Mamun v Minister for Immigration

[2006] FMCA 314

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAMUN v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 314

MIGRATION – MRT decision – refusal of second student visa – Tribunal found no substantial compliance with condition 8202 under previous visa – no failure to consider relevant considerations – no jurisdictional error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474(1), 483A
Migration Regulations 1994 (Cth), Sch.2 item 573.212, Sch.8 item 8202

Kim v Witton (1995) 59 FCR 258
Minister for Immigration & Multicultural Affairs v Modi (2001) 116 FCR 496

Applicant: MOHAMMED ABDULLAH‑AL MAMUN

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG1965 of 2005

Judgment of: Smith FM

Hearing date: 24 February 2006

Delivered at: Sydney

Delivered on: 24 February 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $5,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1965 of 2005

MOHAMMED ABDULLAH‑AL MAMUN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 25 July 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) handed down on 1 July 2005.  The Tribunal affirmed a decision of a delegate made on 28 October 2004 to refuse an application by the applicant for a Student (Temporary) (Class TU) visa, which the applicant had applied for on 26 August 2004. 

2. The applicant had previously studied in Australia on a similar visa, under which he had been enrolled initially in the University of Southern Queensland, Sydney Education Centre, in Surry Hills, Sydney (“USQ”), from the third semester of 2002 through to the first semester of 2004.  The delegate and the Tribunal had evidence from USQ showing that, of 18 subjects for which he had enrolled, he had passed only two, and that in the opinion of the university he had not made “satisfactory academic progress” in any of the semesters in which he was enrolled. 

3. The issue upon which the delegate, and then the Tribunal, determined that he was not eligible for his new visa was his failure to meet a criterion found in Sch.2, item 573.212 of the Migration Regulations 1994 (Cth) (“the Regulations”).  This required at the time of application: 

   573.212If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject. 

4. Since his previous visa had not expired at the time of his visa application, the conditions attaching to that visa had to be addressed under this criterion. The significant conditions to which his old visa were subject were found in condition 8202, in a form then found in Sch.8 to the Regulations. Relevantly, that item contained the condition that:

   8202(3)     A holder meets the requirements of this subclause if:  … 

   (b)in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory; … 

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

5. In its statement of reasons, the Tribunal identified the relevant legislation, and also identified relevant authorities concerning the interpretation and application of the test of “complied substantially with the conditions” to which a visa was subject.  Specifically, it noted authorities discussed in Minister for Immigration & Multicultural Affairs v Modi (2001) 116 FCR 496 (“Modi”).  In Modi, it was accepted by the Full Court that it might be relevant when considering substantial compliance with condition 8202, for a Tribunal to consider the nature of the visa holder’s relevant conduct broadly, including considering explanations for breaches and the state of mind of the holder.  Reference was made in Modi to a non‑exhaustive list of possibly relevant circumstances taken from the judgment of Sackville J in Kim v Witton (1995) 59 FCR 258. In that case, Sackville J was not addressing compliance with condition 8202, but compliance with a different type of visa condition involving restrictions on work. For myself, I have difficulty seeing how some of the considerations referred to by Sackville J could be given significance when assessing “substantial compliance” with condition 8202. The Full Court in Modi might have had similar reservations, since they agreed at [22] that “it is not right to regard those cases as establishing any “test””, and at [19] they held that the considerations listed by Sackville J “were not to be elevated to the status of relevant considerations in every case”. 

6. The present Tribunal said that Modi required that “the circumstances of the case will determine the statutory duty of the decision‑maker, and there is no rigid test”.  In my opinion, this did not reflect any error of law nor misunderstanding of the effect of relevant judicial interpretations. 

7. The Tribunal then identified the relevant evidence going to compliance with the relevant condition in 8202, being the communications from the USQ.  It said: 

   27.The Tribunal finds that the University has not certified that the visa applicant achieved an academic result that is at least satisfactory for each of those semesters.  The Tribunal finds that the University has not certified that the visa applicant achieved an academic result that is at least satisfactory for each semester of his course.  (Tribunal’s emphasis) 

   28.The Tribunal finds that the visa applicant therefore breached condition 8202 of his visa. 

8. In my opinion, those findings properly addressed compliance with the relevant condition, and reached a finding of breaches of condition 8202 which was correct both in fact and law. 

9. In relation to whether the breaches should be assessed as showing compliance “substantially” with the visa conditions, the Tribunal addressed all the matters raised with it by the applicant in several written submissions and in evidence to the Tribunal at a hearing which he attended.  On the material before me, I am not persuaded that the Tribunal overlooked any material point which had been raised by the applicant, when it summarised his contentions:  

   29.The visa applicant indicated amongst other things in submissions and at the hearing that: 

   ·He at first found it difficult to cope with conditions in Australia. 

   ·His study at the University was affected by poor educational resources.  The standard of academic staff was poor. 

   ·He brought his wife to Australia and she had a child here.  This disrupted his study. 

   ·His father had a heart attack and so he returned to Bangladesh. 

   ·He wanted to change Universities but for various reasons was not able to. 

   ·He has subsequently performed well at CQU. 

10. The Tribunal then concluded:  

    30.There is no compelling evidence before the Tribunal which shows that the University had such poor educational resources that students, including the visa applicant, were unable to study at the University.  It is reasonable to consider that the visa applicant was able to seek a new education provider if he was dissatisfied with the University.  The visa applicant did not breach condition 8202 because of incorrect advice given by the Department.  The visa applicant breached condition 8202 in each of 5 semesters.  The breach of condition 8202 was significant. 

    31.After considering the legislation, policy considerations and available evidence cumulatively, the Tribunal finds that the visa applicant has not complied substantially with condition 8202 of his visa.  The Tribunal finds that the visa applicant has not complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject.  The Tribunal finds that the visa applicant does not satisfy clause 573.212.  (Tribunal’s emphasis) 

11. Although the Tribunal has not discussed each of the explanations put forward by the applicant individually, I do not consider that it has failed to take them into account so far as they could have a bearing on the question raised for the Tribunal by item 573.212.  In the face of the applicant’s academic record, it would have been difficult, if not impossible, for any Tribunal to have arrived at any different conclusion, whatever explanations were provided.  I am not persuaded that the Tribunal has failed to address any matter which it was legally required to address or has misunderstood the question it had to ask itself when affirming the delegate’s decision. 

12. The application for review filed in this Court contains claims of failure of procedural fairness because the applicant was denied “the opportunity to put their case as required and to explain the situation which was beyond my control”.  However, I am not persuaded that there was any denial of procedural fairness, nor that the Tribunal did not afford the applicant the opportunity referred to.  Indeed, it is plain to me that the Tribunal allowed the applicant every opportunity to put before the Tribunal, both in writing and orally, his explanations for his bad results, and all his arguments as to why it should not find that he had not “complied substantially with the conditions” to which his earlier visa was subject. 

13. Other general claims of jurisdictional error are alleged in the application, but these are unparticularised, and I can find no substance in them. 

14. The applicant’s amended application repeats the complaint of failure of procedural fairness, but without particulars.  It also complains: 

    The tribunal has acted on bad faith and therefore was committed jurisdictional error.  The tribunal failed to exercise its discretion in relation to the applicant’s poor academic performance during his previous study period in Australia. 

15. There is no substance to the suggestion of bad faith. 

16. The suggestion that the Tribunal had a “discretion” to overlook the applicant’s poor academic performance reflects an incorrect understanding of the legal criteria which the Tribunal was obliged to address.  They did not give the Tribunal a discretion to overlook a failure to comply substantially with the conditions of the visa.  To such extent that the test of “complied substantially” allowed a qualitative assessment of the non‑compliance with the visa condition, in my opinion the Tribunal took into account all relevant considerations that it was obliged to, in particular, by assessing the extent and nature of the non‑compliance, and by considering the various matters which had been put to it by the applicant. 

17. The amended application also contends: 

    The tribunal was acted on bad faith because the decision was influenced by the delegate’s decision and therefore erred at law in failing to consider the applicant’s subjective state of mind in considering whether or not the applicant had satisfied the criteria for the grant of student visa.  

18. If this is a contention that the Tribunal abrogated its duty to form its own independent opinion on the applicant’s satisfaction of the statutory criteria, it has no substance and I do not accept it.  It is clear in my opinion that the Tribunal has addressed the matter afresh, and has applied its own judgment to the issues before it. 

19. The applicant in a written submission, and orally to me today, suggested that the Tribunal erred by failing to take into account his desire to continue in Australia and to complete studies which he enrolled in after his unsuccessful study at the USQ.  He argued that the Tribunal should have taken into account the hardship which would flow from his being prevented from completing that course and not being able to continue in Australia.  I am unpersuaded that the Tribunal overlooked these matters.  They were largely irrelevant to the criterion addressed by the Tribunal, and they are clearly irrelevant to my own consideration of the matter. 

20. Two specific contentions were made by the applicant in his submissions to me today.  One was that the Tribunal failed to consider that his reasons for not complying substantially with condition 8202 were “beyond my control”.  It is unclear to me that this proposition was put to the Tribunal.  However, the various matters which were put to the Tribunal were explained to it in written submissions which concluded with a submission that “I realize that my performance was not good, but it was because of the unforseen and unfortunate circumstances”, which might be regarded as suggesting that they were beyond control. 

21. In its discussion which I have extracted above, the Tribunal certainly considered what the options were available to the applicant while he was unsuccessfully studying at USQ.  It does not expressly address whether in fact all the reasons for all his failures were “beyond my control”, although it appears to consider that some of them were not.  However, I do not consider the Tribunal was obliged to discuss that point as a separate issue.  As I have indicated above, I am not persuaded that the Tribunal failed to consider any of the matters put to it by the applicant, including his general characterisation of his explanations for his failures, when forming its assessment of whether he had complied substantially with condition 8202. 

22. A second contention put to me was that the Tribunal was mistaken when stating that “the visa applicant breached condition 8202 in each of five semesters”.  He claimed that, in fact, he had been enrolled for only four semesters and that the communication from the USQ which the Tribunal has relied upon as showing unsatisfactory progress in five semesters was incorrect. 

23. In my view, it is unnecessary for me to form an opinion on whether indeed the Tribunal’s factual statement was or was not correct.  The finding appears to have been open to the Tribunal on the material before it, since it had evidence from USQ suggesting that there was unsatisfactory progress in five semesters.  Moreover, if the Tribunal was mistaken in thinking that the applicant’s study occurred in five semesters as distinct from four, then in my opinion this mistake did not go to the exercise of the Tribunal’s jurisdiction, since it was immaterial.  It was uncontested by the applicant that his progress in all semesters in which he was enrolled was not satisfactory in the eyes of the university, and it was uncontested that his academic record showed an almost unbroken history of failures.  I do not consider that whether the breach of condition 8202 involved five semesters or four semesters was material to the Tribunal’s decision. 

24. For the above reasons, I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error. Its decision was therefore a privative clause decision within s.474(1) of the Migration Act. That provision limits the Court’s powers conferred under s.483A of the Migration Act and s.39B of the Judiciary Act 1903 (Cth), so that I have no power to grant remedy in the absence of jurisdictional error. The consequence is that I must dismiss the application.

I certify that the preceding twenty‑four (24) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  8 March 2006