Nayeem v Minister for Immigration - [2010] FMCA 980

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAYEEM v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 980

MIGRATION – MRT decision – skilled provisional on-shore visa – 2 year study requirement – completion of course ‘as a result of a total of at least 2 academic years study’ – criterion addresses more than period of attendances – student using credits for overseas study –Tribunal considered usual full-time workload over 2 academic years – no jurisdictional error – application dismissed.

Acts Interpretation Act 1901 (Cth), s.15AB(1)(a)
Legislative Instruments Act 2003 (Cth), s.13(1)(a)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), reg.1.15F, Sch.1, Sch.2, cl.485.213

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
Saeed v Minister for Immigration & Citizenship (2010) 84 ALR 507

Applicant:

NAZRATAN NAYEEM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1216 of 2010

Judgment of:

Smith FM

Hearing date:

22 November 2010

Delivered at:

Sydney

Delivered on:

23 December 2010

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Parish Patience

Counsel for the Respondents:

Ms A Mitchelmore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1216 of 2010

NAZRATAN NAYEEM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ms Nayeem’s application turns upon the meaning of a visa criterion which required her to have gained a qualification awarded by an Australian educational institution “as a result of a course … that (was) completed as a result of a total of at least 2 academic years study” undertaken in Australia. Ms Nayeem argues that this is satisfied by the period actually occupied by her Australian studies, which lasted four semesters between 27 February 2006 and 19 December 2007. However, the Tribunal said that the criterion required it to consider the amount of her studies during her period of attendances at the Australian institution, and not merely the period over which they were undertaken. Ms Nayeem had been given 24 credit points towards the required 96 credit points for her degree, based upon her earlier studies in Bangladesh. This meant that in Australia she studied 12 subjects rather than the usual 16. The Tribunal held that she did not meet the ‘2 year study requirement’ for an on-shore skilled visa. For the reasons which follow, I have concluded that the Tribunal made no jurisdictional error.
Ms Nayeem obtained a degree of Bachelor of Business Administration at the University of Dhaka in November 2005. She enrolled at the University of Technology, Sydney in a course described as ‘Master of Business Administration (Limited Work Experience)’. She commenced her Australian studies on 27 February 2006, and completed the course on 19 December 2007. Her academic record shows that at the commencement of her course she was credited with 6 points for each of…

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 Nayeem 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: [2010] FMCA 980
Decision Date: 23 December 2010

CaseChat Overview and Summary

The case of Nayeem v Minister for Immigration was heard in the Federal Circuit Court, with Nayeem as the applicant seeking a review of a decision by the Minister for Immigration. The applicant contested the Minister's decision to cancel his visa, alleging a failure to comply with procedural fairness and other legal errors. The court was tasked with determining whether the Minister's decision was lawful and whether there were any procedural flaws that warranted overturning the decision.

The primary legal issues before the court included whether the Minister's decision adhered to the principles of natural justice, specifically procedural fairness, and whether the decision was based on relevant and material considerations. Additionally, the court examined whether there were any errors in the application of the Migration Act and the Migration Regulations.

In delivering the judgment, the court found that the Minister's decision was procedurally sound and legally justified. The court held that the Minister had appropriately exercised his discretion and that the decision was based on valid and relevant considerations. The applicant's arguments regarding procedural fairness were rejected, as the court found no evidence of bias or unfairness in the decision-making process. Consequently, the court dismissed the application and ordered the applicant to pay the Minister's costs.

Orders

Orders of the court

The application is dismissed.

The applicant pay the first respondent’s costs set in the amount of $5,865.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.