Uddin v Minister for Immigration - [2007] FMCA 1173

FEDERAL MAGISTRATES COURT OF AUSTRALIA

UDDIN v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1173

MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal was obliged to consider all sub-conditions of 8202 in considering whether there was substantial compliance with 8202 – whether the Migration Review Tribunal was obliged to consider all visa conditions where it had found one of the conditions was not met – whether the Migration Review Tribunal was obliged to consider whether there was substantial compliance with the conditions of a bridging visa where there was no substantial compliance with the conditions of the last held substantive visa.

Migration Regulations 1994, sch.2
Migration Act 1958 (Cth), s.474

Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 167
Kim v Witton (1995) 59 FCR 258
Baidakova v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 1436
Shrestha v Minister for Immigration and Multicultural Affairs [2001] FCA 1578
Minister for Immigration and Multicultural Affairs v Modi (2001) 116 FCR 496
Gerhard v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 495
Shang v Minister for Immigration and Multicultural Affairs [2006] FCA 1453
Weerasingh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 261

Applicant:

A Z M JASIM UDDIN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG854 of 2007

Judgment of:

Emmett FM

Hearing date:

12 July 2007

Date of last submission:

12 July 2007

Delivered at:

Sydney

Delivered on:

20 July 2007

REPRESENTATION

Counsel for the Applicant:

Mr J. Smith

Solicitors for the Applicant:

Mr R. Turner (Parish Patience Immigration Lawyers)

Counsel for the Respondent:

Mr B. Nolan

Solicitors for the Respondent:

Mr B. OBrien (DLA Phillips Fox)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG854 of 2007

A Z M JASIM UDDIN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”), dated 14 February 2007, affirming a decision of a delegate of the First Respondent, dated 21 November 2005, to refuse to grant the applicant a Student (Temporary) Class TU visa.
On 28 January 2004, the applicant was granted a Class TU student visa subclass 574 with conditions attached, including condition 8202. Under regulation 572.235 of schedule 2 to the Migration Regulations 1994 (“Regulation 572.235”), the applicant is required, at the time of the decision, to satisfy the decision-maker that, “if the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.”
It is common ground between the parties that, at the time of decision, the applicant’s substantive visa was a subclass 574 visa and that at that…

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.

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Details

Case: [2007] FMCA 1173
Decision Date: 20 July 2007

CaseChat Overview and Summary

The case of Uddin v Minister for Immigration involved the applicant, who filed an application on 14 March 2007, seeking judicial review of a decision made by the Migration Review Tribunal (MRT). The primary ground for review was that the MRT misinterpreted and misapplied the relevant law, specifically clause 572.235 of Schedule 2 of the Migration Regulations 1994, when determining whether the applicant had substantially complied with condition 8202 of their subclass 574 visa. The applicant, represented by Mr Smith, argued that the MRT failed to correctly interpret the regulation in its analysis and that it did not adequately consider whether the applicant had substantially complied with the conditions of their bridging visa.

The legal issues before the court centred on the interpretation and application of clause 572.235 of the Migration Regulations. The court had to determine whether the MRT properly assessed the applicant's compliance with condition 8202 of their visa, considering whether each subclause of the condition was substantially met, and whether any failure to comply with any subclause necessarily meant non-compliance with the whole condition. The applicant argued that the MRT did not follow the correct legal approach in its decision-making process, leading to an incorrect conclusion that the applicant had not substantially complied with the visa conditions.

In delivering the judgment, the court found that the MRT had indeed failed to correctly apply the relevant legal principles when assessing the applicant's compliance with condition 8202. The court emphasised that clause 572.235 required the decision-maker to consider each subclause of condition 8202 separately to determine whether the applicant had met the requirements. The court noted that the MRT's approach did not align with the legal obligations under the regulation, as it did not consider whether the applicant had substantially complied with each specified subclause. Consequently, the court found that the MRT's decision was flawed due to this misapplication of the law.

As a result of this finding, the court allowed the application for judicial review, quashed the MRT's decision, and remitted the matter back to the MRT for reconsideration in light of the court's findings. The court's decision underscored the importance of correctly interpreting and applying statutory provisions when making decisions about visa compliance.

Orders

Orders of the court

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Background

Background to the litigation

On 14 March 2007, the applicant filed the application presently before this Court. That application relied on the following ground:“Ground 1: The MRT misinterpreted the applicable law and or misapplied the law to the factsParticulars1. The MRT erred in its interpretation and application of clause 572.235 of Schedule 2 of the Migration Regulations 1994:(a) by construing clauses 572.235 as meaning that a failure to comply with condition 8202, imposed on the subclass 574 visa held by the Applicant at the relevant time, meant that there was not substantial compliance with the conditions attached to that visa; and or(b) by finding that the Applicant had not substantially complied with the conditions of his visa because of an alleged breach of Condition 8202.” The applicant was represented by Mr Smith, of counsel, at the hearing. Leave was granted to the applicant to rely on a further particular as follows:“(c)The Tribunal failed to consider whether the Applicant had complied substantially with the conditions that apply or applied to the bridging visa held by the Applicant at the time of the decision” As referred to above in these Reasons, the Tribunal stated that the issue was “whether, at the time of this decision, the applicant has complied substantially with Condition 8202 of his Subclass 574 Postgraduate Research Sector visa.” At the heart of the submissions made by counsel for the applicant is a submission that the Tribunal, while identifying the issue for review correctly, did not then proceed to answer the question it had posed. Counsel for the applicant submitted that Regulation 572.235 obliged the decision maker, in considering whether the applicant had substantially complied with condition 8202, to consider whether in respect of each of the four subclauses of condition 8202 there was substantial compliance and then to consider whether any failure to comply with any subclause meant that there had not been substantial compliance with the whole of the condition. Counsel for the applicant sought to distinguish the Full Court in Jayasekara where the Full Court of the Federal Court found that either the applicant complied with the requirement for certification of satisfactory academic result or it did not and in the event that it did not the failure to meet that subclause had the consequence that there was not substantial compliance with condition 8202 as a whole. Counsel for the applicant referred the Court to the changes to condition 8202 between Jayasekara and the case before this Court. Essentially, in the proceeding before this Court, condition 8202 stated relevantly that “the holder… must meet the requirements of subclauses 2 and 3”, whereas the same conditions were part only of subclause 3 in Jayasekara. Counsel for the applicant submitted that Regulation 572.235 required the decision-maker to consider whether or not the applicant had met 8202(2), as well as 8202(3), and a failure to consider whether the holder of the visa met 8202(2) was a failure to exercise jurisdiction.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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