Hasan & Ors v Minister for Immigration & Anor
[2007] FMCA 669
•7 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HASAN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 669 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a temporary student visa – applicant breached condition 8202(3)(b) – Tribunal considered the review application more generously to the applicant than it was authorised to do – no jurisdictional error established. LAW REFORM – The desirability of harmonising regulation 2.43 and clause 574.212 discussed. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958, s.359A Migration Regulations 1994 (Cth) |
| Cui v Minister for Immigration & Anor [2006] FMCA 1266 Jayasekara v Minister for Immigration [2006] FCAFC 167 Khan v Minister for Immigration [2004] FCAFC 141 Weerasinghe v Minister for Immigration [2004] FCA 261 |
| First Applicant: | MEHADI HASAN |
| Second Applicant: | SEHAJADI FARHA |
| Third Applicant: | SHADMAN SHARIOR AHAMED JAMI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1243 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 7 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Jackson |
| Solicitors for the Applicant: | Kazi & Associates |
| Counsel for the Respondents: | Mr D Jordan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Court directs that the name of the first respondent be corrected to the Minister for Immigration & Citizenship.
The application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1243 of 2006
| MEHADI HASAN |
Applicant
SEHAJADI FARHA
Second Applicant
SHADMAN SHARIOR AHAMED JAMI
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the first applicant a temporary student visa. In these reasons references to the applicant are to him. The decision is dated 3 April 2006 which, I note from page 80 of the court book, was the date of handing down of the decision. The relevant background facts in relation to this matter are adequately dealt with in the Minister’s outline of written submissions filed on 3 May 2007. I adopt as background for the purposes of this judgment paragraphs 1 through to 12 of those submissions:
The applicants seek review of a decision of the second respondent (the Tribunal) made on 3 April 2006. By that decision, the tribunal affirmed the decision of a delegate of the first respondent not to grant Student (Temporary) (Class TU) visas to the applicants.
The applicants are a family comprising husband (the applicant), wife and son. On 3 March 2005 the applicant applied for a Student (Temporary) (Class TU) visa (the student visa) on the basis of his proposal to study for a Masters of Information Technology at Central Queensland University. His student visa application included his wife and son as members of his family unit.[1]
The relevant background is summarised in the delegate’s decision and in the decision of the Tribunal.[2]
The Tribunal’s decision turned on its findings in relation to the essential requirements in clause 574.212, and the identical provision in clause 573.212, in Schedule 2 to the Migration Regulations 1994 (“the Regulations”). Clause 574.212, as it applied to the applicant’s student visa application, required the following criteria to be met at the time of the visa application:
If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject.
[1] Court Book (CB) 1
[2] CB 53-54, 84-87
This requirement was relevant because, before his application for a student visa on 3 March 2005, the applicant had been granted a student visa subclass 574 to study English for academic purposes and a Masters of Business Administration at the University of Southern Queensland (the previous student visa).
One of the conditions to which the previous student visa was subject was condition 8202 in Schedule 8 to the Regulations. Relevantly, condition 8202(3)(b) required that the applicant:
…achieves an academic result that is certified by the education provider to be at least satisfactory:
(i) for a course that runs for less than a semester – for the course; or
(ii) for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.
The Tribunal referred to information which had been provided to the delegate from the University of Southern Queensland in relation to the applicant’s academic results during the period of the previous student visa. That information indicated that the University of Southern Queensland did not certify satisfactory academic results by the applicant in relation to semester 2 of 2003 and semesters 1 and 2 of 2004.[3]
By letter dated 21 December 2005 the tribunal invited the applicant to comment on this information, pursuant to s.359A of the Migration Act 1958 (Cth) (“the Migration Act”). The letter notified the applicant of the significance of this information in assessing whether or not the applicant had complied with condition 8202 and, consequently, whether or not the applicant could satisfy clause 574.212 (or clause 573.212).[4]
The applicant responded in a submission dated 19 January 2006 which, essentially, agreed that his academic performance had been less than satisfactory but explained that this had occurred as a result of several factors including difficulties with the course requirements and wrong choice of subjects.[5] In evidence at the hearing before the Tribunal, the applicant also said that a further difficulty had been dealing with the illness of his son, who had been suffering with sinus problems.[6]
On the basis of the information provided by the University of Southern Queensland the tribunal found that, in relation to the previous student visa, the applicant had not complied with condition 8202.[7]
Consequently, the Tribunal addressed the requirements in clause 574.212 (and 573.212).[8] The Tribunal’s analysis in relation to these requirements was made in circumstances where the Tribunal found no evidence that the applicant had breached any other conditions of the previous student visa.[9]
The Tribunal found that the applicant’s failure to achieve satisfactory academic results over three semesters was a significant breach. Taking into account the applicant’s explanations for his poor academic results, the Tribunal was not satisfied that he had complied substantially with the conditions of the previous student visa.[10]
[3] CB 50, see also CB 28-29
[4] CB 67-69
[5] CB 70-74
[6] CB 87 [18]
[7] CB 88 [24]
[8] CB 88 [25]
[9] CB 87 [22]
[10] CB 88 [26] – 88 [29]
The Minister’s submissions also deal with the application before the Court. The grounds advanced by the applicant are reproduced in paragraph 13 of the Minister’s submissions which I also adopt for the purposes of this judgment:
These proceedings were commenced by an application for review filed on 2 May 2006. The applicant now relies upon an amended application, and written submissions, dated 31 July 2006. The particulars, read with the applicant’s written submissions, contend that the tribunal erred because in applying clause 573.212:
The Tribunal asked whether the applicant had ‘substantially complied’ with each and every visa condition attached to the student visa he was granted on 11 February, 2003, considering each in isolation, and in particular, visa condition 8202.
“The Tribunal should have asked whether the applicant had ‘complied substantially with the conditions to which [the 11 February 2003] visa was subject’, which involved considering compliance with the visa conditions as a whole.
Both parties made written submissions and the applicants, through their counsel, also took the opportunity to make written submissions in reply. The substance of the written submissions in reply is that, although the applicants concede on the basis of the Minister’s submissions and the authorities referred to therein that they cannot succeed in this Court, they reserve their rights should they elect to appeal to the Federal Court.
Having considered the matter myself and in the light of the submissions made by the parties, I have come to the view that I am bound by relevant authority of the Federal Court, notably the decision of Ryan J in Weerasinghe v Minister for Immigration [2004] FCA 261 and in the Full Federal Court of Jayasekara v Minister for Immigration [2006] FCAFC 167. I adopt with necessary amendments for the purposes of this judgment paragraphs 14 through to 22 of the Minister’s written submissions:
These contentions cannot be sustained because they are directly contradicted by the decision of Ryan J in Weerasinghe v Minister for Immigration which has since been approved by the Full Federal Court in Jayasekara v Minister for Immigration.
In Weerasinghe v Minister for Immigration Ryan J considered clause 573.212 of the Regulations.[11] His Honour held that it required substantial compliance with all of the visa conditions cumulatively and, therefore, that a failure to substantially comply with any single visa condition was a sufficient basis to find that clause 573.212 could not be satisfied.[12] Further, his Honour held that there was no scope for operation of the distinction between strict and substantial compliance in relation to condition 8202(3)(d) which, in identical terms to condition 8202(3)(b) as applicable in the present case, required certification from the education provider of a satisfactory academic result.[13]
[11] [2004] FCA 261
[12] [2004] FCA 261 at [12]
[13] [2004] FCA 261 at [10]-[11]; followed by Barnes FM, in relation to the construction of an equivalent provision, in Chowdhury v Minister for Immigration [2005] FMCA 1243 at [32]-[24]
In Jayasekara v Minister for Immigration the majority, comprising Heerey and Sundberg JJ, adopted with approval the following passage from the decision of Ryan J in Weerasinghe v Minister for Immigration:[14]
[14] [2006] FCAFC 167 at [5]
Either the education provider has certified that the applicant’s academic results for the relevant period have been at least satisfactory or it has not. Discretionary factors of the kind to which Katz J referred in Baidakova and which are noted in the PAM may legitimately influence the education provider in deciding whether or not to certify that a result has been at least satisfactory but, in the absence of any certificate at all, those factors can have no bearing on the decision which the Tribunal or this Court is required to make.
Heerey and Sundberg JJ went on to explain:[15]
[15] [2006] FCAFC 167 at [12]
Since the regulations include some conditions to which the concept of substantial compliance can have no logical application, the regulations are to be read as not admitting any qualification of substantial compliance in such cases.
In light of the majority judgment in Jayasekara v Minister for Immigration the applicant’s contentions must be rejected.
Further, and in any event, those contentions cannot be sustained because, on a fair reading of the Tribunal’s decision, it cannot be inferred that the tribunal failed to consider whether, notwithstanding the breach of condition 8202, the applicant had complied substantially with the conditions to which the previous student visa was subject, in accordance with clause 574.212 (and 573.212).
First, the Tribunal found that there was no evidence that the applicant had failed to comply with any condition of the previous student visa, other than condition 8202.[16] By this finding, the Tribunal addressed the question posed by clause 574.212 (and 573.212) by reference to all of the conditions to which the previous student visa was subject.
[16] CB 87 [22]
Secondly, the Tribunal’s statement of the requirements in clause 574.212 (and 573.212), and the application of those requirements demonstrate that the Tribunal did have regard to whether or not there had been substantial compliance with the whole of the conditions of the previous student visa:
i)The Tribunal stated the effect of clause 574.212 (and clause 573.212):[17]
[17] CB 87 [21]
In the circumstances of the case, clause 574.212 requires the Tribunal to determine whether the primary visa applicant complied substantially with the conditions to which the student visa held, or last held, at the time of application was subject.
ii)As noted above, the Tribunal then found that there was no evidence that the applicant had failed to comply with any conditions of the previous student visa, other than condition 8202.[18]
[18] CB 87 [22]
iii)The Tribunal then considered whether the applicant had breached condition 8202 and was satisfied that he had done so.[19]
[19] CB 88 [23] – CB 88 [24]
iv)The Tribunal found that the breach of condition 8202 was a “significant breach” and, consequently, found that the applicant did not satisfy clause 574.212.[20] The Tribunal’s ultimate finding was in accordance with the terms of clause 574.212 (and 573.212):[21]
[20] CB 88 [26] – CB 89 [29]
[21] CB 89 [29]
The Tribunal finds that the primary visa applicant has not complied substantially with the conditions of the student visa that he held at the time of the visa application.
v)The Tribunal’s findings in relation to clause 574.212 (and 573.212) were open and reflect the obvious importance of satisfactory academic results when assessing whether there has been substantial compliance with the conditions of a visa which is granted for the specific purpose of education.
As Sundberg and Heerey JJ commented in Jayasekara v Minister for Immigration:[22]
There is an obvious policy behind the way the condition is framed. Questions of academic progress should be left to the judgment of the education provider rather than a Department decision-maker or the Tribunal, who are less well fitted to make such judgments: Khan v MIMIA [2004] FCAFC 141 at [4].
[22] [2006] FCAFC 167 at [16]
On the basis of those submissions, it is apparent that the presiding member erred in seeking to consider and determine whether the applicant had substantially complied with paragraph 3(b) of condition 8202 which attached to the last visa held by him. That was an error, of course, that worked in the applicant’s favour rather than against him. The presiding member would have been aware from the decision of the Federal Court in Weerasinghe that the applicant needed to comply with all elements of the conditions attaching to his visa and it was with that in mind that the presiding member sought to satisfy himself that the applicant had substantially complied with the only element of the condition which was in issue. The Tribunal decision was made in April 2006. The decision of the Full Federal Court in Jayasekara was made on 27 November 2006 and of course that decision was not available to the presiding member. Hence, there should be no criticism of him for not taking it into account. It is perhaps reflective of the presiding member’s approach, however, that he was attempting to do justice to the applicant before him.
In the course of oral argument this afternoon, I drew counsel’s attention to the fact that regulation 2.43 of the Migration Regulations was amended in October 2005 to reintroduce an element of discretion in relation to cancellation decisions that are otherwise mandatory. The relevant part of the regulation is sub-regulation (2)(b)(ii). In respect of visas in force on or after the amendment to the regulation, decision‑makers need to consider whether there are exceptional circumstances beyond the visa holder’s control before cancelling a visa to which condition 8202 applies. I note that Federal Magistrate Barnes dealt with the amendment in Cui v Minister for Immigration & Anor [2006] FMCA 1266 between paragraphs 76 and 89.
I accept counsel for the Minister’s oral submissions that that amendment carries no necessary implication for decisions to refuse to grant a visa where there is a failure to comply with condition 8202 in respect of the visa previously held. The outcome is, to my mind, an odd one and one that potentially works injustice. If, for example, a visa cancellation is set aside by the Tribunal on the basis of exceptional circumstances but the applicant remains unable to secure a positive certification of satisfactory performance from his or her institution, the visa holder may be unable to secure a further visa because of the strict interpretation of clause 574.212.
This suggests one of two things: either that the Minister should give consideration to injecting into clause 574.212 the concept of exceptional circumstances that has been introduced in regulation 2.34 or, alternatively, that the Federal Court might usefully give fresh consideration to the issue dealt with in Jayasekara in the light of the amendment of regulation 2.43. That is, of course, a matter for the Minister and the Federal Court.
In this matter I am bound to conclude that the application fails and, accordingly, I order that it be dismissed.
On the question of costs, the application having been dismissed, costs should follow the event. The court scale for a migration matter that that proceeds to a final hearing is for costs of $5,000. The Minister seeks more than that noting that the Minister’s solicitor and own client costs had substantially exceed that amount. The Minister seeks $6,000 and invites the Court to take into account the protracted history of this matter. It is true that the history of the matter has been protracted. There was initially to be a preliminary hearing under rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) but I understand that the Minister conceded that the matter should proceed directly to a final hearing. It was subsequently decided that the hearing should await the decision of the Full Federal Court in Jayasekara. That necessitated some delay. While I do not dispute that the delay and the somewhat disjointed way in which the matter has been heard has resulted in the Minister incurring some additional costs, I do not accept that the applicant should bear the burden of those additional costs and I see no sufficient reason to depart from the Federal Magistrates Court scale.
I will order that the first and second applicants pay the first respondent’s costs and disbursements of and incidental to the application pursuant to rule 44.15(1) and item 1(c) of Part 2 of schedule 1 to the Federal Magistrates Court Rules in the sum of $5,000.
I further direct that the title of the first respondent be corrected to the Minister for Immigration and Citizenship.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 May 2007
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