Hassan v Minister for Immigration
[2006] FMCA 1114
•28 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HASSAN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1114 |
| MIGRATION – MRT decision – refusal of second student visa – whether substantial compliance with Condition 8202 – assessment of unsatisfactory academic progress – no error found. |
| Migration Act 1958 (Cth), ss.54(1), 474(1), 476(1), 476 |
| Minister for Immigration & Multicultural Affairs v Modi (2001) 116 FCR 496 Minister for Immigration and Multicultural and Indigenous Affairs v Yu (2004) 141 FCR 448 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171 Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 Uddin v Minister for Immigration [2006] FMCA 1041 |
| Applicant: | KH TARIQUE HASSAN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1200 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 28 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Counsel for the First Respondent: | Ms Sirtes |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1200 of 2006
| KH TARIQUE HASSAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 27 April 2006, seeking orders under s.476 of the Migration Act 1958 (Cth), by way of judicial review of a decision of the Migration Review Tribunal, handed down on 30 March 2006. The Tribunal affirmed a decision of a delegate that the applicant was not eligible for a Student (Temporary) (Class TU) visa, for which he applied on 3 March 2005.
The Court's jurisdiction under s.476(1) is the “same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”. Its powers are confined by s.474(1), so that I do not have power to grant relief, unless I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for the visa which he was refused, or any other visa.
Prior to applying for the present visa, the applicant had been studying in Australia on a subclass 574 visa granted on 25 September 2003, which was valid to 15 March 2005. Under that visa, he continued his enrolment at the Sydney campus of the University of Southern Queensland (“USQ”), in a course for a master of information technology degree which was due to conclude on 30 December 2004. However, he did not complete the course and, when making his present application for a further student visa on 3 March 2005, he indicated that he proposed to pursue a different course, being a master of information systems by coursework, at the Sydney campus of the Central Queensland University (“CQU”). He proposed to undertake that course from 7 March 2005 to 6 March 2007.
Before deciding the 2005 visa application, the delegate obtained information from USQ, as to his performance in his studies at that university. It gave the delegate a print-out of his results, which showed that over three terms he had passed only two subjects and had failed seven. USQ also gave an opinion, which was shown by answering "No" in relation to each of the university terms, to the question: “whether or not the student made satisfactory academic progress for each term of their course”.
On 12 May 2005, the delegate refused the visa on the ground that the applicant had failed to satisfy a time-of-application criterion found in the Migration Regulations Sch.2, item 573.212. This provided:
573.212 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.
The delegate concluded that, in the light of the information from USQ, the applicant had not complied substantially with a condition attaching to his 2003 visa, being a condition found in item 8202(3)(d) of Sch.8, which required:
in any case - the holder achieves an academic result that is certified by the education provider to be at least satisfactory:…
(ii) for a course that runs for at least a semester - for each term or semester (whichever is shorter) of the course.
The applicant then employed solicitors to lodge and present his application for review to the Migration Review Tribunal. This was lodged on 2 June 2005.
No point is raised by the applicant as to the procedures followed by the Tribunal when inviting him to comment on adverse information on three occasions and when inviting him to attend a hearing. In its written invitations for comment, the Tribunal put to the applicant the information which it obtained from USQ as well as the information which was on the Department file.
The applicant's solicitors presented a statement to the Tribunal, seeking to explain the applicant's poor results at USQ. They conceded that “he failed two subjects in 2003 and received a distinction in one subject. In 2004, he failed six subjects and passed one subject”. They summarised their submission, based on material presented to the Tribunal:
In the present case it is submitted that:
1. The applicant is a genuine student. The enclosed results for his course at CQU confirm that he is passing his subjects.
2. The applicant’s father was terminally ill, and this caused the applicant to become depressed.
3. The applicant’s father subsequently died and, when he found out about the death, he was further depressed.
4. The applicant’s wedding was abandoned, as a result of his father’s death, adding to his depression. The applicant’s relationship subsequently broke down.
5. USQ did not provide the tuition that the applicant thought he would receive; for example, there is no library facility in the Sydney campus and contact with the university had to be done by email or by telephone. Further, the applicant claims that the teaching quality was poor.
6. The applicant was suffering from culture shock and homesickness.
7. The applicant did not deliberately flaunt the condition breached.
At one point, the solicitors presented to the Tribunal a letter from USQ, dated 13 February 2006, addressed, "To whom it may concern", which said:
This is to certify that KH Tarique Hassan was enrolled as a full time student in Master of Information Technology (CRICOS Course Code 040814M) at UNIVERSITY OF SOUTHERN QUEENSLAND, provider code:02225M, which commenced on 21/07/2003 and had finished on 30/12/2004.
Mr. KH. Tarique Hassan was under stress during semester 1, 2004 as his father was sick. His father had died during semester 1, 2004 exam period. He has informed us that he was under stress and pressure because of personal circumstances including the illness and death of his father. Taking all of his academic result were satisfactory for semester 1 2004 to semester 2, 2004, please consider his application for Visa Extension.
Should you require any further information, please do not hesitate to contact me on [number provided].
However, when the Tribunal queried this letter with the university, it was told:
The last line regarding his academic performance is incorrect (typing error) as I run on a template - it can sometimes occur.
A modified letter removing the last sentence was issued, and the Tribunal was further advised on 16 February 2006:
The student's academic performance was NOT satisfactory in ALL semesters (semester 2, 2003, semester 1, 2004 and semester 2, 2004,) that he studied at USQ.
On the student's request, USQ has issued "To whom it concern" letters stating that we were aware of this student's personal circumstances that may have affect (sic) his academic performance but this does NOT alter the above assessment of his academic performance.
As I have indicated above, the Tribunal put this last communication to the applicant for his comment.
In its statement of reasons for affirming the delegate's decision, the Tribunal briefly referred to relevant authorities concerning the interpretation of clause 573.212, including the Full Court’s judgment in Minister for Immigration & Multicultural Affairs v Modi (2001) 116 FCR 496. It is unnecessary for me to consider its discussion further in this case. It was similar to the discussion by the Tribunal in a case which I upheld in a recent reserved judgment where the applicant was legally represented (see Uddin v Minister for Immigration [2006] FMCA 1041). As in that case, the subsequent repeal of clause 573.212 is not relevant to the present case (see Uddin at [15]).
In the present case, I am not persuaded that the Tribunal made any error of law in its understanding of the issues to be addressed by it.
After reciting the evidence concerning the opinions of USQ as to the applicant's academic results which I have referred to above, the Tribunal concluded:
20. Condition 8202(3)(b) which attached to the visa applicant’s Student visa required that he achieve an academic result that is certified by the education provider to be at least satisfactory, for a course that runs for at least a semester, for each term or semester (whichever is shorter) of the course. However, the visa applicant’s education provider has not indicated that he achieved an academic result that is certified by the education provider to be at least satisfactory for each term of his course. The education provider has not certified that the visa applicant achieved an academic result at least satisfactory for:
· Semester 2 of 2003
· Semester 1 of 2004
· Semester 2 of 2004
21. After considering the legislation, and carefully considering the evidence, the Tribunal finds that the visa applicant breached condition 8202 of his visa for each of the above reasons.
In my opinion, this reasoning is consistent with relevant authorities concerning satisfaction with condition 8202(3)(b) (c.f. Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 and Minister for Immigration and Multicultural and Indigenous Affairs v Yu (2004) 141 FCR 448).
The Tribunal then considered whether the applicant "complied substantially" with his previous visa conditions, and, in particular, the significant condition found in 8202. It referred to the applicant's evidence given to it at the hearing and in his solicitor's submissions, in a manner which, in my opinion, shows that it appreciated his points. It concluded:
27. After considering the evidence, the Tribunal finds that the breaches of condition 8202 were significant. After considering the legislation and the evidence cumulatively, and in particular the submissions and arguments raised by the visa applicant, the Tribunal finds that the visa applicant has not complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject. The Tribunal finds that the visa applicant does not satisfy clause 573.212.
The Tribunal also referred to the inability of the applicant to satisfy criteria in relation to other subclasses of this visa.
In my opinion, the Tribunal's reasoning reveals no jurisdictional affecting its decision.
The application filed in this Court appears to have been framed by a lawyer, although the applicant has been legally unrepresented throughout. It states the following ground:
The applicant gave reasons to the Tribunal for why his academic results were unsatisfactory in 2003 and 2004: see MRT decision at [23]. The Tribunal must give “realistic regard” to the applicant’s reasons: see Singh v MIMIA (2001) 109 FCR at [59]. The Tribunal failed to give realistic regard to these reasons. As a result, the Tribunal fell into jurisdictional error.
The reference to an obligation to give "realistic regard" and to Singh's case is not directly relevant to the duties on this Tribunal, since that case concerned the duty on the Minister under the procedural code relevant to primary decision-making, and in particular under s.54(1) to "have regard to" all the information in the visa application. There is no similarly expressed duty in the procedural code applicable to the Tribunal. However, I accept that it is an implication of the Tribunal's obligation to review the delegate's decision on an application for review that it should take into account and give such weight as is either required by law, or is permitted and appropriate in the circumstances, to an applicant's case which has been presented to it.
As has been said in the High Court in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171 at [37]:
it is implicit in the reference in s.425 to a hearing where evidence may be given that the challenge to the decision under review by the RRT be given a proper, genuine and realistic consideration in the decision to be subsequently made by the RRT.
In the present case, I am not satisfied that the Tribunal has failed in its obligation to consider the applicant’s case. Indeed, in my opinion, on the material before me, it has addressed the explanations given to it by the applicant for his poor results, and also his other submissions as to why the Tribunal should not regard his admitted breaches of condition 8202 as establishing that he had not complied substantially with the conditions attaching to his 2003 visa.
In his oral and written submissions, the applicant has not been able to identify any specific point which was in fact presented to the Tribunal, which can be shown to have been overlooked.
The applicant did not file an amended application, nor evidence by way of affidavit, but presented a document headed "Submission," to which was attached a number of documents, including a study book from USQ. It appeared to me probable that this material had never been presented to the Tribunal, and that it was irrelevant to my consideration. I therefore did not admit it into evidence, but it has been marked for identification at the request of the applicant.
His arguments in his submission largely canvassed again, sometimes with reference to fresh material, the contentions which had been put to the Tribunal. As I have explained to the applicant, it is not the function of the Court to reassess those contentions to decide whether the Tribunal arrived at the correct or preferable conclusion. That was the function of the Tribunal. I do not think his written submission has raised any ground of jurisdictional error.
In his oral submissions, the applicant referred to three points. First, the fact that he had presented to the Tribunal the USQ letter of 13 February 2006, which appeared to contain an opinion that his academic results were satisfactory. His implication was that the Tribunal should have treated that letter as conclusive of the issue of compliance with section 8202. However, in my opinion, it was open to the Tribunal to accept USQ's subsequent explanation that the opinion was given by error. I consider it was open to the Tribunal to conclude, on all the evidence concerning the opinions of USQ, that it would not certify that the applicant had achieved an academic result which was "at least satisfactory" for each term of his course.
The applicant's second point was that he was aware of another student in a similar situation, who had received a favourable outcome from the Tribunal. However, in my opinion, this contention does not succeed in establishing jurisdictional error by the Tribunal in the decision before me. The present Tribunal had a duty to decide for itself the issues in his case, and the applicant has not established any such inconsistency as would suggest that this Tribunal has not properly performed its duty of review.
The applicant's third point canvassed the inadequacies which he claimed to have encountered in his course at USQ. However, in my opinion, these contentions, to the extent that they had been submitted to the Tribunal, were addressed by it.
For all the above reasons, I have not been persuaded that the Tribunal's decision was affected by jurisdictional error. It therefore is a privative clause decision, and I must dismiss the application.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 16 August 2006
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