Hasan v Minister for Immigration

[2006] FMCA 1790

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HASAN v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1790

MIGRATION – MRT decision – cancellation of student visa – breach of condition 8202 – no evidence of exceptional circumstances given to Tribunal – no arguable case – application dismissed at show‑cause hearing.

Federal Magistrates Court Rules 2001 (Cth), rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), ss.116(3), 359A, 359B, 359C(2), 360(2)(c), 360(3), 363A, 379A(4), 379C(4), 476
Migration Regulations 1994 (Cth), reg.2.43(2)(b)(ii), 4.17(3), Sch.8 item 8202

Minister for Immigration & Multicultural & Indigenous Affairs v Sun (2005) 146 FCR 498, [2005] FCAFC 201

Applicant: ZIHAN SOBHAN HASAN

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG2307 of 2006

Judgment of: Smith FM

Hearing date: 13 November 2006

Delivered at: Sydney

Delivered on: 13 November 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms K McNamara

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed. 

2. The applicant must pay the first respondent’s costs in the sum of $2,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2307 of 2006

ZIHAN SOBHAN HASAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 21 August 2006 seeking an order that the respondent show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Migration Review Tribunal (“the Tribunal”) sent to the applicant on 24 July 2006 and dated 4 July 2006.  The Tribunal affirmed a decision taken by a delegate on 9 January 2006 to cancel a Subclass 573 Higher Eduction Sector visa held by the applicant. 

2. The power to cancel in the present case was subject to s.116(3) of the Migration Act and reg.2.43(2)(b)(ii) of the Migration Regulations 1994 (Cth) (“the Regulations”), which had the effect that cancellation was mandatory if the decision‑maker was satisfied that: 

   (A)the visa holder has not complied with condition 8202; and

   (B)the non‑compliance was not due to exceptional circumstances beyond the visa holder’s control. 

3. Condition 8202 on the applicant’s visa, included the obligations:  

   (3)A holder meets the requirements of this subclause if: 

   (a)in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled: 

   (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 and semester of the course; and

   (b)in any case – the holder 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. 

4. In the present case, the delegate and Tribunal on review had information from Victoria University of Technology, which was the education provider for the course in which the applicant was enrolled.  The applicant had enrolled in a Bachelor of Science in Computer Science course which commenced in 2004 and required attendance during 2005.  The information from Victoria University was that: “student began well in 2004 and attended and passed courses.  On his return in 2005 he had very poor attendance and failed all courses”.  That information was given on 23 November 2005.  It also indicated that in Term 2 of 2005 he had an attendance rate of 37%, and in Term 3 which lasted from 8 August 2005 to 19 October 2005, the applicant had attended for none of the contact hours scheduled. 

5. At no point in the decision‑making process did the applicant contest this information concerning his attendance and academic results, nor did he seek to put forward to the delegate or to the Tribunal an explanation or any submission showing “exceptional circumstances beyond the [applicant’s] control”. 

6. The applicant lodged an application for review to the Tribunal on 30 January 2006 giving his residential address in Surry Hills as the place to which he requested correspondence to be sent.  The Tribunal sent to that address a letter dated 23 May 2006, inviting the applicant to comment upon the information from the University which suggested that he was in breach of condition 8202. 

7. The letter invited the applicant to present a certificate from his education provider showing satisfactory academic results, and also invited his written comments by 9 June 2006.  The letter warned the applicant that if the Tribunal did not receive any comments within the period allowed or as extended, it might make a decision on the review without taking any further action to obtain comments or to invite him to a hearing.  The letter also included a request for further information as to the reasons for his low attendance and poor academic results. 

8. I am satisfied that this letter constituted an invitation under s.359A of the Migration Act, which complied with the requirements of s.359B. The letter specified a date for a response to be given, being the prescribed period. I am satisfied that by reason of ss.379A(4) and 379C(4) and reg.4.17(3), the letter properly identified 9 June 2006 as the date by which the applicant was required to respond.

9. Two file notes made by a Tribunal officer on Friday 9 June 2006 record conversations with the applicant at 2.44 pm and 3.04 pm.  In the first conversation, the applicant requested until the following Tuesday for an extension of time to respond to the letter.  The officer appears to have indicated that he would raise this request with the Tribunal member.  The second note records the officer ringing back the applicant and informing him: 

   Re above: at member’s request rang the RA and said that he was not going to get an extension of time unless he was claiming that he could not respond to the 359 letter over the last few weeks because he had been too seriously ill to do so for that time, and, as such, he should simply respond to the letter as soon as possible if not by the due date of close of business today.  The RA said he had been sick for the last two days but he had a high fever and it was too cold to leave the house.  I advised him again of the due date and that he should fax his response by then or as soon as he could. 

10. However, the applicant did not lodge any response by the due date. The consequence was that the applicant lost his entitlement to attend a hearing pursuant to the provisions of ss.359C(2), 360(2)(c) and 360(3), and the Tribunal was expressly prohibited from inviting the applicant to attend a hearing (see s.363A and Minister for Immigration & Multicultural & Indigenous Affairs v Sun (2005) 146 FCR 498, [2005] FCAFC 201 at [50]).

11. The Tribunal, however, seems to have waited until 24 July 2006 to see whether any further communications were made by the applicant before it handed down its decision.  The documents before me indicate that no explanation for the applicant’s very poor attendance and record in his last semester was ever provided. 

12. In its statement of reasons, the Tribunal explained a finding that the applicant was in breach of condition 8202 in relation to both the attendance requirement and because it was not satisfied that he had achieved an academic result that was certified by the education provider to be at least satisfactory. 

13. In relation to whether there were exceptional circumstances, the Tribunal concluded:  “there is no evidence before the Tribunal that the applicant’s non‑compliance with condition 8202 was due to exceptional circumstances beyond the applicant’s control”. 

14. I can see no arguable error in the Tribunal’s reasoning or procedures in this case, whether of a factual, legal or jurisdictional nature. 

15. The applicant’s application filed in this Court on 21 August 2006 has as its ground: 

    Migration Review Tribunal failed to consider my case and asked me wrong question in assessing my case.  The tribunal erred in law to exercise its discretion and therefore made jurisdictional error. 

16. However, no particulars for these contentions are provided in the application and the applicant has filed no amended application or other documents to elucidate them.  He declined to make any submissions today to do that.  In the absence of particulars, I am unable to find any arguable substance in the grounds set out in the application. 

17. The application was given a first court date before me on 19 September 2006.  The applicant attended in person on that day.  He speaks English and did not request the assistance of an interpreter.  I made orders allowing him to file an amended application and any additional evidence, after receiving a bundle of documents.  However, as I have indicated above, he has not submitted any documents to make out any ground of review. 

18. For the above reasons I am not satisfied that the application has raised an arguable case for the relief claimed, and I consider it is appropriate in the circumstances to dismiss the application today under r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  8 December 2006