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Kabir v Minister for Immigration

Kabir v Minister for Immigration

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

KABIR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 132

MIGRATION – Migration Review Tribunal – student visa – whether completed substantial part of course – whether undertaken at least five years study in English – whether jurisdictional error – discretion to refuse prerogative relief.

WORDS AND PHRASES – “substantial” – “substantial part” – “successful completion” – “year” – “of study”.

Acts Interpretation Act 1901 (Cth)
Calendar (New Style) Act, 1750 (UK), s.1
Interpretation Act 1984 (WA), ss.5, 62(1)
Migration Act 1958 (Cth), s.476
Migration Regulations1994 (Cth), regs.1.03, 1.15F, 2.26A(7A), Schedule 2, cls.105.230, 126.228, 132.212; 134.222, 137.111, 138.111; 139.111, 160.213, 160.217, 161.111, 162.212(2), 162.212(3), 163.212(a), 163.215, 485.228, 496.111, 496.215(2)(a)(i) and (b)(i) and (iii), 570.111, 571.111, 573.111, 574.111, 575.111, 573.223(2)(a)(i)(A), 576.111, 862.216(2)(a)(i) and (b)(i) and (iii), 863.217(2)(a)(i) and (b)(i) and (iii), 880.229, Schedule 5A, cls.5A309, 5A504(1)(a)(ii), 5A504(1)(d)(iii), 5A504(1)(e)(ii)

A Waugh, Time. From Micro-Seconds to Millennia: A Search for the Right Time (London: Headline Book Publishing, 1999)
Osborn’s Concise Law Dictionary (10^th Edn) (London: Sweet and Maxwell, 2005)
The Shorter Oxford Dictionary on Historical Principles, (Oxford: Clarendon Press, 1973)

Applicant:

AHSANUL KABIR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 220 of 2009

Judgment of:

Lucev FM

Hearing date:

25 February 2010

Date of Last Submission:

25 February 2010

Delivered at:

Perth

Delivered on:

5 March 2010

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondents:

Mr P Macliver

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 220 of 2009

AHSANUL KABIR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Mr Kabir, applies to the Court under s.476 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 132
Decision Date: 5 March 2010

CaseChat Overview and Summary

The case of Kabir v Minister for Immigration involved the applicant, Mr. Kabir, who sought judicial review of a decision made by the Migration Review Tribunal (MRT) concerning his student visa. The primary issue was whether Mr. Kabir had completed a substantial part of his course of study, and whether he had undertaken at least five years of study in English. The Tribunal had found that Mr. Kabir had not met the requirements of his student visa, leading to the cancellation of his visa. Mr. Kabir challenged this decision, arguing that the Tribunal had erred in its interpretation of the relevant statutory provisions and that the decision was unreasonable.

The legal issues before the court included the interpretation of the term "substantial" as it applied to the completion of a course of study and the meaning of "year of study" in the context of the visa requirements. Additionally, the court needed to determine if the Tribunal had made a jurisdictional error in its interpretation and application of the legislation. The court also had to consider the appropriate exercise of discretion in deciding whether to grant prerogative relief in the form of a writ of mandamus or prohibition.

In examining the issues, the court found that the Tribunal's interpretation of the statutory language was consistent with the ordinary meaning of the words. The court held that the Tribunal was correct in its assessment that Mr. Kabir had not completed a substantial part of his course of study and had not undertaken at least five years of study in English. The court further determined that there was no jurisdictional error in the Tribunal's decision, and therefore, it was not appropriate to exercise the discretion to grant prerogative relief. The application for judicial review was dismissed, affirming the Tribunal's decision.

Orders

Orders of the court

That the application be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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