Al Baker v Minister for Immigration

Case •

[2006] FMCA 1614

•

19 October 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AL BAKER v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1614
MIGRATION – Visa – student (Temporary) (class TU) visa – applicant did not satisfy clause 574.212 of schedule 2 of the Regulations – applicant is a citizen of Bangladesh who originally applied to study for the degree of Master of Information Technology – failure to comply with condition 8202 – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.359A, 474
Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407 followed
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed.
Applicant: MOHAMMAD ABDULLAH AL BAKER
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 1174 of 2006
Judgment of: Scarlett FM
Hearing date: 19 October 2006
Date of Last Submission: 19 October 2006
Delivered at: Sydney
Delivered on: 19 October 2006

REPRESENTATION

The Applicant: Appeared in person
Solicitors for the Respondents: Phillips Fox

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.

  2. The application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1174 of 2006

MOHAMMAD ABDULLAH AL BAKER

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

  1. This is an application for review of a decision of the Migration Review Tribunal.  The Tribunal affirmed the decision of a delegate of the Minister finding that the applicant was not entitled to the grant of a student temporary (Class TU) visa.

  2. The applicant is a national of Bangladesh who applied for a student temporary (Class TU) visa on 25th August 2004.  A delegate of the Minister refused to grant the visa on 12th May 2005.  The applicant had previously held a student visa.

  3. When the delegate refused to grant the application the applicant then sought a review by the Migration Review Tribunal.  The application was lodged on 8th June 2005 and the applicant nominated his migration advisor as his authorised representative.

  4. The Tribunal wrote to the applicant on 23rd November 2005 under the provisions of s.359A of the Migration Act inviting the applicant to comment in writing on information about his academic history.


    The academic history that was the subject of the letter consisted of two matters:

    (1)    that on 19th December 2002 the applicant was granted a subclass 574 visa to study towards a Master of Information Technology Professional Degree at the University of Southern Queensland; and

    (2)   That on 4th February 2005 the university certified that the applicant did not achieve a satisfactory academic result in semester one and two of 2003 and in semester one of 2004.

  5. The applicant's migration advisor wrote to the Tribunal in reply to the Tribunal's letter and made comments upon the information. 


    The advisor asked the Tribunal to consider a traumatic experience in the first semester of 2003 when the applicant learned that his mother was hospitalised and was subject to surgery.  As a result, the applicant became worried and depressed about his mother's health.

  6. The second piece of information which the migration advisor referred to the Tribunal was an alleged misrepresentation as to his visa condition from an officer of the university which contributed to the record of the applicant's unsatisfactory academic performance.

  7. The applicant said that at the end of the first semester he found that the course of Master of Information Technology was not suitable for him and what was taught was different from what he expected.  He was no longer interested in that course.  He claims that he was wrongly advised by an officer of the university and his visa condition prevented him from changing the course and he had to wait until he completed his Masters Degree or at least one year of it before he was allowed to apply for a change, even if he did not like it.

  8. This, it is submitted, was a misrepresentation, and as a result the applicant only commenced his studies for a Master of Professional Accounting in the first semester of 2004.  The agent asked the Tribunal to consider that the applicant's academic performance in the Master of Professional Accounting after that period of time was satisfactory and the applicant was expected to complete a graduate diploma by the end of November 2005.

  9. The applicant's advisors also wrote to the Tribunal on 18th December containing the applicant's further comments.  In particular, the applicant complained about the inadequacy of the facilities provided by the University of Southern Queensland and its Sydney campus as opposed to its main campus in Toowoomba.

  10. The Tribunal wrote to the applicant on 11th January 2006 inviting him to attend a hearing at 10.30 am on Tuesday 14th February. 


    The applicant acknowledged that invitation and attended the hearing and gave evidence. 

  11. The Tribunal made its decision on 30th March.  A copy of the Tribunal's decision appears at pages 93 through to 98 of the Court book. 


    The Tribunal considered the matters to be taken into account in deciding whether the applicant complied substantially with the visa condition set out, being the provisions of condition 8202 which applied on the 19th December 2002 being the date that the visa held or last held by the applicant was granted.

  12. The Tribunal set out its evidence and findings and noted that when the applicant first applied he held a sub-class 574 visa. The Tribunal also noted an official transcript from the University of Southern Queensland and a subsequent facsimile to the Department showing that the applicant did not achieve a satisfactory academic result in semesters one and two of 2003 and in semester one of 2004.

  13. The Tribunal noted in paragraph 15 at page 95 of the Court book the applicant’s complaints about his mother's hospitalisation and ill health and its effect on him, and about the applicant's claim that he was misled by the university.

  14. The Tribunal referred to the invitation to provide written comments and the applicant's reply to those comments on 18th December including his claim that he was not comfortable with the Master of Information Technology Degree and was told that he was not permitted to transfer, and continued the course but did not pass any subject of the course. 


    He then changed to a Master of Professional Accounting but complained that the facilities at the Sydney campus were not up to the mark.

  15. The Tribunal noted the applicant's oral evidence at the hearing on


    14th February including the fact that he knew that condition 8202 was attached to his visa.  The Tribunal said that the applicant knew that he had to achieve academic results that were at least satisfactory.  He did not pass any subjects in 2003 and the applicant's evidence is recorded as the fact that he chose the wrong course when he came to Australia.

  16. The Tribunal then went onto consider the nature of the breach of the condition which was that the applicant did not achieve academic results that were certified as being at least satisfactory for three semesters and that he only passed one subject in three semesters.  The Tribunal considered that to be a significant breach. 

  17. The Tribunal went on to consider the significance of the breach especially by reference of the purposes for which the visa or entry permit was granted.  The Tribunal found there was no evidence to suggest that the applicant had deliberately flouted the condition on his visa and went onto consider whether the applicant failed to appreciate that he was in breach of that condition, and what contributed to that failure and whether the Department had misled the applicant.

  18. The Tribunal accepted that the applicant's mother had been ill in hospital and accepted that that would have been very upsetting for him and would have contributed to his inability to pass the subjects he attempted in semester one.  The Tribunal was less sympathetic, however, about the applicant's claims about the inadequacy of the facilities of the Sydney campus of the University of Southern Queensland.  And went onto say in paragraph 27 on page 97:

    In those circumstances the Tribunal can accept that the visa applicant may have considered that the facilities were inadequate and the academic support was poor but the Tribunal is unable to make a finding that this is so.  Further the visa applicant continued to be enrolled at USC in semester one 2004 after 12 months had passed and after he claims he became dissatisfied with the USC.

  19. The Tribunal did comment that whilst the applicant claimed that he had chosen the wrong course this was unfortunate but it was the applicant's responsibility to choose a course that suited his abilities.

  20. The Tribunal found there was no evidence to suggest that the applicant had been misled by the Department.  The Tribunal also considered the applicant's evidence that if he were to leave Australia without a degree he would be disappointed.  He would have wasted money and three years of his life.  The Tribunal accepted that evidence.

  21. The conclusion that the Tribunal reached is set out in paragraph 30.  That the visa applicant did not comply substantially with condition 8202 between 19th December 2002 and 30th August 2004.  The Tribunal gave particular weight to its finding that the breach was a significant breach and that the breach was a breach of a condition closely associated with the purpose of the grant of a visa.

  22. The Tribunal recognised the applicant's worry about his mother's health in semester one of 2003 but did not make a finding that the facilities at the University of Southern Queensland were inadequate.  The Tribunal recognised that the applicant had been studying in Australia since semester one 2003 and had spent time and money doing so. 


    The Tribunal, whilst considering those matters, found that they did not persuade the Tribunal that he complied substantially with condition 8202 between 19th December 2002 and 30th August 2004.

  23. As a result, the Tribunal found that the applicant did not meet cl.574.212 and is not therefore entitled to the grant of sub-class 574 visa.  The Tribunal affirmed the decision under review.

  24. The applicant has sought a review of that decision through this Court.  In his amended application filed on 3rd July 2006 he seeks writs of certiorari and mandamus to quash the decision of the Tribunal and direct the Tribunal to re-hear and re-determine his application for review.  He also seeks a writ of prohibition directed to the first respondent minister, preventing her from acting upon or giving effect to the Tribunal decision.

  25. The applicant sets out three grounds for his application.  First, the Migration Review Tribunal constructively failed to exercise its jurisdiction under the Act in that the University of Southern Queensland misled the applicant about condition 8206 which attached to the applicant's visa.

  26. Second, that the Tribunal failed to take into consideration particular circumstances which contributed to the applicant's failure to comply with condition 8202 which attached to its visa.  Third, that the applicant failed to realise that the Department, at least in the guise of the Australian High Commission in Dhaka misled the applicant after the grant of the visa, first by not explaining or not providing any written document to the applicant as to what the conditions attached to the visa meant, and second that the Department did not explain to the applicant the consequences if he breached his visa's conditions.

  27. The third claim in part was not put to the Tribunal in that there is no evidence that the applicant put to the Tribunal that the Australian High Commission had in some way misled him.  The wider part of that claim, however, is that the applicant was misled by the Department in not being advised as to the significance of the conditions and the consequences of failure to comply.

  28. The applicant in his submissions submitted that the Tribunal did not consider that the University of Southern Queensland had misled him about the condition which attached to the visa by telling him that he was not allowed to change the course within one year.  He further complained that the Tribunal did not consider his particular circumstances which contributed to his inability to comply with condition 8202, particularly his trauma and depression on hearing of his mother's serious illness.

  29. The applicant claimed that the Tribunal did not consider those circumstances when assessing his review application.  The applicant also in his submission referred to having been misled by the Australian High Commission and by the Department generally and said that the Tribunal failed to take those points into consideration.  He drew the Court's attention to the fact that he had paid all the tuition fees during his course of Master of Information Technology and as a result he has lost money and it would be shameful for him to return to Bangladesh without a degree.

  30. For the respondent it is submitted that one of the criteria for the grant of a visa was 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 the subject, and that is cl.574.212.

  31. It was submitted that the Tribunal did consider all the circumstances raised by the applicant and that the matters raised in grounds one and two of the applicant's claims go to the merits of the applicant's claim or indicate his dissatisfaction with the Tribunal's factual findings.  As a result it is submitted that that is a claim for the merits review which is not open on judicial review.

  32. Ground three it is submitted raises a new claim of a failure by the Department to warn the applicant of the consequences of failing to meet his visa conditions and was not before the Tribunal.  In any event, the solicitor for the minister submits that the Tribunal found that there was no evidence that the applicant had been misled by the Department.

  33. I have considered the material before me.  The matters which the Tribunal considered related to the applicant's performance in semesters one and two of 2003 and semester one of 2004.  The fact that the applicant has subsequently been studying and has achieved better results was not a matter that the Tribunal could take into account.  Unfortunately, the applicant's results in those three semesters were unfortunate in that he clearly did not comply with the course requirements.  He failed most of his subjects.

  34. True it is that the applicant found that the original course, the Master of Information Technology, not a suitable course.  But applicants coming to Australia on a student visa should attempt to choose their course carefully and if the course does not meet their requirements should make appropriate arrangements to change their course.  I accept that the applicant may have been misled but the applicant has told the Court today that he in effect remained in the course but made no effort of complying with the requirements which basically are to achieve a satisfactory academic result.

  35. In my view, the Tribunal did take into account the compassionate circumstances relating to the applicant's mother's serious illness and made allowance for that.  That, however, related only to semester one of 2003 and not to the other two semesters.  The Tribunal was not satisfied that there was evidence that the university's campus facilities in Sydney as opposed to Toowoomba were inadequate. 

  36. The Tribunal did consider whether in some way the Department had misled the applicant.  In my view, the fact that that Department did not specifically explain that a substantial breach of condition 8202 would lead to the loss of the visa is not a ground that has been established. 


    It is a fact that the condition which was attached in effect provides to meet a course requirements.  It is not a vast stretch of the imagination to interpret that as meaning complying with the course by means of passing the various subjects.  By no stretch of the imagination in passing only one subject in the course could be regarded as complying with the requirements of the course.

  37. For the Department to have misled the applicant there would need to be some evidence of some provision of inappropriate advice or direction.  There is none.  In my view, it was open to the Tribunal to make a finding that there was no evidence that the Department had misled the applicant. 

  38. In respect of grounds one and two, in my view, the applicant is effectively challenging the Tribunal's factual findings.  There is evidence that the Tribunal did consider the matters raised by the applicant.  The fact that the Tribunal did not give sufficient weight to some of the matters raised is not a jurisdictional error.  It is only a challenge to a finding made by the Tribunal on factual grounds.  In my view, there was evidence available to the Tribunal for it to make the factual findings that it did.  Consequently, as set out by McHugh J in the High Court in Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407 and has also been set out by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 where there are factual findings and if the Tribunal makes those findings on the basis of the evidence judicial review is not open.

  39. In my view, no jurisdictional error has been made out. If there is no jurisdictional error the decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act. Consequently, certiorari mandamus and prohibition do not lie. The application will be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  26 October 2006

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