FEDERAL COURT OF AUSTRALIA

Abbas v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1586

QAMAR ABBAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q 148 OF 2003

DOWSETT J

18 DECEMBER 2003

BRISBANE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of these proceedings, including reserved costs.

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

REASONS FOR JUDGMENT

1                     The applicant is a national of Pakistan.  He arrived in Australia on 27 June 2000 and, on 11 July 2000, was granted a sub-class 560 student visa with a right to work attached.  Pursuant to s 3 of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) and Schedule 4 thereto, that visa subsequently became subject to the conditions therein set out, in particular, that prescribed in subpar 4(3)(d)(ii) of the Schedule which, in effect, required that the applicant achieve an academic result certified by the education provider to be satisfactory.  There is clear evidence that no such certificate was forthcoming.  The contrary is not submitted.  It seems, therefore, beyond dispute that the applicant failed to comply with the condition described in Schedule 4 as condition 8202.

2                     He applied to the Migration Review Tribunal for a review of a subsequent decision of the Minister to cancel his visa, but this application was unsuccessful.  A perusal of the Tribunal’s reasons suggests that it considered that, because of the combined operation of the Act and various regulations, there was no discretion remaining to be exercised by the Minister, or by the Tribunal on review, once the failure to comply with condition 8202 was established.  This view of the law seems to be correct.  Pursuant to subs 116(1) of the Migration Act 1958 (Cth), the Minister may cancel a visa if the holder has not complied with a condition of the visa.  See par 116(1)(b).  Pursuant to subs 116(3):

‘If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.’

3                     Sub-regulation 2.43(2) of the Migration Regulations 1994 (Cth) prescribes, for the purposes of subs 116(3), that such circumstances include failure to comply with condition 8202.

4                     There is no suggestion that the Minister’s decision that breach of condition 8202 was established was infected by error justifying intervention by the Tribunal, nor that there was any such defect infecting the determination of the Tribunal.  In those circumstances, there is no basis for review of the Tribunal’s decision.  The application must be dismissed.  I order that the applicant pay the respondent’s costs of these proceedings, including reserved costs.

Associate:

Dated:              5 January 2004