR 287, 292; Ul-Islam v Minister for Immigration and Ethnic Affairs (1996) 65 FCR 140, 149. The Minister had no discretion in the matter.

With respect to the criteria to be satisfied at the time the application was made, it was necessary for Mr Maqsood to satisfy one of the following:

-that he was enrolled in a post graduate course in Australia during the 1993 academic year;

-that he held a bachelor’s degree recognised in Australia and was enrolled in another such degree course in Australia as at 1 November 1993;

-that he completed requirements for an Australian bachelors’ or higher degree before 1 November 1993 and at that date was pursuing that as necessary for professional registration in his field; or

-that as at 1 November 1993 he held Australian postgraduate qualifications and was engaged in postgraduate research at an Australian University.

The only requirement which Mr Maqsood might have fulfilled was that which required him to be enrolled in another degree course in Australia as at 1 November 1993.  For the reason set out above that was not the case.

The respondent submits that, accordingly, Mr Maqsood could never have been granted the entry permit and that there is no discretion to permit a consideration of the matters which Mr Maqsood wishes to have taken into account, namely the wrongfulness of the conduct of the University that the requirements of the regulations should be waived in his case.

Mr Maqsood was unable to point to any basis for review other than the treatment he has received from the University.  It is clear that he feels wronged by the action taken.  That is not however to say that these matters were able to be taken into account by the decision maker here and the IRT in reviewing the decision.  That is the only question, it would seem to me.  In these circumstances there does not appear to be any reason for an adjournment.  Nothing which is found in the other proceedings can alter the facts as they existed at the time the application was made.

I should add, for completeness, that of the grounds listed for review in Mr Maqsood’s application, only one falls within the bounds for review set by s 476(1), namely that procedures required by the Act or regulations to be observed in connexion of the decision were not observed. That was not made out. The other matters referred to by Mr Maqsood are those excluded from review under s 476(3).

For these reasons the application must be dismissed.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel

Associate:

Dated:             2 April 1998

The Applicant:	In Person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 March 1998
Date of Judgment:	2 April 1998