Hossain v Minister for Immigration and Citizenship

[2007] FCAFC 67

FEDERAL COURT OF AUSTRALIA

Hossain v Minister for Immigration and Citizenship [2007] FCAFC 67

SAYEED AKTHER HOSSAIN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

NSD 385 OF 2007

MANSFIELD, LANDER & SIOPIS JJ
18 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 385 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SAYEED AKTHER HOSSAIN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGES:	MANSFIELD, LANDER & SIOPIS JJ
DATE OF ORDER:	18 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The title of the first respondent be changed to Minister for Immigration and Citizenship.

2.The Migration Review Tribunal be joined as the second respondent.

3.The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 385 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SAYEED AKTHER HOSSAIN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGES:	MANSFIELD, LANDER & SIOPIS JJ
DATE:	18 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

1. The appellant is a citizen of Bangladesh. He came to Australia on a Student (Temporary) (Class TU) Subclass 573 (Higher Education Sector) visa granted on 28 July 2003. His visa was subject to Condition 8104 of Sch 8 to the Migration Regulations 1994 (Cth) (the Regulations), which is in the following terms:

   The holder must not engage in work for more than 20 hours a week while the holder is in Australia.

2. The appellant for a period of eight weeks between 6 September 2004 and 25 October 2004 worked for more than 20 hours a week for Smarte Carte Australia Pty Ltd.  His evidence was that he did so through some misunderstanding of Condition 8104, and that after he realised his error he subsequently did not work for more than 20 hours a week.

3. On 2 December 2004, a delegate of the respondent gave him notice under s 119(1) of the Migration Act 1958 (Cth) (the Act) that there appeared to be grounds under s 116(1)(b) of the Act for cancelling his visa, namely a breach of Condition 8104. On 10 January 2005, after considering the appellant’s response, his visa was cancelled. It otherwise would have expired on 19 January 2005. Section 116(3) provides that: “If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.” Regulation 2.43(2)(b) of the Regulations prescribes that, in the case of a visa such as that held by the appellant, if the Minister is satisfied that the visa holder has not complied with Condition 8104, the visa must be cancelled. Consequently, the delegate cancelled the appellant’s visa.

4. The Migration Review Tribunal on 20 April 2005 affirmed that decision.

5. The appellant applied to the Federal Magistrates Court for an order quashing the decision of the Tribunal for jurisdictional error.  On 23 February 2007, a Federal Magistrate dismissed that application.  The Federal Magistrate was asked to conclude that the Tribunal had committed jurisdictional error by focusing on the period of eight weeks between 6 September 2004 and 25 October 2004, rather than averaging the appellant’s working hours over the number of weeks between 28 July 2003 when he entered Australia and the period of inquiry by the delegate of the first respondent.  It rejected that contention.

6. This appeal raises the same issue.  In the matter of Islam v Minister for Immigration and Citizenship [2007] FCAFC 66 we have addressed the same contention and we have rejected it. For the same reasons, we do not consider that the appellant in this matter has shown jurisdictional error on the part of the Tribunal. No other argument was advanced on his behalf on the appeal.

7. Accordingly, his appeal must be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield, Lander & Siopis.

Associate:

Dated:        17 May 2007

Counsel for the Appellant:	Mr R Lancaster with Mr C Bova appeared pro bono
Counsel for the Respondent:	Mr J Potts
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	10 May 2007
Date of Judgment:	18 May 2007