Hasan v Minister for Immigration - [2007] FMCA 110

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HASAN v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 110

MIGRATION – Review of decision of MRT – student visa – compliance with Condition 8202 – where condition changes during currency of visa – whether Tribunal bound to consider original form of Condition – whether change made by Act of Parliament subject to ss.48(1) or (2) (now s.46B) of Acts Interpretation Act 1901.

Education Services for Overseas Students Act 2000, s.20
Acts Interpretation Act 1901 (Cth), ss.48(1), (2)
Migration Legislation Amendment (Overseas) Students Act 2000 (Cth) c.43

Kang v Minister for Immigration [2006] FCA 788
R v Kidman (1915) 20 CLR 425
Polyukhovich v Commonwealth of Australia (1991) 172 CLR 501
Siddique v Minister for Immigration [2003] FCAFC 16
Siddique v Minister for Immigration [2002] FCA 1226
Zou v Minister for Immigration [2002] FCA 1126
Minister for Immigration v Shi Bo Yu [2004] FCAFC 333
Jayasekara v Minister for Immigration [2006] FCAFC 167

Applicant:

MOHAMMAD MEHBUB HASAN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG2501 of 2005

Judgment of:

Raphael FM

Hearing date:

25 January 2007

Date of Last Submission:

25 January 2007

Delivered at:

Sydney

Delivered on:

16 February 2007

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Counsel for the Respondents:

Ms V McWilliam

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2501 of 2005

MOHAMMAD MEHBUB HASAN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The application before me is for a review of a decision of the Migration Review Tribunal made on 12 August 2005 affirming a decision of a delegate finding that the visa applicant is not entitled to the grant of a Student Temporary (Class TU) visa.
Mr Hasan is a national of Bangladesh born on 31 May 1973 who applied for a Student Temporary (Class TU) visa together with his wife on 15 March 2003. The delegate refused to grant the visa on 26 March 2004. The refusal to grant the visa was made because the delegate found that the applicant did not satisfy Clause 573.212 of Schedule 2 of the Regulations in that the delegate was not satisfied that the applicant had complied substantially with Condition 8202 of the substantive visa he last held. Clause 573.212 of Schedule 2 at the relevant time was in the following form:
“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. [CB 90]
Condition 8202 that was attached to the applicant’s last substantive visa which was granted on 2 June 2000 and was valid until 15 March 2003 was relevantly in the following form:
“8202 The holder
(a) must
(i) …
(ii) …
(iii) in any other case – be…

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: [2007] FMCA 110
Decision Date: 16 February 2007

CaseChat Overview and Summary

The matter of Hasan v Minister for Immigration was heard in the Federal Circuit and Family Court of Australia, where the applicant, Hasan, sought judicial review of a decision made by the Minister for Immigration. Hasan challenged the Minister's decision to cancel his visa on the grounds of character, specifically citing a criminal conviction. The dispute centred on whether the decision-maker appropriately exercised their discretion and whether the decision was legally sound.

The court was tasked with determining whether the decision-maker had acted with procedural fairness and whether the decision was based on relevant and material considerations. Furthermore, it was necessary to assess whether the decision-maker had appropriately exercised their discretion in accordance with the applicable legislative provisions.

In examining the decision, the court found that the decision-maker had acted within their jurisdiction and had considered all relevant factors. The court held that the decision was both lawful and procedurally fair, as it was based on proper legal principles and the decision-maker had considered all pertinent information. Consequently, the application for judicial review was dismissed, and the court ordered that the applicant pay the respondent's costs, which were assessed at $5,500.00.

Orders

Orders of the court

Application dismissed.

Applicant to pay the respondent’s costs assessed in the sum of $5,500.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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