Islam v Minister for Immigration and Border Protection

[2015] FCA 843

FEDERAL COURT OF AUSTRALIA

Islam v Minister for Immigration and Border Protection [2015] FCA 843

Citation:	Islam v Minister for Immigration and Border Protection [2015] FCA 843
Appeal from:	Islam v Minister for Immigration & Anor [2015] FCCA 1124
Parties:	SAIFUL ISLAM v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 484 of 2015
Judge:	NICHOLAS J
Date of judgment:	17 August 2015
Legislation:	Migration Regulations 1994 (Cth) Sch 2 Migration Act 1958 (Cth) s 359A Federal Circuit Court Rules 2001 (Cth) r 13.03C(1)(e)
Date of hearing:	13 August 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	28
Counsel for the Appellant:	The appellant appeared in person
Solicitor for the First Respondent:	Ms M Stone of DLA Piper
Counsel for the Second Respondent:	The second respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 484 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SAIFUL ISLAM
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	17 AUGUST 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal. 

3.The name of the second respondent be amended to “Administrative Appeals Tribunal”.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 484 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SAIFUL ISLAM
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE:	17 AUGUST 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of a Judge of the Federal Circuit Court (Judge Barnes) delivered on 17 April 2015 dismissing with costs an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 3 March 2014.

2. The appellant is a male citizen of Bangladesh.  He applied for a Student (Subclass 572) visa on 20 March 2012.

3. One requirement that the appellant needed to satisfy if he was to be granted the visa which he applied for was imposed by cl 572.235 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). It provided:

   If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

4. The last substantive visa held by the appellant was a Student (Subclass 572) visa valid from 21 June 2011 until 27 September 2012.  The visa was subject to condition 8516 which by cl 572.611 of Sch 2 of the Regulations required:

   The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

5. One of the primary criteria for the grant of a Subclass 572 visa is clause 572.231 of Sch 2 of the Regulations. At the relevant time it provided:

   The applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is:

   (a)       a principal course; and

   (b)of a type that was specified for Subclass 572 visas by the Minister in a Gazette Notice:

   (i)        made under regulation 1.40A; and

   (ii)       in force at the time the application was made.

6. On 4 July 2012, a decision was made by a delegate of the Minister to refuse the appellant’s application for a Student visa on the basis that the appellant had not complied with cl 572.235 and condition 8516 of his previous Student (Subclass 572) visa. On 5 July 2012, the appellant applied to the Tribunal for review of the delegate’s decision.

7. The Tribunal wrote to the appellant by letter dated 23 December 2013, pursuant to s 359A of the Migration Act 1958 (Cth) informing him of adverse information contained in PRISMS records which indicated that, whilst the delegate found the appellant was not enrolled in a course for five months, the PRISMS records indicated that the period of non-enrolment was longer. The letter set out the specific periods of non-enrolment, explained the relevance of the information to the review, and invited the appellant to comment on that information in writing.

8. The s 359A letter requested a response from the appellant by 20 January 2014. On 31 December 2013 the appellant emailed the Tribunal requesting an additional 6 months to provide his comments. In response, the Tribunal provided the appellant with an extension of time to comment on the s 359A letter until 3 February 2014. The appellant’s response to the Tribunal’s s 359A letter was received by the Tribunal on 28 January 2014.

9. The Tribunal made a decision on 3 March 2014 affirming the decision under review.

10. The Tribunal found that it was a criterion for grant of the visa that the appellant had complied substantially with the conditions of the last substantive visa held by him.  The Tribunal found that the last substantive visa held by the appellant was a Student (Subclass 572) visa in effect from 21 June 2011 to 27 September 2012 (ie. a period of 15 months) and that this visa was subject to condition 8516.

11. The Tribunal found that the appellant was enrolled in a Diploma of Accounting when his previous visa was granted on 21 June 2011, but that this enrolment was cancelled on 27 June 2011. It also found that the appellant subsequently enrolled in a Diploma of Information Technology on 22 August 2011 but that this enrolment was cancelled on 23 August 2011. The appellant then enrolled in a Diploma of Information Technology on 14 November 2011 but this was cancelled on 15 November 2011. The Tribunal found that the appellant on 23 April 2012 enrolled in a Certificate IV in Business Administration.

12. The Tribunal accepted that the appellant’s enrolment in a Certificate IV in Business Administration was deferred or suspended on 1 June 2012 for compassionate or compelling reasons.  On this basis it accepted that the appellant was enrolled in a course between 23 April 2012 and 1 June 2012.

13. The Tribunal found that in the period before 23 April 2012 the appellant was only enrolled in a course from 21-27 June 2011, 22-23 August 2011 and 14-15 November 2011 and that the appellant was not enrolled in a course for most of the period between 21 June 2011 and 22 April 2012 (ie. a period of 10 months) and that he was not enrolled in any course between 16 November 2011 and 22 April 2012.  The Tribunal found that there was no claim made by the appellant that he was the subject of a current offer of enrolment in those periods.

14. The Tribunal concluded that the appellant had breached condition 8516 and that this breach was substantial as the appellant had been not enrolled for a period of almost 10 months out of a total period of approximately 15 months and because the breach related directly to the purpose of the visa, namely, to enable the appellant to study in Australia.

15. The Tribunal considered the explanations provided by the appellant for the breach of condition 8516.  The Tribunal accepted that prior to being diagnosed with a brain tumour in April or May 2012, the appellant’s father might have been unwell, however the appellant had not provided any evidence other than to say his father was sick. The Tribunal further accepted that the appellant missed his wife and child (who live overseas) and was upset because they had previously been refused visas.  However, the Tribunal did not believe that the appellant’s concern for his father or missing his wife and child caused him to be unable to be enrolled in a course.

16. The Tribunal also stated that, despite the appellant’s oral evidence to the Tribunal that his own health was adversely affected, no medical evidence had been provided.  It considered that the appellant’s evidence indicated that the main reason he was not enrolled in a course for most of the period from June 2011 to April 2012 was because he found the courses either too hard or did not prefer them, he changed his mind about what course he should undertake, and he was unsuccessful in gaining entry into fashion design.

17. The Tribunal concluded that the appellant had not substantially complied with condition 8516 of his last held visa and that he therefore did not satisfy the criteria for grant of the visa.

18. The application filed by the appellant seeking judicial review of the Tribunal’s decision did not plead any grounds of review.  No amended application was filed by the appellant.

19. A hearing was held before the primary judge on 17 April 2015. The appellant did not attend that hearing. Prior to the hearing, the appellant had sought an adjournment, which was refused by the primary judge. Her Honour had regard to correspondence from the appellant which stated that if the hearing date could not be postponed the Court should make a decision in his absence, and considered it appropriate to conduct the hearing in the absence of the appellant as provided for in r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).

20. Her Honour noted that the application for review did not identify any grounds but nevertheless proceeded to consider the Tribunal’s reasons for decision with a view to ascertaining whether the decision was affected by jurisdictional error.  Her Honour concluded that no jurisdictional error was apparent. Her Honour then dismissed the application with costs.

21. The appeal was listed for hearing before me on 13 August 2015.  In correspondence with the Registry that was exchanged a few days before the hearing was scheduled to take place, the appellant applied for an adjournment.  He relied on a medical certificate that suggested he had a medical problem with his elbow.  There was nothing in the medical certificate to suggest that he was unfit to attend Court for the hearing of his appeal.  At my direction the appellant was informed that he should attend.  He did attend, and made a further application for an adjournment because he was both unwell and not legally represented.  I refused the adjournment as I was not satisfied that the appellant was either unwell or that he had made any adequate attempt to obtain legal representation in advance of the hearing of his appeal. 

22. The appellant’s Notice of Appeal filed on 1 May 2015 does not include any coherent grounds of appeal.  The appellant did not seek to amend that document nor did he seek to rely on any written submissions in support of his appeal. 

23. The task of the Federal Circuit Court in considering the judicial review proceedings brought by the appellant was to determine whether the Tribunal’s decision was affected by jurisdictional error. The task of this Court on appeal is to determine whether the judgment of the primary judge is affected by error.

24. The first respondent submitted it was open to her Honour to proceed in the absence of the appellant pursuant to r 13.03C(1)(e) of the Federal Circuit Court Rules. He says that her Honour’s decision to proceed in this manner was based on the appellant’s invitation to do so in his correspondence to the Court.  This is plainly correct.

25. It is apparent that her Honour gave careful consideration to the Tribunal’s reasons for decision and concluded that no jurisdictional error was shown.  I agree with her Honour’s conclusion. 

26. At the hearing of the appeal, the appellant did not seek to point to any error in the primary judge’s reasoning.  Rather, in his oral submissions to me he suggested that the Tribunal wrongly refused to grant him an adjournment of the hearing. 

27. This complaint was not raised by the appellant in the Federal Circuit Court nor in any document filed in this Court.  In any event, I do not accept that the Tribunal refused him an adjournment.  His hearing was originally fixed for 2 October 2013 and, at his request, the Tribunal granted the appellant an adjournment until 29 October 2013. 

28. The appeal will be dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:

Dated:        17 August 2015