HASAN v Minister for Immigration - [2004] FMCA 233

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HASAN v MINISTER FOR IMMIGRATION

[2004] FMCA 233

MIGRATION – Review of MRT decision – where applicant’s student visa was automatically cancelled – where applicant changed educational institutions on several occasions – where applicant did not accept accuracy of records and documents provided by education provider – where Court order to file amended application not complied with – whether applicant’s current performance has any relevance to review proceedings by the Court – whether Tribunal obliged to consider whether applicant was a “genuine” student.

Education Services for Overseas Student Act 2000, s.20
Migration Act1958 (Cth), s.137J(2)

Abebe v The Commonwealth (1999) 197 CLR 510
MIEA v Wu Shan Liang (1996) 185 CLR 259

Applicant:

Md NAZMUL HASAN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 2557 of 2003

Delivered on:

7 April 2004

Delivered at:

Sydney

Hearing date:

7 April 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in Person

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $2,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 557 of 2003

Md NAZMUL HASAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter seeks review of a decision of the Migration Review Tribunal made on 18 March 2003. On that day the Tribunal affirmed the decision of a delegate not to revoke the automatic cancellation of a subclass 560 (student) visa formerly held by the applicant.
The applicant first came to Australia as a student in January 2000 and was granted a further student visa in February 2000. He was originally enrolled in a course at Access Language Centre but in May 2000 enrolled in a course at the Canterbury Business College. The applicant's period of attendance at the Canterbury Business College was not a happy one. He told the Tribunal he had complaints about the quality of teaching and the facilities provided. On 8 August 2001, the college issued a notice to the applicant under s.20 Education Services for Overseas Student Act 2000. The effect of that notice was that upon the expiry of 28 days the applicant's student visa was automatically cancelled by force of s.137J(2) Migration Act 1958. The applicant sought revocation of that automatic cancellation on 3 May 2002.
The department investigated the situation and sought information about the applicant's attendance and academic performance from Canterbury Business College. The College confirmed that he had attended more than 80 per cent of his classes in terms two and three of the year 2000 but had then fallen below that figure ending with 30 per cent in term two of 2001 and zero in term three [CB 14]. He had last attended the College on 25 June 2001, having enrolled in another course at the Australian Institute of Management and Computing, which he began attending in August 2001 and in which he had satisfactory attendance in term four of 2001. He withdrew himself from that course to begin studying at TAFE in January 2002.
The department through its delegate declined to revoke the automatic cancellation and the applicant sought review of that decision by the Tribunal on 27 May 2002.
The Tribunal's decision, which is found at [CB 118] et seq recites the relevant law, including the provisions of condition 8202. The Tribunal noted that the review applicant would have to satisfy it that the breach (if there was one) was due to exceptional circumstances beyond his control if it was to be excused.
The applicant argued in relation to the breach of condition 8202 that the warning letters allegedly sent to him by the College were a fabrication and that he had in fact attended over 80 per cent of his classes. He also denied that a letter allegedly written by him acknowledging that he was irregular in attendance, was written by him or alternatively if it was written by him, it was written by him under duress [CB 105].
The Tribunal came to the conclusion that it did not accept the applicant's assertions that he had been in attendance at his classes for over 80 per cent of the required time in the semester. The Tribunal pointed out certain inconsistencies in the applicant's evidence. At [CB 124] the Tribunal stated:
“In the Tribunal's view, the most reliable evidence available indicates that the review applicant did in fact breach condition 8202 as it attached to his visa when enrolled to study at Canterbury Business College. While during the hearing the review applicant made various claims regarding the activities of the college and their dislike for him, earlier evidence presented by him referred to poor attendance and did not suggest that he had in fact satisfied the attendance requirements. In particular, in a written statement, the review applicant refers to classes being boring, to attending the computer lab and surfing the internet and to not attending classes at this time. This statement was provided to explain the absences which had been recorded in relation to the review applicant. The statement clearly indicates that the review applicant had ceased attending classes and does not suggest that he was in fact attending classes and that the attendance recorded by the College was incorrect. In the Tribunal's view, only during the hearing have the review applicant's claims changed to the point where he now claims that no breach occurred.
In view of the changing nature of the evidence provided by the review applicant regarding the circumstances, the Tribunal does not believe that he has presented a reliable account of his circumstances. For this reason the Tribunal relies upon and finds to be correct the attendance records maintained by Canterbury Business College and is of the view that a breach of condition 8202 occurred in relation to the review applicant's attendance in term four 2000 and in terms one, two and three 2001. He did not therefore, attend at least 80 per cent of scheduled contact hours of the course at which he was enrolled during those times.”
The Tribunal then turned to consider whether or not the breach of condition 8202 was due to "exceptional circumstances beyond the applicant's control". It noted the applicant's complaints about the College but did not find them convincing. It noted that the applicant's history of subsequent study, which involved partial completion of two further courses, has indicated that his failure to complete the course at the College was not exceptional. The Tribunal came to the conclusion that the breach of condition 8202 was not explained by exceptional circumstances.
The applicant sought review of the decision of the Tribunal by way of an application filed in this court on 14 April 2003. The application has three grounds.
1. In Canterbury Business College things happen without my concern (out of my control).
2. Since Canterbury Business College I got good academic result/attendance with my College.
3. I can prove that I was a genuine student and still I am genuine.
Although the applicant was required by orders of the court to provide an amended application and an affidavit in support on 1 October 2003, nothing has appeared. The submission that things happened out of his control seems to me to be a submission going to the facts of his relationship with the management of the Canterbury Business College. These are matters which are strictly within the remit of the Tribunal and are not matters which are appropriate for consideration by this court. The Tribunal took into account the applicant's complaints about the College and sought information from it. It concluded, on the basis of evidence before it, that it preferred the evidence of the College over that of the applicant. That is a finding on credibility and on facts with which this court cannot interfere. There is no error in law in making a wrong finding of fact: Abebe v The Commonwealth (1999) 197 CLR 510. The court cannot review the merits of the Tribunal's decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272.
The second issue raised by the applicant, namely his subsequent results are irrelevant for the purposes of these proceedings. The fact that the applicant is now doing well may be corroborative of his story concerning the inadequacies of the education provided by the Canterbury Business College but that is a matter for the Tribunal and not for this court.
The third matter seems to be no more than an expression of the second in a different way. I am aware that in the regulations relating to student visas, the fact that a visa holder may not be a genuine student could be grounds for cancellation of his visa, but that is not being alleged here. I have no reason to believe that the applicant is not a genuine student but this does not prevent the operation of condition 8202 or the Tribunal's decision not the revoke the cancellation of the visa.
For these reasons I am unable to find that there are any grounds upon which the applicant can seek review of the Tribunal's decision.

I dismiss the application. I order that the applicant pay the respondent's costs, which, in the absence of counsel today, I assess in the sum of $2,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 20 April 2004