Koppolu v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 430

FEDERAL COURT OF AUSTRALIA

Koppolu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 430

SIVAJI KOPPOLU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 982 of 2003

ALLSOP J
16 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 982 of 2003

BETWEEN:	SIVAJI KOPPOLU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	16 APRIL 2004
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 982 of 2003

BETWEEN:	SIVAJI KOPPOLU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	16 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Migration Review Tribunal (the “Tribunal”) made on 21 July 2003. The Tribunal affirmed a decision of a delegate of the respondent Minister to refuse to grant to the applicant a Student (Temporary) (Class TU) Visa. The application made under s 39B of the Judiciary Act 1903 (Cth) does not indicate any grounds. No written submissions were filed by the applicant, notwithstanding orders made by me on 18 November 2003.

2. The applicant arrived in Australia from India on 15 July 2001.  He was granted a Sub-Class 574 (Masters Level) visa.  One of the conditions of that visa was condition 8202.  That condition required the applicant, amongst other things, to achieve an academic result that was certified by the education provider to be at least satisfactory for each term or semester of the course.

3. On 29 July 2002, the applicant applied for a Student (Temporary) (Class TU) visa.  One of the criteria that needed to be satisfied at the time of the application for this visa was that the applicant had complied substantially with the conditions (if any) to which the visa last held by the applicant was subject.

4. The applicant was enrolled in a Master of Health Science course at the University of Sydney from July 2001 to June 2002.  The academic transcript provided to the Department indicated that the applicant had failed all of the subjects in both 2001 and 2002 and that he had not satisfied requirements for admission to the Master of Health Science (Behavioural Science) by course work.

5. The Tribunal was not satisfied that the applicant had complied substantially with condition 8202 of the visa, which he held at the time the application for the second visa was made.  This finding was based on the academic transcript of the University of Sydney and the applicant’s own evidence that he had ceased to attend that course by April 2002.

6. The Tribunal considered the applicant’s explanation for the poor academic record obtained by him, namely that there were no classes available because of insufficient number of students and subjects relating to his background were unavailable because of lack of lectures.  The Tribunal accepted that the course may have been new and that some subjects may have not been available, but found that there were some subjects and lectures available.  It accepted that the applicant may have found a masters level course difficult.  However, the Tribunal found that these considerations did not absolve the applicant from the fact that he had failed each and every subject attempted in the course.

7. I asked the applicant at the hearing to examine the findings and reasons of the Tribunal found at pages 86 and 87 of the court book.  I asked the applicant whether there was any matter with which he could disagree in those two pages.  The applicant was unable to identify any matter.  In submissions before me, the applicant, in effect, repeated what he had put to the Tribunal about the factual considerations which were dealt with by the Tribunal.

8. I agree with the submissions of Mr Smith for the respondent Minister that the Tribunal applied the correct criteria.  Condition 8202 was, in respect of the visa held up to 29 July 2002, not complied with.  The Tribunal considered not only the academic transcript but also the explanation put to it by the applicant.  There was no apparent unfairness in the procedure adopted.  No jurisdictional error has been shown.  In all the circumstances, I see no alternative but to dismiss the application with costs.

9. The orders will be that:

   1.The application be dismissed.

   2.The applicant pay the respondent’s costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            16 April 2004

The Applicant appeared in person.
Counsel for the Respondent:	Mr Justin Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	6 April 2004
Date of Judgment:	16 April 2004