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MIGRATION - Review of Migration Review Tribunal decision - cancellation of a student visa - breach of limited work condition - no reviewable error disclosed.

Ali v Minister for Immigration [2003] FMCA 243 (14 April 2003)

Ali v Minister for Immigration [2003] FMCA 243 (14 April 2003) Last Updated: 19 June 2003 FEDERAL MAGISTRATES COURT OF AUSTRALIA ALI v MINISTER FOR IMMIGRATION [2003] FMCA 243 MIGRATION - Review of Migration Review Tribunal decision - cancellation of a student visa - breach of limited work condition - no reviewable error disclosed. Migration Act 1958 (Cth) Applicant: RAHMATH ALI Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS File No: SZ1077 of 2002 Delivered on: 14 April 2003 Delivered at: Sydney Hearing date: 14 April 2003 Judgment of: Driver FM REPRESENTATION The applicant appeared in person Counsel for the Respondent: Mr M Wigney Solicitors for the Respondent: Clayton Utz ORDERS (1) The application is dismissed. (2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $2,500. (3) The setting down fee of $327 is to be paid within 14 days. FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY SZ1077 of 2003 RAHMATH ALI Applicant And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent REASONS FOR JUDGMENT (Revised from transcript) 1. This ex tempore judgment relates to a decision of the Migration Review Tribunal ("the MRT") made on 2 October 2002 in which the MRT affirmed a decision of a delegate of the respondent Minister. The decision of the MRT was to affirm a decision of a delegate of the minister cancelling a student temporary class TU visa previously granted to the applicant. 2. The background facts are set out in written submissions prepared on behalf of the respondent Minister by Mr Wigney and are accurately set out in paragraphs 1.1 to 1.7 of those written submissions. In addition, the description of the proceedings in the MRT is accurately set out in paragraphs 2 and 3 of those written submissions. I adopt the description of background and the description of the MRT proceedings for the purposes of these proceedings. 3. The applicant has presented a simple application and very short affidavit in support of his application. I invited him to add to his written material this afternoon. He confirmed what he stated in his affidavit that he is looking for an opportunity to complete his computer course of study before he is required to return home to India. The applicant does not in substance dispute any of the factual findings made by the MRT and was not in a position to contest the legal bases for the MRT decision. He was, in effect, simply seeking a decision which would permit him to remain in Australia for a sufficient period of time to complete his studies. 4. I agree with Mr Wigney's submission that the applicant, who was unrepresented, is seeking some form of merits review of the MRT decision. Unfortunately for the applicant, it is not open to me to grant that form of merits review or indeed any form of merits review. My jurisdiction is limited to determining whether any jurisdictional error has been made by the MRT. No error of law amounting to an error of jurisdiction has been suggested by the applicant. My own perusal of the MRT decision has not indicated to me that any error has been made by the MRT. 5. In the circumstances, there is no basis upon which I could interfere with the decision of the MRT. In the circumstances, the decision of the MRT is protected by the privative clause in s.474 of the Migration Act 1958 (Cth). I will dismiss the application. 6. I note in passing that the legislation removes from the administrative decision makers in the circumstances of cancellation of a visa or breach of a no work condition on the student visa any discretion in relation to the matter. The apparent legislative purpose of the relevant provisions is to ensure that persons who receive student visas for study in Australia are bona fide students. The work condition is placed on the visa in order to provide some objective basis for determining whether or not persons holding the visas are bona fide students. Those who work in addition or in excess of the amount of time they are permitted to work breach that condition on the visa, and by reason of operation of the legislation where the condition is breached the visa must be cancelled. 7. Perhaps students in the circumstances of this applicant, if they are able to advance other information to satisfy the Department that they are bona fide students, might receive a favourable decision if the decision maker had some discretion. The legislation as presently framed does not permit any discretion to be exercised by the decision makers. There would seem to be some merit in the Department considering whether, if a student is able to demonstrate that he or she is a bona fide student notwithstanding a breach of a no work or limited work condition, they should be given another chance. The legislation as presently framed does not give that discretion and it is a matter for the Department to consider whether any amendment ought to be considered in order to provide that discretion. 8. I must dismiss this application in light of the privative clause. 9. On the question of costs, Mr Wigney seeks an order for costs. He has indicated that an amount of $4,000 might be appropriate, in view of awards in other matters. The applicant has told me that he apologises for breaching the condition on his visa and seeks some consideration in the matter of costs. The amount of preparation required of the respondent in this matter is somewhat less than would ordinarily be the case due to the simplicity of the legal and factual issues. A reasonable amount of preparation was necessary in order to prepare the court book. Mr Wigney has also prepared written submissions and has reasonably appeared on behalf of the respondent Minister at the hearing today. 10. In my view, an award of costs in the sum of $2,500 would be adequate on a party/party basis in this matter. I will order that the applicant pay the respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $2,500. 11. In addition to the orders I have made, I will order that the setting down fee payable in this matter of $327 be paid within 14 days. I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM Associate: Date: 17 June 2003
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