Hasan v Minister for Immigration and Citizenship [2007] FCA 697

FEDERAL COURT OF AUSTRALIA

Hasan v Minister for Immigration and Citizenship [2007] FCA 697

MOHAMMED MEHBUB HASAN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL NSD 311 OF 2007

MANSFIELD J

11 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 311 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MOHAMMED MEHBUB HASAN

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: MANSFIELD J

DATE OF ORDER: 11 MAY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Migration Review Tribunal be joined as second respondent. 2. The appeal be dismissed. 3. The appellant must pay to the first respondent his costs of the appeal. 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 NSD 311 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MOHAMMED MEHBUB HASAN

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: MANSFIELD J

DATE: 11 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant was granted a Student (Temporary) Class TU (Subclass 560) visa on 2 June 2000 to study a Batchelor of Information Technology degree at Central Queensland University (the 2000 visa). That visa was valid until 15 March 2003. When issued, it was subject (inter alia) to Condition 8202 which was relevantly in the following terms: The holder (b) must …(i) attend at least 80% of the classes and tutorials scheduled for the course [in which enrolled], as evidenced by records of attendance of the education provider; or (ii) if attendance cannot be evidenced, achieve an academic result that is certified by the education provider to be at least satisfactory … 2 On 21 December 2000, that version of Condition 8202 was amended. Item 4 of Sch 4 of the Migration Legislation Amendment (Overseas Student) Act 2000 (Cth) prescribed as follows: 4. (1) This item applies to the following visas (and only those visas): (a) all student visas that are in effect when this item commences; (b) all student visas that are granted after this item commences but before 1 July 2001. (2) Condition 8202 of each visa to which this item applies is taken for all purposes to be as set out in subitem (3), instead of as set out in regulations made for the purposes of section 41 of the Migration Act 1958. (3) The condition is that: (a) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student – the holder is enrolled in a full-time course of study; and (b) in any other case – the holder is enrolled in a registered course; and (c) in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled: (i) for a course that runs for less than a semester – for the course; or (ii) for a course that runs for at least a semester – for each term and semester of the course; and (d) in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory: (i) for a course that runs for less than a semester – for the course; or (ii) for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course. (4) In this item: student visa means a visa described in the Migration Regulations 1994 as a Student (Temporary) (Class TU) visa. (5) Other expressions used in subitem (3) that are defined in the Migration Regulations 1994 have the same meaning as in those regulations, as in force from time to time. (6) After this item commences, the Minister may cancel a visa under section 116 of the Migration Act 1958, on the ground that the Minister is satisfied that the condition set out in subitem (3) of this item has not been complied with, even if some or all of the non-compliance happened before this item commenced. 3 As can be seen, in essence the conditions requiring attendance and certification of satisfactory academic performance were made cumulative rather than alternative. The effect of subitem 4(1)(a) and (2) is that that special condition on its commencement applied to the applicant's existing visa. 4 The significance of that amendment, in the present circumstances, arises from the appellant's application for a further Student (Temporary) (Class TU) visa on 15 March 2003 (the 2003 visa application), following the grant or renewal of various student visas which he had been given from time to time, and most recently on 2 June 2000 following his arrival in Australia on 6 February 1996, culminating in the 2000 visa. At the time of the 2000 visa, the applicant planned to study a Batchelor of Information Technology course at the Central Queensland University between 28 February 2000 and 31 December 2002, but his academic progress was a little slower than that. On 6 March 2003, he transferred from that course to study a Batchelor of Multimedia Studies course at that University, projecting to end his study by December 2004. Consequently, the relevant subclass for the 2003 visa application was Subclass 573 (Higher Education Sector). 5 Regulation 573.212 of Sch 2 to the Migration Regulations 1994 (Cth) prescribes a criterion to be satisfied at the time of the decision in the following terms: If the application is made in Australia, the applicant has complied substantially with the conditions to which the visa (if any) held, or last held, by the applicant is, or was, subject. That directs attention to the conditions imposed on the 2000 visa. 6 Information procured from Central Queensland University indicated that the applicant had unsatisfactory academic progress in the two academic terms or semesters of 2000 and 2001 and the first academic semester or term of 2002, but satisfactory academic progress for the second academic term or semester of 2002.