Hafeez v Minister for Immigration
[2005] FMCA 406
•9 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAFEEZ v MINISTER FOR IMMIGRATION | [2005] FMCA 406 |
| MIGRATION – Student visa cancelled for non-enrolment – no error shown. |
Judiciary Act 1908 (Cth), s.39B
Migration Act 1958 (Cth), s.116
Migration Regulations 1994 (Cth), m.2.432
Tian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 238
| Applicant: | MOHAMMED ABDUL HAFEEZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1419 of 2003 |
| Delivered on: | 9 February 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 9 February 2005 |
| Judgment of: | Phipps FM |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms Ferrari |
| Solicitors for the Respondent: | Australian Government Solicitor |
`
ORDERS
The application is dismissed.
The applicant pay the respondent's costs fixed at $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1419 of 2003
| MOHAMMED ABDUL HAFEEZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1908 (Cth) and the provisions of the Migration Act1958 (Cth) giving jurisdiction to this Court for prerogative writs in respect of a decision of the Migration Review Tribunal.
The applicant is an Indian citizen who arrived in Australia on 20 January 2002 with a student temporary class TU visa subclass 574. On 7 March 2003, the applicant was granted a second subclass 574 visa. It is the cancellation of that second visa which is the subject matter of these proceedings.
The applicant enrolled in the University of Ballarat. On 11 April 2003, the Department of Immigration and Multicultural and Indigenous Affairs was informed by the University of Ballarat that the applicant was not enrolled in a course for the year 2003. On 8 May 2003, the Department notified the applicant that there may be grounds to cancel his student visa and invited him to attend an interview. An interview was conducted on 29 May 2003. On 12 June 2003, a delegate of the respondent cancelled the applicant's visa. On 13 June 2003, the applicant lodged with the Tribunal an application for review of the delegate's decision. A hearing was held on 28 November 2003. On 9 December 2003, the Tribunal affirmed the delegate's decision.
The relevant statutory and regulatory provisions are these. Section 116 of the Migration Act sub-s.(1) provides:
Subject to subsections (2) and (3), the minister may cancel a visa if he or she is satisfied that ... (b) its holder has not complied with a condition of the visa.
Subsection (2):
The minister is not to cancel a visa if there exists prescribed circumstances in which a visa is not to be cancelled.
Subsection (3):
If the minister may cancel a visa under subsection (1), the minister must do so if there exists prescribed circumstances in which a visa must be cancelled.
Subregulation 2.432 of the Migration Regulations 1994 (Cth) sets out prescribed conditions for a subclass 574 visa. These are contained in condition 8202 in one of the schedules to the regulations. Condition 8202(2)(a) is that:
A holder meets the requirements of this subclause if the holder is enrolled in a registered course.
The Tribunal set out that the applicant stated in his departmental interview that he was suffering financial hardship and was not given more time to pay his fees. The University refused to enrol him until he paid outstanding fees. There are a number of cases which say that in the circumstances of this case, that is, where a requirement of condition 8202 has not been met by the holder of a student visa subclass 574, cancellation by the minister is mandatory.
Ms Ferrari who appears for the respondent has referred me to the most recent of those, a decision of the Full Court of the Federal Court of Australia, Tian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 238. At [65 and 66], the Full Court says:
Subsection 116(3) of the Migration Act does not permit the minister to exercise any discretion at all. If the prescribed circumstances exist and they are the circumstances provided for in subregulation 2.432, the minister must cancel the visa.
The Full Court said that in its opinion, the words of the section are clear, the subsection is mandatory. The Tribunal here was satisfied that the proper procedures had been followed so far as the department giving the applicant notice that there may be grounds to cancel the student visa, conducting an interview and conducting an interview prior to cancelling the visa. The Tribunal was satisfied that the applicant at the relevant time did not satisfy – that is, in the first part of 2003 – a requirement of condition 8202, that is, he was not enrolled in a registered course. In those circumstances, the cancellation of the visa was mandatory. Having made the findings it had made, the Tribunal had no choice but to confirm the delegate's decision.
The applicant has appeared for himself. Initially, he was represented by a solicitor and grounds of review were set out in the application and contentions of fact and law were filed. The grounds set out in the application are of a general nature. The matters set out in the contentions of fact and law do not relate to this case and I do not need to deal with them. The applicant appearing for himself today has alleged that the University of Ballarat lied when it said that he was not enrolled. The applicant has said that it was simply a matter of the fees not being paid.
Two things can be said about that: the first, whether or not the applicant was enrolled in a course was a matter of fact for determination by the Tribunal. There is nothing put forward by the applicant which says that there was anything wrong in the process the Tribunal went through in reaching its conclusion as a matter of fact that he was not enrolled in a prescribed course in the first part of 2003 and there is nothing that appears from the material otherwise that suggests that there was anything wrong with the process the Tribunal went through. The Tribunal had before it the University's notification to the Department of Immigration and Multicultural and Indigenous Affairs that the applicant was not enrolled and the Tribunal was entitled to act upon that notification. No error on the part of the Tribunal is shown and certainly no error which would justify the issue of a prerogative writ. The application is dismissed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Phipps FM
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