Hossain v Minister for Immigration
[2007] FMCA 1116
•13 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOSSAIN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1116 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of a Student (Subclass 572) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.116, 476 Migration Regulations 1994 (Cth), reg.2.43(2)(b), sc.572.212, 572.226, condition 8202 |
| Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 167 Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 261 |
| Applicant: | MUHAMMAD ARIF HOSSAIN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 2032 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person |
| Solicitor for the First Respondent: | Ms T Quinn of DLA Phillips Fox |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 24 July 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2032 of 2006
| MUHAMMAD ARIF HOSSAIN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 24 July 2006 for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal decision was made on 2 June 2006, affirming the decision of a delegate of the first respondent made on 12 May 2005, cancelling the applicant’s Student (Subclass 572) visa. The applicant seeks relief against the decision of the Tribunal.
A Court Book (“CB”) prepared by the first respondent’s solicitors was filed on 25 August 2006. I have marked this Exhibit “A” and the content were read into evidence.
Background
The Tribunal decision of T Delofski, reference N05/03190, contains the following background information, which I adopt for the purposes of this judgment:
1. … Mr Muhammad Arif Hossain (the visa applicant), a national of Bangladesh…applied for a Student (Temporary) (ClassTU) visa on 15 March 2005. The delegate’s decision to refuse to grant the visa is made on 12 May 2005.
2. The visa applicant lodged an application for review with the Tribunal on 10 June 2005.(CB 93)
The Tribunal’s decision under the subheading “Evidence and Findings” provides the following information:
13. The visa applicant’s last held student visa (Subclass 753) was granted on 13 October 2003 and expired on 15 March 2005. On several occasions the Department invited the visa applicant to provide evidence of his academic results in relation to studies undertaken while the holder of this Subclass 573 visa. The visa applicant did not provide any documentary evidence of his academic results over this period. At interview the visa applicant told the Department that the death of his father in November 2003 had affected his ability to concentrate on his studies. In a letter to the Department dated 30 April 2005 the visa applicant stated that the main reason for his poor academic performance at Central Queensland University (CQU) was the illness and subsequent death of his father on 3 November 2003.
14. The Department has received written advice from CQU that the visa applicant did not achieve an academic result that was at least satisfactory in term 2, 2003, the only term for which an assessment of the visa applicant is made. The Department has also received advice on the visa applicant’s academic performance from the International Institute of Business and Information Technology (IIBIT) and the Sydney International College (SIC). The visa applicant’s academic transcript from SIC shows that he achieved zero marks for the 2 subjects he was enrolled in during 2004. A statement of results provided by IIBIT indicates that in 2004 the visa applicant failed one subject and did not complete a further 3 subjects.(CB 95)
The decision of the Tribunal is conveniently summarised by Ms Quinn for the first respondent in her written submissions, which I adopt as follows:
9. In the absence of any certification by the applicant’s education providers that the applicant had achieved an academic result that was at least satisfactory, the [Tribunal] was not satisfied that the applicant had substantially complied with condition 8202 of his last held visa with respect to the requirement. The [Tribunal] therefore found that the applicant did not meet the requirements in clauses 572.212 and 572.226, and so affirmed the delegate’s decision.
Application for review of the Tribunal’s decision
On 24 July 2006, the applicant filed an application for review in this Court under s.39B of the Judiciary Act1903 (Cth), setting out the following ground for review:
The Tribunal failed to exercise its discretion in relation to making a decision in my case.
At the first Court date of 29 August 2006, the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 3 October 2006. Any affidavit material in support of the application was to be filed by the same date. The applicant failed to comply with that order.
Submissions and reasons
The applicant appeared as a self-represented litigant who was fluent in English and did not require an interpreter. He appeared at a directions hearing on 19 October 2006, at which orders were made that he should file and serve a short written outline of submissions and list of authorities 14 days prior to the final hearing. These orders were not complied with. When the applicant was invited to make oral submissions, he indicated that his poor academic performance was due to the illness and subsequent death of his father on 3 November 2003.
The applicant indicated to the Court that university education was too difficult for him and, consequently, he enrolled in the certificate courses at the other two institutions. When I asked whether he was still studying, he replied that he had not done so since failing the course at IIBIT. He also said that he had problems with a bridging visa.
I indicated to the applicant that the issuing of visas was a matter for the Department and not a function of this Court.
Ms Quinn submits that the Tribunal found, in the absence of any certification by the applicant’s educational providers of satisfactory academic performance, that it was not satisfied that he had complied substantially with condition 8202 of his last-held visa. It therefore concluded that the applicant did not comply with sc.572.212 and 572.226 of the Migration Regulations 1994 (Cth). The applicant needed to satisfy sc.572.212 at the time of the visa application. Subclause 572.226 was one of the criteria the applicant needed to satisfy at the time of the decision. On 15 March 2005 when the applicant applied for the visa, the subclause provided:
572.212 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 …
572.226 If the application is made in Australia, the applicant continues to satisfy the criteria in clause 572.212.
Ms Quinn submits that the visa that the applicant held immediately prior to applying for the student visa was a Student (Subclass 573) visa, which was subject to condition 8202. When the Student (Subclass 573) visa was granted on 30 October 2003, condition 8202(3)(b) required the applicant to 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 (which ever is shorter) of the course.
The Tribunal found that the applicant had not achieved academic results certified by his education provider to be at least satisfactory during the entire duration of his Student (Subclass 573) visa.
Ms Quinn referred to Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 167 which considered condition 8202(3)(b) as it applied in that case, which is identical to condition 8202(3)(b) as it applies to the matter before this Court, and whether “substantial compliance” has any meaning in the context of that condition. Jayasekara confirmed the assessment of condition 8202(3)(b) in Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 261 at [10] per Ryan J which held:
However, the presence or absence of a certificate from the education provider is not susceptible to being affected by circumstances beyond the applicant’s control in that sense. Either the education provider has certified that the applicant’s academic results for the relevant period have been at least satisfactory or it has not. Discretionary factors of the kind to which Katz J referred in Baidakova and which are noted in the PAM may legitimately influence the education provider in deciding whether or not to certify that a result has been at least satisfactory but, in the absence of any certificate at all, those factors can have no bearing on the decision which the Tribunal or this Court is required to make.
In Jayasekara at [15]-[16], Heerey and Sundberg JJ (with Finkelstein J dissenting) approved Ryan J’s comments in Weerasinghe:
[15] The substantial compliance requirement might, as counsel’s argument suggests, be apt in the case of par (c) where the condition is expressed in terms of the decision-maker being satisfied of a particular percentage of contact hours. However, in the present case it is not suggested there was any certificate at all. There was thus no compliance, let alone substantial compliance. Still less could reasons or explanations for non-compliance amount to compliance, substantial or otherwise.
[16] There is an obvious policy behind the way the condition is framed. Questions of academic progress should be left to the judgment of the education provider rather than a Departmental decision-maker or the Tribunal, who are less well fitted to make such judgments: Khan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 141 at [4].
Ms Quinn contends that the situation in this matter is identical, in that the Tribunal found that there was no certification for the applicant’s academic performance from the education provider during the period of the previous visa. That is, it found that there was no compliance with condition 8202(3)(b) when his previous visa was granted. The applicant’s reason for his poor academic performance was considered by the Tribunal, and as the Court in Jayasekara found, was not relevant to whether there had been substantial compliance with a condition. I agree with the submission made by Ms Quinn that the Tribunal was therefore correct in not being satisfied that the applicant complied substantially with condition 8202 of his last held visa, and correctly refused the grant of the new visa.
The applicant in these proceedings was self-represented and attended the final hearing without the benefit of appropriately drafted grounds of review or any supporting submissions. He effectively made only one claim from the bar table in support of his application, which related to the illness and subsequent death of his father at about the time he should have been addressing his final examinations at CQU. I note that in Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 at [44], Ryan, Nicholson and Lander JJ said:
It may be further observed that the Migration Amendment Regulation 2006 (NO8) have amended the provisions of Sch 5 relating to Student (Tempoarary) (Class TU) Visas in regulation 2.43(2)(b). The effect of the amendment is to import an additional element into the matter which the Minister must consider before cancelling a visa for breach of conditon 8202. That element is “that the non-compliance was not due to exceptional circumstances beyond the visa holders control”. The effect is therefore to place the procedure under s.20 of the Overseas Students Act and s.116 of the Migration Act on a similar footing with respect to considerations of exceptional circumstances. The amendment came into effect on 7 October 2005 so cannot assist Ms Zhou.
Similarily, in the matter before this Court, the delegate’s decision was made before the Migration Amendment Regulation 2005 (No 8) (Cth) came into effect, thereby denying Mr Hossain the opportunity for such relief. This issue was not referred to in the Tribunal decision, nor were there any submissions made in this respect during the Court hearing.
Conclusion
The applicant appeared at the hearing as a self-represented litigant which places an obligation on this Court to independently consider whether any argument based on the material could have been made out. Ms Quinn for the first respondent assisted the Court with written submissions which were supplemented by oral submissions. The application for review contains a single unparticularised claim that the Court had not exercised its discretion. No other claims were made. I have reviewed the Court Book and the Tribunal decision. I am satisfied that on the face of the documents, it is not apparent that any jurisdictional error has been made and consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 13 July 2007
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