MEHDI v Minister for Immigration
[2005] FMCA 1160
•17 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MEHDI v MINISTER FOR IMMIGRATION | [2005] FMCA 1160 |
| MIGRATION – Review of decision of Migration Review Tribunal – refusal to grant student (Temporary) (Class TU) visa – no jurisdictional error – application dismissed – costs. |
| Judiciary Act 1903 (Cth) Migration Regulations 1994 (Cth) |
| Baidakova v The Minister for Immigration and Multicultural Affairs (1998) FCA 1436 Gurung v The Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 72 |
| Applicant: | RAZA MEHDI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 166 of 2004 |
| Judgment of: | Hartnett FM |
| Hearing date: | 2 August 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 17 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hamilton |
| Solicitors for the Applicant: | Di Mauro Solicitors |
| Counsel for the Respondent: | Ms Riley |
| Solicitors for the Respondent: | Phillips Fox |
ORDER
The application is dismissed.
The applicant pay the respondent's costs fixed in the sum of $6500.
Certify for counsel.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 166 of 2004
| RAZA MEHDI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
On 17 February 2004 the applicant make application to this court to review – pursuant to section 39B of the Judiciary Act 1903 (Cth) – a decision of the Migration Review Tribunal (the Tribunal) made 12 January 2004. The applicant filed contemporaneously an affidavit sworn by him on 16 February 2004. The applicant claimed that the decision of the Tribunal was affected by jurisdictional error; that error being as set out in paragraph 3 of the application. The applicant has filed contentions of fact and law on 6 September 2004 and the respondent has likewise filed contentions of fact and law on 30 September 2004. The respondent has filed a court book.
History
The applicant is a national of Pakistan. He was born on 11 March 1978. He arrived in Australia on 22 July 1998 as the holder of a Student (Temporary) (Class TU) visa, subclass 560 which was valid until 15 August 2000. He was granted a further subclass 560 visa on 15 August 2000 that remained valid until 15 March 2002.
On 15 March 2002 the applicant applied for a subclass 572 student visa. The delegate refused that visa application on 23 April 2002 on the basis that the applicant had not complied substantially with the visa he last held. The applicant applied to the Migration Review Tribunal for review of the delegate's decision and on 12 January 2004 the Tribunal affirmed the delegate's decision.
The respondent's delegate refused the application on 23 April 2002 on the basis that the delegate was not satisfied that condition 8202 as set out in Schedule 8 to the Migration Regulations 1994 (Cth) was satisfied.
Legislation
The provisions dealing with student visas are set out in subclass 572 of Schedule 2 to the Regulations. Regulation 572.212 sets out the criteria to be satisfied at the time of application for a student visa. Relevantly, that provision requires that:
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.
One of the conditions to which the visa last held by the applicant was subject was condition 8202. That condition provides as follows:
(a)in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student the holder is enrolled in a full-time course of study; and
(b)in any other case - the holder is enrolled in a registered course; and
(c)in the case of a holder whose education provider keeps attendance records - the Minister is satisfied that the holder attends for at least 80 per cent of the contact hours scheduled:
(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 and semester of the course; and
(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.
At the time of decision, clause 572.226 requires that the visa applicant must continue to satisfy the criterion in clause 572.212.
In determining whether the applicant had complied substantially with the conditions to which his last visa was subject, the relevant period was 15 August 2000 to 15 August 2002. The applicant had been enrolled in an advanced diploma of computer science at RMIT since July 1998. He provided to the Tribunal a transcript of his results for 2000 and 2001, as well as confirmation of his enrolment for 2002. The applicant's results were 2000: passed 0, failed 6, did not sit 15, withdrawn 13, no record 1; 2001: passed 5, failed 1, did not sit 9, withdrawn 22, exempted 2.
Mr Michael McCann, the head of department, faculty of applied science at RMIT, sent to the Tribunal a facsimile dated 13 December 2002 in which he described the applicant's academic results for 2000 as "very poor" and stated that the applicant's attendance records had not been located for the 2000 year. The facsimile also said that the applicant's academic results were well short of satisfactory for 2001 and his attendance was significantly less than 80 per cent for 2001.
By letter dated 16 January 2003 the Tribunal invited the applicant to comment on the information received from RMIT and to provide evidence of any circumstances that might have adversely affected his academic record in 2000 and 2001. The applicant replied by letter dated 25 February 2003, saying that RMIT had made a mistake with his results due to software problems and he was getting some documents from Pakistan that would show he was entitled to exemptions for certain subjects.
The applicant also said that RMIT did not keep attendance records so they could not say he had unsatisfactory attendance for 2000 and 2001. The applicant was given until 3 April 2002 to provide additional material and he failed to do so.
By letter dated 15 May 2003 the applicant was invited to attend a Tribunal hearing on 10 June 2003. The applicant sought an adjournment of the hearing which was then rescheduled to 17 June 2003. The applicant did not attend on that day but undertook to attend a hearing on 23 June 2003. He did so and gave oral evidence.
The Tribunal hearing
Upon his arrival at the Tribunal the visa applicant lodged a number of documents as referred to in the reasons:
These included 9 laminated documents each of which was entitled RMIT University Transcript of Results. Each of these documents which dealt with the relevant period provided upgraded and what now appeared to be excellent academic results for that period.
The Tribunal member perused the documents and discovered that each document for the relevant period had undergone substantial alteration whereby the allegedly new results, which appeared to have been cut from a genuine RMIT document, had been carefully inserted into the visa applicant's documents, thus substituting excellent results for the previous genuine but poor results awarded by RMIT.
Also lodged was a letter dated 16 May 2003 purporting to be signed by Michael McCann Head of Department Faculty of Applied Science RMIT stating that the visa applicant had contacted him with valid evidence of his academic results and that with this new evidence he finds his results for 2000 and 2001 satisfactory. This letter also stated that his attendance at classes in 2001 was an unsatisfactory 69%. This letter contained misspellings and an unusual letterhead. This letter appeared to contain some paragraphs identical with those in earlier letters from Mr McCann. The signature at the end of the document appeared to the Tribunal to be hesitant.
Also lodged were 2 medical certificates purporting to be from the Royal Melbourne Hospital for the periods 30 July 2001 to 16 August 2001 and for 17 days from 17 July 2001. When the Tribunal perused the documents it found several indications that appeared to indicate that none of these documents were genuine.
The applicant admitted to the Tribunal that the documents lodged on the day of the hearing were forged by the applicant, though a friend had forged the signature on the letter purporting to be from Mr McCann. The applicant stated:
There is no point in lying to you. I got caught -
and that it was -
a good shot.
The applicant admitted that he had forged all the documents including the medical certificates.
The Tribunal's decision
The Tribunal found that the documents lodged by the applicant relating to the relevant period were forgeries. The Tribunal found that the visa applicant did not pass any subjects of his advanced diploma of science studies during the 2000 academic year. The Tribunal found the education provider to be unable to certify that the visa applicant's academic results for semester two of the year 2000 were at least satisfactory. The Tribunal found that the applicant passed seven out of 17 subjects in the 2001 year and found that the education provider did not certify those results as being satisfactory.
The Tribunal did not make a finding regarding attendance as the material provided by RMIT was not entirely clear. The Tribunal took into account that clauses 572.212 and 572.226 did not require strict compliance and that substantial compliance with the conditions to which the visa last held was subject would be sufficient to meet these criteria. The Tribunal referred to the guidelines in PAM, noting the Tribunal was to have regard to circumstances beyond the control of the visa applicant, such as absence or failure due to illness, and whether the visa applicant was able to provide evidence in support of those circumstances, such as medical certificates.
The Tribunal found that the visa applicant had not provided any genuine information of circumstances beyond his control, such as absence or failure due to illness. He had not provided any genuine information regarding his unsatisfactory academic results or attendance. The Tribunal found that because of his previous unsatisfactory attendance and results during the relevant period, he was required to enter into the contract on 1 March 2002 with RMIT.
The Tribunal noted the applicant's presentation of fraudulent documents to it. Apart from those documents the Tribunal found the applicant had not provided evidence that his non-compliance with condition 8202 was due to circumstances beyond his control. The Tribunal found the breach in the case of the applicant was significant. The Tribunal found also that the applicant realised that the breach was significant as evidenced by his production of the forged documents to explain or excuse the breach.
The Tribunal took into account all relevant matters and applied the test in Baidakova v The Minister for Immigration and Multicultural Affairs (1998) FCA 1436 and found that at the time of application the visa applicant had not complied substantially with the conditions of the Student (Temporary) (Class TU) visa, subclass 560, that was held by him during the period 15 August 2000 to 15 March 2002. Thus the Tribunal found that the visa applicant had not complied substantially with the conditions of his last visa held and had failed to meet the requirements of clause 572.212. Accordingly the Tribunal affirmed the decision under review.
Consideration
The applicant contends that the Tribunal ignored a relevant consideration, being the alleged practice that RMIT provided results without commenting upon whether they were satisfactory or not. That contention appeared to be derived from a telephone conversation between a Tribunal officer and the international student officer at RMIT on 6 August 2003 in which the international student officer is alleged to have said:
RMIT give results but don't comment on whether or not they are satisfactory. She said that the Tribunal will need to work this out from his results.
Whatever the practice of RMIT might be, and whatever the international student officer's understanding of that practice might have been, condition 8202 clearly requires that the visa holder:
Achieves an academic result that is certified by the education provider to be at least satisfactory.
In the absence of such a certificate there is not compliance with condition 8202, and subject to the possibility of substantial compliance, an applicant would not satisfy the requirements for a further visa.
In any event it is clear that RMIT did not consider the applicant's results to be at least satisfactory. The applicant's Head of Department sent the Tribunal a facsimile on 13 December 2002, describing the academic results as “very poor” and “well short of satisfactory” for 2001. The international student officer herself when asked in writing, and presumably when RMIT's obligations were explained to her, responded that the applicant -
did not achieve a satisfactory result -
for the 2000 and 2001 academic years.
Accordingly it cannot be said that the Tribunal ignored a relevant consideration.
The applicant alleged the Tribunal made its own findings about whether the applicant's results were satisfactory. That is not what the Tribunal did. It found that RMIT had not certified the results to be at least satisfactory. There was no certificate provided and nor should there have been such a certificate based on the applicant's academic results.
In Gurung v The Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCA 72 Tamberlin J said at paragraph 14:
Condition 8202(d) requires that the holder of the visa achieve an academic result that is certified by the education provider to be at least satisfactory for the course where it runs for less than a semester or, for a course that runs for at least a semester, for each term or semester of the course.
In the present case there was no such certification and in making its finding, the Tribunal has not usurped or encroached upon the province of the educational institution. On its face, it was clearly open to the Tribunal to make a finding that the academic performance of the applicant was not satisfactory having regard to his high failure rate.
Later at paragraph 16:
In the absence of any certification by the university, one of the cumulative requirements of condition 8202 has not been satisfied.
This application concerns the same matters. The reasons of the Tribunal do not disclose any error of law or principle. The applicant was advised by the Tribunal in correspondence of 16 January 2003 of the information obtained by the Tribunal in letter dated 13 December 2002 from Mr Mike McCann, Head of Department of the Faculty of Applied Science at RMIT. The Tribunal informed the applicant that the letter indicated that during the period of his last visa, both his attendance and his results were unsatisfactory.
The applicant was advised that accordingly, the Tribunal may find that he had not complied substantially with condition 8202 during the period of his last student visa. The Tribunal invited the applicant to comment and provide additional information in relation to the letter of 13 December 2002.
I am not persuaded that there has been any breach of natural justice or unfairness in relation to the way in which the Tribunal conducted its proceedings.
The application must be dismissed with costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Hartnett FM.
Associate: Anna French
Date: 17 August 2005.
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