MD Assaduzzaman v Minister for Immigration - [2004] FMCA 484

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MD ASSADUZZAMAN v MINISTER FOR IMMIGRATION

[2004] FMCA 484

MIGRATION – Review of decision to affirm decision to cancel Student (Temporary) (Class TU) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 499

Migration Legislation Amendment (Overseas Student) Act 2000, Condition 8202, Item 4 of Sch 4

Migration Regulations 1994 (Cth), Item 1222 of Sch 1, Parts 572 & 573 of Sch 2, cl 8202 of Sch 8

Procedures Advice Manual 3

Migration Series Instructions

Minister for Immigration & Multicultural Affairs v Hayman (1999) FCR 120
Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436

Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578

Minister for Immigration & Multicultural & Indigenous Affairs v Modi [2001] FCA 1656
SAAT v Minister of Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 345
Paul v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1196

Applicant:

MD ASSADUZZAMAN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 736 of 2003

Delivered on:

24 September 2004

Delivered at:

Sydney

Hearing date:

5 August 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Solicitor for the Applicant:

Mr Sabelberg

Counsel for the Respondent:

Ms Riley

Solicitors for the Respondent:

Clayton Utz

ORDER

The application is dismissed.
The applicant pay the respondent’s costs set in the amount of $6,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 736 of 2003

MD ASSADUZZAMAN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This judgment arises from an application filed by the applicant on 8 July 2003 seeking judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) on 12 June 2003 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a Student (Temporary) (Class TU) subclass 573 visa.

The history

The applicant is a citizen of Bangladesh. He entered Australia on 2 July 2000 as the holder of a Student (Temporary) (Class TU) (subclass 560) visa, issued on 26 June 2000 and valid until 28 July 2002. On 18 July 2000 a further Student (Temporary) (Class TU) (subclass 560) visa was issued to the applicant, valid until 28 June 2002. This was the visa held at the time the applicant applied for a Student (Temporary) (subclass 573) visa on 25 June 2002. Attached to each visa was condition 8202. This condition required, summarily, that student visa holders attend for at least 80% of the contact hours scheduled for their course of study and achieve satisfactory results. Since the date of application the applicant has held a bridging visa granted on the basis of the application for a visa the subject of this review.
The applicant was enrolled in a Certificate IV Course in Information Technology at the Northern Melbourne Institute of TAFE (“NMIT”) for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read MD Assaduzzaman v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] FMCA 484
Decision Date: 24 September 2004

CaseChat Overview and Summary

The case of MD Assaduzzaman v Minister for Immigration and Multicultural and Indigenous Affairs pertains to an application for judicial review of a decision by the Migration Review Tribunal (the Tribunal) affirming the cancellation of a Student (Temporary) (Class TU) subclass 573 visa. The applicant, a citizen of Bangladesh, had entered Australia on a subclass 560 visa and subsequently applied for a subclass 573 visa, which was refused by the delegate of the Minister. The Tribunal upheld the delegate's decision, leading the applicant to seek judicial review in the Federal Magistrates Court. The legal issues central to the case revolve around whether the Tribunal's decision was made without jurisdiction, affected by jurisdictional error, or if it failed to consider relevant material. The applicant argued that the Tribunal misinterpreted the criteria for the visa and did not adequately consider his claims and evidence.

The court examined the statutory framework governing the issuance and cancellation of student visas, including the Migration Act 1958, the Migration Regulations 1994, and the relevant procedural advice. It also considered the Tribunal's authority to review visa decisions and the criteria for determining substantial compliance with visa conditions. The court highlighted that the Tribunal's role is limited to reviewing decisions made by the Minister or the delegate and cannot consider applications for visas not specified in the original application. In this case, the applicant had applied for a subclass 573 visa, which requires enrolment in a degree course, whereas he was enrolled in a diploma course, making him ineligible for the visa he applied for. The court concluded that the Tribunal's decision did not suffer from jurisdictional error as it correctly focused on the visa subclass applied for by the applicant and assessed the applicant's compliance with the visa conditions. The court found that the Tribunal had adequately considered the applicant's claims and evidence and that there was no substantial compliance with the visa conditions due to the applicant's unsatisfactory academic performance in one term. The application for judicial review was dismissed, and the applicant was ordered to pay the Minister's costs.

Orders