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MIGRATION - Review of decision of Migration Review Tribunal - student visa - whether applicant had complied with relevant regulations - whether any reviewable error had been demonstrated.

Nadeem v Minister for Immigration [2003] FMCA 25 (14 February 2003)

Nadeem v Minister for Immigration [2003] FMCA 25 (14 February 2003)
Last Updated: 2 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NADEEM v MINISTER FOR IMMIGRATION
[2003] FMCA 25



MIGRATION - Review of decision of Migration Review Tribunal - student visa - whether applicant had complied with relevant regulations - whether any reviewable error had been demonstrated.



Migration Regulations 1994, Part 560 Schedule 2

Migration Act 1958 (Cth), s.359A

Judiciary Act 1903 (Cth), s.39B

Baidakova v Minister for Immigration [1998] FCA 1436

Kim v Whitton (1995) 59 FCR 258

Abebe v Commonwealth (1999) 197 CLR 510

Applicant:
QAMAR NADEEM



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1135 of 2002



Delivered on:


14 February 2003



Delivered at:


Sydney



Hearing date:


7 February 2003



Judgment of:


Raphael ACFM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr T Reilly



Solicitors for the Respondent:


Blake Dawson Waldron


ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $4,250.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1135 of 2002

QAMAR NADEEM


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant, Mr Nadeem, is a young student from India who was in receipt of a student (temporary) Class TU visa originally issued on 2 March 1997. That visa was valid until 12 January 1999. On 12 January 1999 the applicant was granted another student visa valid until 15 April 2001. On 20 March 2001 he made an application for a further visa which was refused by a delegate for the Minister because he found that the visa applicant had not substantially complied with condition 8202 which was a condition of the holding of a Subclass 560 visa. Clause 8202 relevantly states:

"8202 - (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 the 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% 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. "

2. The applicant sought review of the delegate's decision from the Migration Review Tribunal on 28 May 2001. The Tribunal's decision was dated 28 August 2002. One of the reasons for the extended delay in giving the decision was that in January 2002 the Tribunal, having discovered certain information about the applicant's non-attendance at the Canterbury Business College, had written to the applicant pursuant to s.359A of the Migration Act 1958 (Cth) ("Migration Act") seeking comment on information received from the Canterbury Business College concerning his unsatisfactory attendance and academic performance. Although the applicant said to the court that he had not received such a letter a migration agent had responded to the Tribunal on his behalf on 22 February seeking further time. On 28 February the Tribunal had granted a further month until 26 March 2002 for the applicant to comment. The applicant did not respond to that invitation.

3. Part 560 of Schedule 2 of the Migration Regulations sets out criteria to be satisfied at the time a decision is made. Regulation 560.213 states as follows:

"560.213 If the application is made in Australia, 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."

4. The Tribunal affirmed in a decision of the delegate that Mr Nadeem's record of attendance and performance whilst at Canterbury Business College did not indicate substantial compliance with Condition 8202. In giving the matter its consideration it took into account the dicta of Katz J in Baidakova v Minister for Immigration [1998] FCA 1436 and in particular the quotation from the judgment of Sackville J in Kim v Whitton (1995) 59 FCR 258. The Tribunal took into account the fact that the applicant had been given the opportunity to comment upon the information provided by the Canterbury Business College but had failed to do so.

5. The applicant did not file any particulars of his claim nor any written submissions as to why he considered that the Tribunal had erred in law so as to be subject to review in accordance with s.39B of the Judiciary Act 1903 (Cth) ("Judiciary Act"). At the hearing before me the applicant first maintained the argument which he had put to the Tribunal that the problems he encountered at Canterbury Business College arose from their refusal to enrol him. When it was pointed out that he must have enrolled in the College in order to have sat the examination and secured the attendance record that were evidenced by the documents found at [CB 79-80] he advised the court that these documents were false and that they had been manufactured by the College to prejudice him.

6. I accept the submission of the respondent that the applicant has not established any grounds for review in relation to this decision. The Tribunal was entitled to come to the view that the applicant had not complied with condition 8202 from the evidence which was before it. Even if that conclusion was wrong in fact it would not constitute jurisdictional error (Abebe v Commonwealth (1999) 197 CLR 510).

I must therefore dismiss the application and order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael ACFM

Associate:

Date:
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