Gurung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 772

FEDERAL COURT OF AUSTRALIA

Gurung v Minister for Immigration &Multicultural & Indigenous Affairs [2002] FCA 772 MIGRATION – application for review of MRT decision refusing to grant a student visa – refusal to grant student visa based on applicant's non-compliance with Condition of grant of visa – whether substantial compliance with Condition – whether Tribunal applied correct form of the Condition – whether Tribunal erred in concluding that applicant's academic results were not satisfactory – whether applicant received a fair hearing before the Tribunal – application of privative clause Migration Act 1958 (Cth) s 425 Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) (No 168, 2000) Kim v Witton (1995) 59 FCR 258 referred to R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited BHARAT GURUNG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 136 OF 2002 TAMBERLIN J SYDNEY 26 JULY 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 136 OF 2002

BETWEEN: BHARAT GURUNG

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 26 JULY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 136 OF 2002

BETWEEN: BHARAT GURUNG

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 26 JULY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision made by the Migration Review Tribunal ("the Tribunal") on 30 January 2002 affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") that a visa applicant was not entitled to the grant of a Student (Temporary) (Class TU) visa. The applicant applied for the student visa on 15 March 2001. The delegate's decision to refuse the visa was made on 26 April 2001. 2 The applicant is a national of Nepal, born on 22 January 1972. He first entered Australia on a student visa on 26 August 1995. The visa was valid until 10 September 1996 and was subsequently extended on a number of occasions until 15 March 2001 when it expired and the applicant unsuccessfully applied for a new student visa. The applicant has since held a bridging visa granted on the basis of the unsuccessful application for a visa which is the subject of review. 3 The Minister's delegate refused the visa on the basis that the applicant had not substantially complied with Condition 8202, which was a term of being granted what was then classified as a Subclass 560 visa in accordance with cl 560.213 of Schedule 2 to the Migration Regulations 1994 (Cth) ("the Regulations"). In particular, the delegate's decision was based on the fact that the applicant had passed only one subject out of fifteen subjects of a Bachelor of Economics course undertaken at the University of New South Wales in his first three years of study between 1998 and 2000. 4 The applicant had stated in writing when lodging his application for the visa that he found the course difficult. This made him depressed and led him to gambling. He said that he had realised his mistake and wanted a second chance. He claimed that during the period in question, gambling became an addiction which caused him to lose everything. 5 The Tribunal was aware of these claims by the applicant. Prior to the hearing before it, the Tribunal wrote to the applicant on 6 November 2001, inviting him to comment on his academic performance at the University. In his reply of 3 December 2001, the applicant admitted his inadequate performance and attributed this to a lack of proficiency in the English language and personal predicaments. He said that he was practising writing and reading English and requested another chance to continue his studies. 6 At the Tribunal hearing the applicant confirmed that a preoccupation with gambling had been the principal cause of his poor academic performance. He provided the Tribunal with academic results for the second semester of 2001, which showed he had passed two subjects of the four subjects studied in that semester. He had failed the other two. He also provided evidence that he had passed the two subjects undertaken at the Sydney University Summer School in 2001-2002. The applicant said that he was confident that he would complete his Bachelor of Economics degree at the University of New South Wales by the end of 2003 and appealed to the Tribunal to give him a chance to do so.