FEDERAL COURT OF AUSTRALIA

Humayun v Minister for Immigration and Border Protection [2017] FCA 1484

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant pay the First Respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

1    This is an appeal from the judgment of the Federal Circuit Court of Australia, published as Humayun v Minister for Immigration & Anor [2017] FCCA 1495. The Federal Circuit Court had before it an application for the judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) made on 24 November 2015. The Tribunal on 24 November 2015 affirmed a decision of a delegate of the first respondent (“Minister”) to cancel the appellant’s Subclass 572 Vocational Education and Training Sector Student visa. Section  116(1)(fa) of the Migration Act 1958 (Cth) (“Migration Act”), relevantly provides that the Minister may cancel a Student visa if he or she is satisfied that its holder is not or is likely not to be a genuine student.

2    The appellant is a citizen of Bangladesh who was granted the Subclass 572 Student visa on 15 May 2013. On 7 May 2015, relying upon s 116(1)(fa), the Minister’s delegate cancelled the appellant’s student visa. That occurred because the delegate was satisfied that the appellant had made unsatisfactory course progress and had not successfully completed any course since his Student visa was granted on 15 May 2013. The delegate was of the view that the primary purpose of the appellant holding a Student visa was not for the purpose of study, and was satisfied that the appellant was not a genuine student. In affirming the delegate’s decision, the Tribunal was also satisfied that the appellant had made unsatisfactory course progress and that he had not successfully completed any course since his Student visa was granted. The Tribunal was satisfied that the ground for cancellation in s 116(1)(fa) was established.

3    The Tribunal went on to consider whether the power to cancel should be exercised. In exercising its discretion, the Tribunal took into account the appellant’s evidence that his attendance at his course had been adequate until he broke four toes in his foot. The Tribunal, however, stated the reason the visa was cancelled was because the appellant had not engaged in a course of study for six months after he broke four toes in his foot in March of 2014 and had not successfully engaged in a course of study after that time. The Tribunal considered the breach to have been significant. Having considered the evidence as a whole, the Tribunal was not satisfied it should exercise the discretion not to cancel the visa. The Tribunal accordingly affirmed the delegate’s decision.

4    In his application for judicial review before the Federal Circuit Court, the appellant relied on three grounds, each of which was dismissed for being insufficiently particularised to allow any meaningful basis for identifying error. The Federal Circuit Court also considered a written submission prepared for the appellant. In that submission, which appears to have been prepared by a barrister who did not appear for the appellant, it was suggested that the appellant’s attendance at some classes had not been taken into account by the Tribunal and that the failure to do so constituted jurisdictional error on the basis that failure to have regard to relevant material that was so fundamental that it went to jurisdiction.

5    The Federal Circuit Court addressed that submission and rejected it on the basis that the primary judge was not persuaded that the evidence relied on was “sufficiently fundamental or cogent to [the appellant’s] claims as to demonstrate a failure by the Tribunal to perform its statutory task”. Having concluded that no jurisdictional error had been established, the primary judge dismissed the appellant’s application for judicial review.

6    In his Notice of Appeal to this Court from the decision of the Federal Circuit Court, the appellant relies on one ground. In that ground, the appellant refers to and sets out the terms of s 116(1)(fa) of the Migration Act.

7    The appellant appeared in person assisted by an interpreter. Having summarised for the appellant the procedural history to date and what it was necessary for him to establish to succeed on this appeal, I invited the appellant to make any submissions he wished to. I pointed out to the appellant that his ground of appeal did not identify any error and specifically invited the appellant to identify any error which he sought to assert in the decision of the primary judge. The appellant could point to no error and he made no submission of any substance.

8    In the circumstances, the appellant has not identified error and having read the reasons of the primary judge, there is no error apparent to me.

9    Accordingly, the appeal must be dismissed. It follows that the appellant should pay the first respondent’s costs.

Associate:    

Dated:    7 December 2017