Hasan v Minister for Immigration
[2006] FMCA 1255
•31 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HASAN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1255 |
| MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal breached s.359A of the Migration Act 1958 (Cth) – whether applicant gave information of breach of visa condition 8105 to Migration Review Tribunal. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.116; 359A; 359A(1); 359A(4)(b); 424A; 474; pt.8 div.2 Migration Regulations 1994, sch.8 |
| SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 |
| Applicant: | MOHAMMED MAHMUDUL HASAN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG319 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 21 August 2006 |
| Date of last submission: | 21 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N. Dobbie, Parish Patience Immigration Lawyers |
| Solicitors for the Respondent: | Ms S. Burnett, Clayton Utz Lawyers |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG319 of 2005
| MOHAMMED MAHMUDUL HASAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 12 January 2005. The Tribunal decision affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) dated 26 July 2004 to cancel the Subclass 572 (Vocational Education and Training Sector) visa held by the applicant because of the applicant’s failure to comply with condition 8105 of his visa.
The applicant is a 22 year old male who claims to be a citizen of Bangladesh (“the Applicant”).
The Applicant arrived in Australia on 4 November 2003 on a Student (Temporary) (Class TU) visa, Subclass 572, which was granted on
19 October 2003.
On 19 November 2003, the Applicant was granted a Subclass 572 visa with limited working rights, with condition 8105 attached. This condition limits the number of hours that the visa holder can work to 20 hours a week.
On 26 July 2004, the Delegate cancelled the Applicant’s student visa on the ground that the Applicant had worked more than 20 hours per week and thus was in breach of condition 8105 of his student visa.
On 28 July 2004, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 12 January 2005, the Tribunal affirmed the decision of the Delegate to cancel the Applicant’s Student (Temporary) (Class TU) visa.
On 7 February 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The proceeding before this Court
The Applicant was represented before this Court by Mr Dobbie, solicitor.
By consent, leave was granted to the Applicant to file in Court and rely on a further amended application identifying the following grounds:
“Ground 1: The Tribunal breached s359A of the Act
The Tribunal failed to give the Applicant the notice required pursuant to s359A of the Act in relation to the following information:
1. That the Applicant’s student visa was granted on 19 November 2003 and was subject to Condition 8105 (as it was at that time). That information was a reason or a part of the reason why the decision under review was affirmed.
2. That the Applicant’s Diploma of Information Technology (System Administration) course had the following semester details:
(i) Semester 1 of 2004 was for a period of 10 weeks, which started on 2 February 2004 and ended on 9 April 2004. That information was a reason or a part of the reason why the decision under review was affirmed.
(ii) Semester 2 of 2004 was for a period of 10 weeks, which started on 26 April 2004 and ended on 2 July 2004. That information was a reason or a part of the reason why the decision under review was affirmed.”
Ground 2 was not pressed.
Ground 1 – The Tribunal breached s.359A of the Act
The Applicant contended that the Tribunal had not complied with its obligations under s.359A of the Act where consideration by the Tribunal of the Applicant’s visa and condition 8105 attached to that visa was part of the reason for affirming the decision under review, and that information was not given by the Applicant to the Tribunal for the purposes of its review.
Relevantly, condition 8105 required the Applicant to work no more than 20 hours a week. The Tribunal noted in its decision that the Applicant stated that he did work more than 20 hours a week. In the circumstances the Tribunal found that there had been a breach of condition 8105 which resulted in the mandatory cancellation of his visa pursuant to s.116 of the Act.
The Applicant contended that his admission of working more than 20 hours a week was not an admission that he was in breach of condition 8105. In support of that contention the Applicant referred the Court to schedule 8 of the Migration Regulations 1994 that showed that condition 8104 also required that the holder not work for more than 20 hours a week.
On 29 September 2004 the Tribunal purported to write to the Applicant pursuant to s.359A of the Act inviting comment on a letter received by the Department from the Applicant’s employer indicating that the Applicant worked more than 20 hours a week between 15 February 2004 and 9 May 2004. The Tribunal went on to state:
“This information is relevant to the review because, if the Tribunal finds that you did work in excess of 20 hours a week while your course was in session, it may find you were in breach of visa condition 8105. Condition 8105 states that you cannot work more than 20 hours per week while your course is in session. If the Tribunal finds that you were in breach of this visa condition, it may decide not to set aside the cancellation of your visa.”
The Applicant contended that the failure of the Tribunal to give to the Applicant the information about his visa and the condition attached was similar to the situation in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) where the Court held that a failure to provide the information contained in an applicant’s passport was in breach of s.424A of the Act. However, the Court’s of breach of s.424A of the Act in SZEEU was based on the finding that the information that formed part of the reason for the Tribunal affirming the decision under review was that the contents of the passport were at odds with the Applicant’s oral evidence thereby leading the Tribunal to make adverse credit findings.
In the case before this Court the information relied upon by the Tribunal, as part of the reason for affirming the decision under review, was the information given by the Applicant to the Tribunal that he had worked more than 20 hours per week. In its letter of 29 September 2004 the Tribunal made clear that if it were to find that the Applicant worked more than 20 hours per week then the Applicant would be in breach of condition 8105. The Tribunal went on to identify that condition 8105 mandated that the Applicant could not work more than 20 hours a week while his course was in session. The Tribunal noted that such a breach would be of a condition attached to the Applicant’s visa.
The Applicant contended that it was not clear that condition 8105 was attached to the Applicant’s visa. I reject that submission. The Tribunal’s letter dated 29 September 2004 makes it clear to the Applicant that condition 8105 attached to his visa and that the consequence of a breach of that visa in terms of working more than 20 hours a week was likely to be the cancellation of that visa.
The Applicant clearly gave the information that he worked more than 20 hours a week to the Tribunal and it was that information upon which the Tribunal relied in concluding that the Applicant was in breach of condition 8105 of his visa resulting in the affirming by the Tribunal of the decision under review.
In the circumstances, such information is excluded from the requirements of s.359A(1) of the Act by s.359A(4)(b) of the Act which states that the requirements of s.359A(1) of the Act do not apply to information that an applicant gave for the purpose of the application.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly the proceeding before this Court is dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 31 August 2006
0
1
3