FEDERAL COURT OF AUSTRALIA

Khan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 141

JAHANZEB ASLAM KHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 2471 of 2003

WILCOX, KIEFEL and BENNETT JJ

12 MAY 2004

SYDNEY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from a decision of Moore J.  His Honour dismissed an application to review a decision of the Migration Review Tribunal (‘the Tribunal’) affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) to cancel the appellant’s temporary student visa. 

2                     The relevant statutory provisions are set out in his Honour's judgment, with the exception that his Honour did not quote the full terms of item 4(6) of Schedule 4 of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth).  That Act commenced on 21 December 2000.  Item 4(6) reads as follows:

‘After this item commences, the Minister may cancel a visa under section 116 of the Migration Act 1958, on the ground that the Minister is satisfied that the condition set out in subitem (3) of this item has not been complied with, even if some or all of the non-compliance happened before this item commenced.’

3                     We set out the terms of this item because it was contended by the appellant, who appeared in person before Moore J, that the condition imposed upon him by item 4(3) of Schedule 4 did not apply in respect of his performance during semesters earlier than the date upon which the new legislation took effect.  As will be apparent from the terms of item 4(6), which we have set out, that contention cannot be accepted.

4                     The scheme of the legislation is, in effect, to make the certificate of the education provider decisive.  In the present case, the Tribunal found that the relevant education provider, the University of Wollongong, had not certified that the academic result achieved by the appellant was satisfactory.  On the contrary, the University had certified that his academic result was unsatisfactory.

5                     The appellant has given us reasons for the unsatisfactory nature of his result.  It is not for us to determine the accuracy or sufficiency of what he has said.  The fact is that the education provider has not provided a certificate that the appellant’s academic result is satisfactory.

6                     It appears that, since the unsatisfactory period of his study, the appellant has enrolled in a new course.  He informs us that this is a Masters course, which is going well, from his point of view, and which he is due to finish at the end of this year.  He is concerned to remain in Australia long enough to complete that course.

7                     It seems to us there is nothing that we can do to assist the appellant in that regard.  Reference was made by Mr Markus, on behalf of the Minister, to the possibility of an application being made to the Minister to exercise her discretion under s 351 of the Migration Act 1958 (Cth).  This is an option the appellant may wish to consider but it is not a matter for our concern.

8                     No error is shown in the judgment of Moore J.  We have no option other than to dismiss the appeal.  There is no basis for depriving the Minister of her costs of the appeal.  Accordingly, the order of the Court is that the appeal be dismissed with costs.

Associate:

Dated:              24 May 2004