Kasem, Abed-Allah v Minister for Immgration and Multicultural Affairs

[1998] FCA 233

FEDERAL COURT OF AUSTRALIA

MIGRATION - student visa - application for review of decision of Immigration Review Tribunal to cancel visa under s 116(1)(b) Migration Act 1958 (Cth) for breach of visa condition by failing to complete English course - whether error of law

PRACTICE AND PROCEDURE - whether applicant identified any error of law in further and better particulars - whether application should be dismissed pursuant to O 20 r2 and O 54B r5 of the Federal Court Rules for failure to disclose reasonable basis for application

Migration Act 1958 (Cth): s 116, s 476(1)(e)

Pt 8

Federal Court Rules:  O 20 r2, O 54B r5

ABED-ALLAH KASEM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

QG 156 of 1997

GOLDBERG J
MELBOURNE
26 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 156 of 1997

BETWEEN:	ABED-ALLAH KASEM Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	26 FEBRUARY 1998
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for review filed by the applicant on 3 October 1997 be dismissed.

1. The applicant pay the respondent’s taxed costs for the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 156 of 1997

BETWEEN:	ABED-ALLAH KASEM Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GOLDBERG J
DATE:	26 FEBRUARY 1998
PLACE:	MELBOURNE

EXTEMPORE REASONS FOR JUDGMENT

HIS HONOUR:   The applicant applies to the Court by application filed on 3 October 1997 to review the decision of the Immigration Review Tribunal (“the Tribunal”) made on 9 September 1997 whereby the Tribunal affirmed the decision of the delegate of the Minister to cancel the applicant’s sub‑class 560 student (temporary) visa.  The applicant, who was born in Jordan, came to Australia on 15 April 1997 as the holder of a class TU student visa, sub‑class 560, granted to him in Jordan to enable him to study English at the Griffith University English Language Institute on the Gold Coast. 

The visa, which gave him permission to remain in Australia until 20 August 1997, was subject to conditions which included condition 8202 in schedule 8 of the regulations that provided that the holder must satisfy the course requirements. On 19 June 1997 the Department wrote to the applicant advising that it was considering cancelling his visa on the basis that he may not have complied with condition 8202. On 22 July 1997 the applicant was handed, by an officer of the department, a notification of cancellation under s 116 of the Migration Act 1958 (Cth) (“the Act”) and the reasons for the cancellation which included the following statement:

“The department has decided that there is a ground for cancellation of your visa under paragraph 116(1)(b) of the legislation, namely you have failed to satisfy course requirements by not attending the university.”

The Tribunal analysed the evidence before it and properly, in my view, identified the relevant questions of law and made a number of findings of fact.  The Tribunal found that there were grounds for the cancellation of the visa and that there was evidence before it on which it was able to make such findings.  The Tribunal then addressed the question whether the discretion to cancel the visa should be exercised and, on the facts before it, the Tribunal concluded that given that the visa which the applicant held was granted specifically to enable him to attend the course at Griffith University, his breach of the visa conditions was fundamental and that on the evidence before the Tribunal the applicant had not then, and never had been, enrolled in any other course.  Although he had been offered places in other courses, he had been unable to take them up because, according to his evidence, he was unable to pay the requisite fees. 

This matter was amplified before me at the hearing this morning by the applicant because the fees which he had paid for the Griffith University English language course, which he said he did not need to undertake, had not been refunded to him. The gravamen of his complaint then, and today, is that the money has not been repaid to him. On the basis of those findings, the Tribunal affirmed the decision under review to cancel the visa. In his application for review before this court, the applicant set out that he was aggrieved by the decision and I find that he was so aggrieved. The grounds of his application, which he was obliged to set out under Pt 8 of the Act, were:

“The decision involved an error of law being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.”

The matter came on for hearing for directions before Kiefel J in Brisbane on 12 December 1997 and Her Honour ordered that the applicant file and serve further and better particulars in response to any request by the respondent by 30 January 1998.  The respondent requested further and better particulars of what was the applicable law which it was alleged the Tribunal had misinterpreted, in what manner was it alleged that the Tribunal misinterpreted the law, what were the facts as found to which it was alleged the Tribunal incorrectly applied the law and finally in what manner was it alleged that the Tribunal incorrectly applied that law to the facts.

The applicant responded to that request by a letter on 21 January 1998 in which he set out in considerable detail the facts which had been referred to by the Tribunal and in which he had said to the Tribunal, and which he repeated before me this morning, that he had not felt the need to study the English course because he understood English and he instead wanted to enrol for the Master of Nursing course.  However, on a careful reading of that letter he does not identify or respond to the matters referred to in the request and on a fair reading of that letter, nowhere is there identified an error of law which it is said the Tribunal made.

It must be remembered, as I said to the applicant in argument, that the task of this Court is limited. As Ms Ellis, who appeared for the respondent submitted, and the learning is clear, it is not the task of this Court to undertake a merits review of the case. I cannot rehear the case and determine the facts for myself. I am limited, in particular by sub‑s 476(1) of the Act to considering an application to review the decision of the Tribunal on one or more of the grounds there set out. The relevant ground identified by the applicant in this application was that provided by sub‑para (e) of s 476(1):

“That the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision whether or not the error appears on the record of the decision.”

The applicant was given the opportunity and was required, to specify his error of law but he has been unable to do so.  And as a result, the respondent has moved by motion for an order that the application for review be dismissed pursuant to O 20 r2 and O 54B r5 of the Federal Court Rules on the ground that no reasonable basis for the application is disclosed and an order is sought that the applicant pay the respondent’s costs.

The matter is unfortunate and certainly regrettable for the applicant, but I cannot, as a matter of law, deal with his complaint that his money has not been given back to him.  That is a matter for him to take up with the University or the Departmental and Immigration authorities if they can be of assistance.  It is no part of the task, indeed the jurisdiction of this Court, to respond in effect to the plea by the applicant.

The learning in relation to whether I can exercise my jurisdiction under O 20 r2 is clear and I am entitled to exercise that jurisdiction if no reasonable basis for the application is disclosed.  I am satisfied on the basis of the material before me that no reasonable basis for the application is disclosed.  I appreciate that the applicant has not had the benefit of legal assistance but he has not been able to identify an error of law as he specifies in his application.  Notwithstanding that, I have undertaken the task myself of seeing, notwithstanding his inability to give me legal assistance, whether in fact there is such an error of law and I have read the Tribunal’s reasons with that in mind.

The findings of fact which the Tribunal made were open to it on the evidence and, in my view, the Tribunal was entitled on the evidence to reach the conclusion it did.  On a careful reading of the Tribunal’s decision I have formed a clear view that there was no error of law disclosed, either as to an interpretation or application of the law or an understanding of the law or an application of the facts to the law as found by the Tribunal.  In all those circumstances, in my opinion, I should accede to the motion filed on 19 February 1997 by the respondent. 

The order of the Court will be that the application for review, filed by the applicant on 3 October 1997, be dismissed and there will be a further order that the applicant pay the respondent the respondent’s taxed costs of the application. 

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg

Associate:

Dated:                March 1998

For the Applicant:	Applicant appeared in person
Solicitor for the Respondent:	Ms J A Ellis Australian Government Solicitor
Date of Hearing:	26 February 1998
Date of Judgment:	26 February 1998