FEDERAL COURT OF AUSTRALIA

Mia v Minister for Immigration and Citizenship [2010] FCA 1312

THE COURT ORDERS THAT:

1.    This appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    This is an appeal against a judgment of a Federal Magistrate delivered on 20 August 2010, dismissing an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”).

background and procedural history

2    The appellant is a citizen of Bangladesh who arrived in Australia on 13 October 2006 on a student visa. On 14 March 2008 the appellant lodged a further application for a student visa with the Department of Immigration and Citizenship. On 21 May 2008 a delegate of the Minister for Immigration and Citizenship refused that application and on 30 November 2009 the Tribunal affirmed the delegate’s decision. As noted above, the decision of the Federal Magistrates Court to dismiss an application for judicial review of this latter decision is the subject of the present appeal.

3    The delegate refused the appellant’s application on the basis that he was not a genuine applicant for entry and stay as a student because he did not satisfy the requirements of cl 572.223 (2)(a)(i) A of Schedule 2 of the Migration Regulations 1994 (‘the Regulations’) which refers in turn to the requirements in Schedule 5A for Subclass 572. Clause (d)(iii) of the latter Schedule relevantly required the appellant to provide evidence that he had, less than two years before the date of his application : “as the holder of a student visa – successfully completed a substantial part of a course…that: … was conducted in English; and …was leading to a qualification …at the Certificate IV level or higher;... ”

4    In particular the delegate was not satisfied – based on the evidence the appellant produced - that his completion of three subjects, in a Diploma of Hospitality Management course at the Illawarra Business College in the two years before the date of his application, was sufficient to constitute the completion of a “substantial part” of that course.

THE TRIBUNAL AFFIRMS THE DELEGATE’S DECISION – APPELLANT did not meet the requirements of the regulations

5    By the time of the Tribunal’s decision on 30 November 2009 the circumstances of the appellant’s case had changed in two relevant respects. First, the number of the relevant student visa Subclass had changed from 572 to 570 and the terminology used in the equivalent clauses - cl 570.223(2)(a) referring to Schedule 5A cl 5A204 - had changed somewhat, however the relevant basic requirements remained the same as those set out in [3] above.

6    Secondly, before the Tribunal, the appellant relied upon sub clause (a) of Schedule 5A cl 5A204 which allowed him to submit evidence he had: “achieved, in an IELTS [International English Language Testing System] test that was taken less than 2 years before the date of the application, an Overall Band Score [OBS] of at least 5.0;…” He also relied upon a decision the Full Court handed down on 21 August 2009 in Minister for Immigration and Citizenship v Kamal [2009] FCAFC 98 where the Court held that an IELTS test may be taken after the date of an applicant’s application. Accordingly the appellant submitted evidence to the Tribunal that he had undertaken IELTS tests on 4 April 2008 and 8 October 2009 where he achieved results of 4 and 4.5 OBS respectively. While these tests were both below the required level of at least 5.0 OBS, the appellant requested the Tribunal to allow him further time to sit for a further IELTS test on 23 January 2010. The Tribunal refused this request because the appellant’s application had been outstanding since 14 March 2008 and it had already allowed him one extension of time to sit for the IELTS test on 8 October 2009.

7    As to whether the appellant met the relevant requirements for a student visa Subclass 570 the Tribunal held that cl 5A204(c)(iii) required him to meet those requirements “… as the holder of a student visa …” It found that the appellant ceased to hold a substantive student visa from 15 March 2008. It also found that in the two years before his application, the appellant had only completed 3 modules and commenced a further 2 modules, in a Certificate III in Hospitality (Commercial Cookery) or a Diploma of Hospitality Management. Accordingly, it was not satisfied that the appellant had completed a substantial part of a course leading to a qualification at the Certificate IV level or higher and it affirmed the decision under review.

the federal magistrate finds no jurisdictional error

8    The appellant filed an application for judicial review in the Federal Magistrates Court, which raised the following grounds:

1. The Tribunal made an error not providing the information which the Tribunal used in making the decision.

2. The Tribunal failed to consider that the applicant had completed substantial part of his course requirement.

3. The Tribunal failed to consider the applicant’s request to complete IELTS in January 2010, in this case the Tribunal made an error not ensuring the applicant procedural fairness

[Errors in original]

9    With respect to ground 1, the Federal Magistrate found that the only information before the Tribunal was that which was provided by the appellant. In the absence of particulars or submissions identifying any material that would trigger s 359A(1) of the Migration Act 1958 (Cth) (“the Act”), his Honour was satisfied that the Tribunal complied with that section.

10    In relation to ground 2, the Federal Magistrate found that the determination of what might or might not constitute a substantial part of a course was a matter of fact for the Tribunal, citing Commissioner for Superannuation v Scott (1987) 71 ALR 408 at 411 to 413 and Seneviratne v Minister for Immigration [2009] FMCA 907 at [48]. His Honour therefore held that this was not a matter in relation to which the Federal Magistrates Court could interfere.

11     Ground 3 was similarly dismissed. His Honour held that the approach taken by the Tribunal was open to it and no error had been demonstrated.

12    Having found no jurisdictional error in the Tribunal’s decision, the Federal Magistrate dismissed the appellant’s application.

the conduct of the present appeal

13    On 7 September 2010, the appellant filed a notice of appeal in this Court which contained the following grounds:

1. His Honour erred not considering that the Tribunal made an error not providing an adequate time to the applicant to comply with IELTS result.

2. The Tribunal made an error not considering that the applicant completed the substantial part of the course requirement. His Honour erred in considering this issue.

3. His Honour erred that the Tribunal failed to comply with section 424A of the Migration Act in deciding this case.

[Errors in original]

14    It will be noted that while they are in a different order and slightly different terminology is used, these grounds are essentially identical to the grounds of review raised before the Federal Magistrate.

15    At the hearing before me on 24 November 2010, the appellant appeared in person, unrepresented, but assisted by an interpreter. Ms Mitchelmore appeared for the first respondent.

16    The appellant relied on his notice of appeal and an outline of written submissions that he handed up in Court. Ms Mitchelmore relied on the outline of written submissions that had been filed with the Court and made a few brief oral submissions elaborating on her written submissions.

consideration

17    In relation to the first ground of appeal – which is to the same effect as the third ground in the judicial review application – the Federal Magistrate correctly determined that it was open to the Tribunal not delay its decision on the appellant’s application any further, given that the appellant had already sat the IELTS test on two previous occasions and had not achieved the necessary OBS to satisfy the Regulations. This ground of appeal must be dismissed.

18    On the second ground of appeal – which is to the same effect as the second ground in the judicial review application – the Federal Magistrate correctly identified that the determination of what might or might not constitute a substantial part of a course was a matter of fact that the Federal Magistrates Court could not lawfully interfere with. As was held in Commissioner for Superannuation v Scott (1987) 71 ALR 408 (per Fisher and Spender JJ) at 412 to 413, it must be left to the judge of fact, in applying the meaning of the word “substantial”, to decide as best he or she can according to the circumstances of the case. This ground of appeal must also be dismissed.

19    Finally, with the third ground of appeal – which is to the same effect as the first ground in the judicial review application – the appellant cites s 424A of the Act, which applies to the conduct of a review of a protection visa decision by the Refugee Review Tribunal. I will assume that this is intended to be a reference to s 359A(1)(a) of the Act which is the relevant section for a review before the Migration Review Tribunal. On that assumption, the Federal Magistrate was correct in concluding that the only information before the Tribunal was that which was provided to it by the appellant and the appellant has not particularised any other information that the Tribunal should have, but failed, to make available to him. This ground of appeal must be dismissed as well.

conclusion

20    For these reasons, this appeal must be dismissed. I so order. I will hear the parties on the question of costs.

Associate:

Dated:    26 November 2010