Matam v Minister for Immigration (No.2)
[2005] FMCA 4
•14 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MATAM v MINISTER FOR IMMIGRATION (No.2) | [2005] FMCA 4 |
MIGRATION – Migration Review Tribunal – student visa – no jurisdictional error.
Migration Act 1958, s.474
Matam v Minister for Immigration [2004] FMCA 1039
VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255
| Applicant: | ANIL NATH RAVIKOTI MATAM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1108 of 2003 |
| Delivered on: | 14 January 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 16 December 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr. C. G. Fairfield |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application be dismissed.
The Applicant shall pay the Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1108 of 2003
| ANIL NATH RAVIKOTI MATAM |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant by an application filed in the Federal Court on 22 August 2003 seeks to review a decision of the Migration Review Tribunal (the MRT) dated 28 July 2003. The application before the Federal Court was the subject of orders by Marshall J on 7 October 2003 which required the applicant to file and serve an amended application providing proper particulars of the grounds relied upon on or before 24 October 2003 and to file and serve a supplementary book of documents by the same date, with the applicant to further file contentions of fact and law on or before 7 November 2003. The Federal Court otherwise transferred the application to this court.
Upon transfer to this court the application was listed for hearing initially on 19 October 2004 and then re-fixed for16 December 2004.
At the commencement of this hearing application was made by the applicant for an adjournment of this application and that matter has been dealt with in a separate decision (Matam v Minister for Immigration [2004] FMCA 1039).
Whilst the applicant has in part complied with the orders made by Marshall J by the filing and service of contentions of fact and law, albeit approximately two weeks late, he has not otherwise sought to provide a further amended application for order to review. The application therefore currently before the court filed on 22 August 2003 is the one which is to be relied upon in this instance. It is noted that in that application for order to review the applicant claims to be aggrieved by the decision of the MRT in that it did not consider all the facts behind the unintentional breach of condition 8202, which was claimed by the applicant to be "beyond my control". He further states that:
“The MRT could not rely on the results of the first semester of my current course as the result of only one out of the three subjects studied had been released at the time of the hearing”.
The grounds set out in that application refer to the following:
“(1)The misguidance, confusion and changing of universities over a period of time resulted in me not being able to choose a suitable course. Lack of guidance contributed in me choosing the courses not relevant to my educational background. The technical aspect of the subjects, which I was never good at, showed a result which is quite different to what I am capable.
(2) The deteriorating health of my mother was a concern to me at the time, which was a distraction for my studies and caused a lot of distress.
(3) After a lot of research on the courses and the subjects offered I got enrolled in the current course at the Central Queensland University which is relevant to my educational background and the results have been very satisfying since the time I joined. I could not provide this to the MRT as the results were pending at the time of the hearing. MRT could only consider the poor results shown from the course at La Trobe University where the subjects were not relevant to my education and work experience.
(4) My education and work experience in India and the results of my current course also prove that the results in La Trobe University were circumstantial and I never deliberately flouted the condition of my visa”.
It should be noted by way of further introduction that the applicant appearing before the court this day advised the court that he has now in fact successfully completed a master’s course and is simply awaiting the convocation ceremony to take place in 2005.
By way of further background it is noted that the applicant is a male national of India. He entered Australia on 27 February 2000 on a student (temporary) (class TU) subclass 560 visa granted on 31 December 1999 valid until 23 March 2000. On 23 March 2000 he was granted a further student subclass 560 visa valid until 26 February 2001. On 26 February 2001 the applicant was granted a further subclass 560 visa valid until 17 August 2002. The last of those two visas relevantly contained condition 8202. On 25 March 2002 the applicant applied for a further student (temporary) (class TU) visa. On that application form in answer to a request to tick the box next to the subclass visa "appropriate to your principal course" the applicant ticked the box next to subclass 574 ("masters and doctorate section"). On 8 July 2002 the application was refused by a delegate of the respondent.
On 30 July 2002 the applicant applied for review of that decision by the MRT. On 15 July 2003 the applicant attended a hearing of the MRT and he gave evidence. By its decision dated 28 July 2003 the MRT affirmed the decision of the delegate. It is clear from the applicant's contentions of fact and law that he has referred to a number of factual matters which, in my view, were properly before the MRT. It is equally clear that on a proper reading of the MRT's decision it had as a matter of law correctly considered the appropriate factual material and significantly came to the conclusion referred to in paragraph 29 of its decision as follows:
“The tribunal has considered the totality of the evidence before it. The tribunal notes that the visa applicant has faced many difficulties. He was not well treated by the AITCI and like many other overseas students treated poorly. This consequently meant difficulties in finding a new course. He has had problems with his mother's health. The tribunal is not unsympathetic to these problems. However, in the relevant visa period over the two semesters of 2001 the visa applicant only passed one subject and failed six. Even making allowance for the problems, this could not be said to be substantial compliance. Therefore the tribunal must find that the visa applicant did not comply substantially with the conditions of the visa and consequently does not satisfy clause 574.212”.
It is clear to me that that is a crucial finding in this matter based upon an earlier recital in the MRT's decision of the relevant facts and circumstances presented to it by the applicant which have been largely repeated before the court this day. The MRT properly considered that clause 574.212 does not require strict compliance and that substantial compliance would be sufficient to meet the criteria. Hence, it applied the correct test. It seems further to me that it has applied that test to the appropriate period of time and it then had before it evidence of the kind referred to demonstrating that in the relevant period, namely, the two semesters of 2001, the applicant had only passed one subject and failed six at La Trobe University. The applicant concedes that that is accurate.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
The respondent submits that in the circumstances the grounds, which are unparticularised, provide no prayer for relief. The remedies sought in the applicant's contention are that the decision be reviewed and the application for student (temporary) (class TU) visa be granted. Similarly before this court the applicant has simply asked for the visa to be reinstated. It was submitted by the respondent that even if the court were to be of the view that the MRT disclosed jurisdictional error of a kind to preclude s.474 of the Migration Act 1958 (the Migration Act) from protecting the decision, it is submitted the appropriate remedy be for the matter to be remitted to the MRT for consideration upon the merits. That is clearly a correct contention but in the circumstances of this case it is unnecessary for me to further comment upon that matter.
On a proper reading of the MRT's decision in my view it has properly considered the facts before it and exercised a discretion open to it on the evidence having applied the correct tests and referred to the appropriate material. I cannot see any basis upon which this court could conclude that there has been jurisdictional error of a kind which would attract a judicial review of the decision.
It is clear to me that the applicant is aggrieved by the decision perhaps on the basis that insufficient allowance was made for the relevant academic record and his poor performance at La Trobe University in the two semesters in 2001. That, however, is not sufficient to attract judicial review of the MRT decision, nor is it relevant for this court to take into account at the date of this hearing the fact that the applicant has now successfully completed a master’s course elsewhere.
For those reasons it follows that the application should be dismissed with costs.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of McInnis FM
Deputy Associate: Brooke Evans
Date: 14 January 2005
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