FEDERAL COURT OF AUSTRALIA

Iftikhar v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1123

Migration Act 1958 (Cth) s 116(3), s 474

Migration Regulations  1994 (Cth) reg 2.43

Judiciary Act 1903 (Cth) s 39B

Shrestha v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 669 not followed

Minister for Immigration and Multicultural Affairs v Shrestha (No N455 of 2001, 7 August 2001, unreported)

Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 referred to

JAMSHED IFTIKHAR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGINOUS AFFAIRS

N 590 OF 2002

GYLES J

SYDNEY

28 AUGUST 2002

THE COURT ORDERS THAT:

1.      The application is dismissed.

2.      The applicant is to pay the costs of the respondent of this application.

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

REASONS FOR JUDGMENT

1                     In this matter the applicant is a citizen of Pakistan and was in receipt of a Student (Temporary) (Class TU) visa.  On 17 January 2002, the delegate of the Minister cancelled the applicant's visa pursuant to s 116(3) of the Migration Act 1958 (Cth) (‘the Act’), reg 2.43.  At that time, the condition which applied to the visa was condition 8105 and sub-clause (1) of that condition was as follows:

“Subject to subclause (2) the holder must not engage in work in Australia for more than 20 hours a week during any week when the holder's course of study or training is in session.”

Subclause (2) is irrelevant to the present case.

2                     At that time reg 2.43 which prescribed grounds for the purposes of s 116(3), included the following:

 “For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

(a)     each of the circumstances comprising the grounds set out in paragraphs 1(a) and (b); and

(b)     in the case of a Student Temporary (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:

(i)    condition 8104 or 8105 (if the condition applies to the visa); or

(ii)   condition 8202.”

3                     The applicant conceded a breach of condition 8105 at the time of the consideration of the matter by the delegate.  His original explanation was that he had worked in excess of the hours on limited occasions when filling in for a sick colleague.  Upon review by the Migration Review Tribunal, the applicant took different positions.  One version was that the hours were inflated by his brother who was the manager of the store in question where he was working, so as to inflate his earnings for collateral purposes, but another version was that there was no working of the excess hours.  The Tribunal did not accept the contention that there was not working of excess hours.

4                     The Tribunal went on to say,

“37.     The Tribunal does not consider there to have been misadventure or other serious circumstances beyond the applicant’s control such as to bring this review application within the ambit of the decision of Madgwick J in Shrestha.

38.       The breach of condition 8105 gives rise to a ground for cancellation of the applicant’s student visa under subparagraph 2.43(2)(b)(i) of the Regulations.  This ground is a ‘prescribed circumstance’ as per subsection 116(3).  Under the last-mentioned subsection, the Minister must cancel the visa.  This is what happened.

CONCLUSION

39.       The Tribunal makes the following findings:

·        The review applicant breached a condition attached to his student visa, namely condition 8105, in the weeks ending 5 August 2001 and 12 August 2001 2001 [sic].

·        This breach of condition 8105 gave rise to a mandatory ground for cancellation of the student visa, and this cancellation has taken place.

·        There has been no misadventure or other serious circumstance to warrant the operation of the principles set out in the judgement [sic] of Madgwick J in Shrestha.

40.       Given this conclusion, the Tribunal has no alternative but to affirm the decision under review.”

5                     Par [37] relates back to a comment made in par [10] of the Tribunal's reasons:

“10.     In relation to deciding whether there is a breach of a condition of a visa, the apparent literal wording of a condition may not exclude consideration of misadventure or circumstances reasonably beyond the control of the former visa holder.  In Shrestha, Madgwick J considered that regard could be had to circumstances, which may have prevented the visa holder from attending at least 80% of scheduled classes and tutorials.  The Judge noted that this view was consistent with departmental policy and the overall purposes of the Act.  In recent proceedings before the Full Federal Court (Minister v Shrestha, No N455 of 2001, 7 August 2001, unreported) the Court ordered by consent that the judgement [sic] of Madgwick J be set aside and the matter reconsidered by the MRT.  However in doing this the Full Federal Court made it clear it was making no ruling one way or the other as to the correctness of the applicability of Madgwick J’s approach to student cases.  In these circumstances it is clear that the approach taken by Madgwick J is still available for use by decision-makers in the appropriate case.”

6                     The application to this court purports to be by way of proceeding under s 39B of the Judiciary Act 1903 (Cth), but it did not state any relevant ground.  Counsel for the applicant has submitted that the Tribunal fell into jurisdictional error when it failed to fully consider whether the applicant's failure to comply with the condition was due to circumstances reasonably beyond his control.  This ground is based upon the decision of Madgwick J in Shrestha v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 669 which was referred to by the Tribunal.  It was inevitable that such an argument would have to be found because there is no sensible basis upon which it could be said that the Tribunal were not entitled to find against the applicant upon the question of fact as to the length of the period of work.

7                     Counsel for the respondent submits that, without needing to go further into the matter, the application is doomed to failure because of the operation of s 474 of the Act as it now stands, particularly in the light of the recent decisions upon the effect of that section.  The issue as to whether there is a manner of reading the legislation at the relevant time as being subject to exceptions such as circumstances beyond the control of an application, is highly controversial.  The decision in Shrestha, to which reference has been made, was set aside by consent by the Full Court (Minister for Immigration and Multicultural Affairs v Shrestha No N455 of 2001, 7 August 2001, unreported) and the Court noted that:

“1.    The parties agree that upon the matter being remitted to the Tribunal under Order (3) above, the Tribunal will not be bound by the reasoning of the Honourable Justice Madgwick in relation to the construction and/or validity of Condition 8202 of Schedule 8 (as it stood at the date of cancellation being 14 February 2000) as affected by Regulation 2.43(2)(b) of the Migration Regulations 1994 (as was then in force);

2.      The appellant agrees to obtain and supply to the Tribunal on remitter a transcript of today’s proceedings.”

8                     This circumstance was, I observe, also remarked upon by Emmett J in Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 at [9] and [10].  It is, to say the least, arguable that the Tribunal fell into error in taking the view that the approach taken by Madgwick J in Shrestha was still available for use by decision makers in the appropriate case.  However, if there were an error, it was an error to the advantage of the applicant.  It seems to me that the Tribunal in par [27] did direct its mind to the principle applied in that decision and, despite the valiant efforts of the counsel for the applicant, I cannot see any arguable basis upon which that principle, even if it exists, could apply in the present case.

9                     I am further of the view that, on any basis, s 474 of the Act would preclude any challenge of the kind advanced by counsel for the applicant.  The scope for  this court to review proceedings of the Migration Review Tribunal is now extremely limited and this case does not fall within it.

10                  I therefore have no alternative but to dismiss the application.  I order that the applicant pay the costs of the respondent of this application.

Associate:

Dated:              11 September 2002

Applicant appeared in person

Counsel for the Respondent:                 R Bromwich

Solicitor for the Respondent:                 Australian Government Solicitor