Khan v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1422

FEDERAL COURT OF AUSTRALIA

Khan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1422

Migration Legislation Amendment (Overseas Students) Act 2000 (Cth), Item 4, Sch 4

JAHANZEB ASLAM KHAN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 844 of 2003

MOORE J
5 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 844 OF 2003

BETWEEN:	JAHANZEB ASLAM KHAN APPLICANT
AND:	MINISTER FOR IMMIGRATION& MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	5 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

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	N 844 OF 2003

BETWEEN:	JAHANZEB ASLAM KHAN APPLICANT
AND:	MINISTER FOR IMMIGRATION& MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	5 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application by Mr Jahanzeb Aslam Khan for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) of 23 June 2003 affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs on 24 February 2003 cancelling the applicant’s Student (Temporary) (Class TU) visa under the Migration Act 1958 (Cth) (“the Act”).

2. The relevant facts as found by the Tribunal may be briefly stated.  The applicant arrived in Australia on 15 January 2000 on a student visa.  It was granted on the basis of his having enrolled in a Bachelor of Engineering course at the University of Wollongong.  He was later granted (in March 2000) a similar visa on the basis of his enrolment in a Bachelor of Computer Science at the same University.  In January 2003 the Department contacted the University to inquire about the applicant’s academic progress.  The Department was informed that the applicant’s academic progress was unsatisfactory for the semesters 1 and 2 of 2000 and semester 2 of 2001.

3. Special legislation was passed in 2000 concerning student visas. Item 4 of Schedule 4 of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) specified conditions to apply to student visas. The amendments operated from 1 December 2000. However sub-item 4(6) provided that the Minister could cancel a visa on the ground that the Minister was satisfied that a specified condition had not been complied with, even if some or all of the non-compliance happen before this item commenced.

4. Item 4 of Schedule 4 of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) relevantly provides:

   Special condition on certain student visas

   (1) This item applies to the following visas (and only those visas):

   (a) all student visas that are in effect when this item commences;

   (b) all student visas that are granted after this item commences but before 1 July 2001.

   (2) Condition 8202 of each visa to which this item applies is taken for all purposes to be as set out in subitem (3), instead of as set out in regulations made for the purposes of section 41 of the Migration Act 1958.

   (3) The condition is that:
   …

   (d) in any case—the holder achieves an academic result that is certified by the education provider to be at least satisfactory:

   (i) for a course that runs for less than a semester—for the course; or

   (ii) for a course that runs for at least a semester—for each term or semester (whichever is shorter) of the course.

   It can be seen that one of the conditions is that the holder of the visa achieves an academic result that is certified by the education provider to be at least satisfactory, relevantly, for each term or semester of the course.

5. In the present case the Tribunal found that the applicant failed to achieve an academic result that was certified by the education provider (the University of Wollongong) to be at least satisfactory for semester 2 of 2000.  For that reason, it cancelled the visa because the applicant had not satisfied one of the conditions.

6. At the hearing in this Court the applicant’s complaint was that semester 2 of 2000 concluded before the legislation imposing the condition came into force.  That is, the semester finished in November 2000.  Accordingly, the Tribunal could not have concluded, the applicant submitted, that a condition was not satisfied by reference to circumstances existing before the law imposing the condition came into force.

7. The difficulty with this submission is that sub-item 4(6) evinces a clear legislative intention that the conditions specified by the amending legislation were to be the yardstick for assessing not only future events and facts, but past events and facts as well, for the purpose of considering whether a visa might be cancelled on the grounds of non-compliance with a condition.  Accordingly the applicant had to comply with item 4 for semester 2 of 2000.  The Tribunal made no error in concluding he had not.  The validity of the sub-item was not put in issue.

8. The application should be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             5 December 2003

The applicant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 November 2003
Date of Judgment:	5 December 2003