Sarkodie v Minister for Immigration & Citizenship

[2007] FCA 713

FEDERAL COURT OF AUSTRALIA

Sarkodie v Minister for Immigration & Citizenship [2007] FCA 713

CHRISTIAN SARKODIE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

QUD 42 OF 2007

MARSHALL J
14 MAY 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 42 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

CHRISTIAN SARKODIE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	14 MAY 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’. 

2.The name of the second respondent is amended to ‘Migration Review Tribunal’. 

3.The appeal is dismissed.

4.The appellant pay the first respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 42 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

CHRISTIAN SARKODIE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	14 MAY 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. Mr Christian Sarkodie is a citizen of Ghana. On 26 April 2002, the then Department of the first respondent Minister granted him a Student (Temporary) (Class TU), Subclass 573 Higher Education Sector visa.  The visa was subject to various conditions in the Migration Regulations 1994 (‘Regulations’), made under the Migration Act 1958 (Cth) (‘Act’).

2. Under section 116(1)(b) of the Act, the Minister may cancel a visa if satisfied that the holder has not complied with a condition of the visa. In certain ‘prescribed circumstances’, s 116(3) of the Act required the Minister to cancel a visa. That is, the Minister did not have a discretion to decline to cancel the visa. At the time Mr Sarkodie’s visa was cancelled, such prescribed circumstances for Student (Temporary) (Class TU) visas included where ‘the Minister is satisfied the visa holder has not complied with … condition 8202’ (see reg 2.43(2)(b)(ii) of the Regulations).

3. Condition 8202 was contained in Sch 8 to the Regulations. That condition relevantly provided:

   8202    …

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

   …       

   (b)       …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.

   …                   

4. In semester 1 of 2004, Mr Sarkodie enrolled in a Bachelor of Pharmacy at the University of Queensland.  In accordance with condition 8202(3)(b)(ii) as it then applied, Mr Sarkodie was required to achieve at least a satisfactory result for each semester of his course. 

5. Mr Sarkodie did not achieve satisfactory academic results for semester 1 of 2005 and, consequently, the University of Queensland did not certify that he achieved an academic result that is at least satisfactory for that semester.      

6. On 19 September 2005, a delegate of the Minister cancelled Mr Sarkodie’s visa.  Mr Sarkodie applied to the Migration Review Tribunal (‘Tribunal’) for a review of the delegate’s decision.  The Tribunal affirmed the delegate’s decision, finding:

   …the applicant has not achieved an academic result that has been certified by the education provider to be satisfactory for semester 1, 2005. He has not complied with condition 8202(3)(b) and the ground for cancellation in s.116(1)(b) exists. Cancellation of the visa is mandatory.

7. Mr Sarkodie applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  In his reasons for judgment (see Sarkodie v Minister for Immigration and Multicultural Affairs [2007] FMCA 18), the Federal Magistrate said, accurately and succinctly, at [16]:

   A finding that condition 8202 had been breached leads inevitably to the cancellation of the applicant’s visa.  The delegate had no choice but to cancel the visa and the [Tribunal] had no choice but to affirm that decision.

8. His Honour below also referred to the late filing, by two days, of the application for judicial review.  Although Mr Sarkodie did not apply for an extension of time within which to file the application, his Honour said at [19] that he “…would be inclined to refuse an extension of time”.  In any event, because his Honour dismissed the application on the merits and so ordered, there is no issue about whether Mr Sarkodie should have applied for leave to this Court to appeal from his Honour’s refusal to extend time for making the application. 

9. In his grounds of appeal, Mr Sarkodie did not identify any specific error in the reasons of the Court below.  His Honour below correctly assessed that Mr Sarkodie had not complied with condition 8202(3)(b) and that the delegate was required to cancel Mr Sarkodie’s visa.

10. When the appeal was called for hearing this morning, Mr Sarkodie did not appear.  On the last working afternoon before the hearing of the appeal, Mr Sarkodie filed, but did not serve, a notice of motion seeking an adjournment of the appeal.  Mr Sarkodie did not attend to press his adjournment application.  The motion was supported by material, including a doctor’s certificate indicating that Mr Sarkodie was unfit for “his usual occupation/studies” until 15 May 2007, that is, tomorrow.  I note that the certificate is dated 10 May 2007 and applies from 8 May 2007 to 15 May 2007 “inclusive”.   The certificate gives no information about why Mr Sarkodie could not attend the hearing today or about the nature of his illness.  As there was no sufficient basis established for the adjournment, I refuse to grant it.            

11. The appeal must be dismissed, with costs.

I certify that the preceding 11 (eleven) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        14 May 2007

The Appellant did not appear.
Counsel for the First Respondent:	Ms A Wheatley
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	14 May 2007
Date of Judgment:	14 May 2007