Al Ferdous v Minister for Immigration - [2010] FMCA 824

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AL FERDOUS v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 824

MIGRATION – Review of decision of Refugee Review Tribunal – no failure pursuant to s.359A – Condition 8104 does not require an “averaging out” of work periods – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.29, 116, 119, 120, 359A, 359AA
Migration Regulations 1994 (Cth), reg.2.43, Sch.8

Braun v Minister for Immigration Local Government and Ethnic Affairs (1991) 33 FCR 152
Kim v Witton (1995) 59 FCR 258
Dib v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 489
Minister for Immigration, Local Government and Ethnic Affairs v Montero (1991) 24 ALD 443
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248
SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46
Islam v Minister for Immigration & Citizenship [2007] FCAFC 66
Hossain v Minister for Immigration & Citizenship [2007] FCAFC 67

Applicant:

FARUK AL FERDOUS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1759 of 2010

Judgment of:

Nicholls FM

Hearing date:

21 October 2010

Date of Last Submission:

26 October 2010

Delivered at:

Sydney

Delivered on:

29 October 2010

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondents:

Mr G Johnson SC

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application made on 12 August 2010 is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $6,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1759 of 2010

FARUK AL FERDOUS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This application was made on 12 August 2010 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 21 July 2010, which affirmed an earlier decision by a delegate of the respondent Minister to cancel a Vocational Education and Training Sector visa held by Mr Al Ferdous.

Background

The relevant background is as follows. Mr Al Ferdous is a Bangladeshi national who came to Australia in June 2006 as the holder of a student visa. He appears to have been the spouse of a person who came to Australia to study. The visa which was the subject of cancellation and review was issued to him on 6 November 2009, while he was in Australia.
Relevantly, a condition attaching to this visa was that Mr Al Ferdous was not to: “… engage in work for more than 20 hours a week” while he was in Australia (Condition 8104(1) of Schedule 8 to the Migration Regulations 1994 (Cth) (“the Regulations) as it was at the relevant time).
Following receipt of an allegation that he was working as a taxi driver far in excess of this limit, Mr Al Ferdous was issued with a Notice of Intention to Consider Cancellation (“the Notice”) of his visa on 19 March 2010 (Court Book – “CB” –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 824
Decision Date

CaseChat Overview and Summary

In this matter, the Federal Magistrates Court of Australia reviewed the decision of the Migration Review Tribunal (the Tribunal) which affirmed the decision of the Minister for Immigration to cancel a Vocational Education and Training Sector visa held by Mr Al Ferdous. The Tribunal had found that Mr Al Ferdous had breached a condition of his visa by working in excess of 20 hours for a week in February 2010, and as a result, the visa was cancelled. The applicant's grounds of appeal were that the Tribunal had erred in considering the information used in making the decision, failed to consider the applicant's situation and circumstances, and failed to consider the applicant's real state of affairs concerning his exceeding work limit.

The court found that the Tribunal had not erred in considering the information used in making the decision, as the Tribunal had addressed the giving of the Notice and found that the delegate had given the applicant sufficient information to understand and respond to the Notice. Furthermore, the court found that the Tribunal had considered the circumstances raised by the applicant and did not accept that this altered the nature of the activity. The court held that once the Tribunal had determined that Mr Al Ferdous had not complied with Condition 8104, the operation of s.116(3) of the Act, and reg.2.43(2)(b) of the Migration Regulations 1994 (Cth), removed any discretion not to cancel the visa from the Tribunal.

In conclusion, the court found that the application did not disclose any reasonable prospects of success, as the grounds of the application and the written submissions in support did not reveal any jurisdictional error in the Tribunal's decision. Therefore, the application was dismissed, and the applicant was ordered to pay the first respondent's costs set in the amount of $6,500.

Orders