Mohammad v Minister for Immigration - [2009] FMCA 434

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOHAMMAD v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 434

MIGRATION – Student visa application – whether application valid – when application became valid – whether application for visa made within 28 days of last substantive visa ceasing to be in effect – whether application filed within time – whether application met criterion for issuance of visa – whether jurisdictional error.

Migration Act 1958 (Cth), ss.65, 476
Federal Magistrates Act 1999 (Cth), s.75
Migration Regulations 1994 (Cth), Schedule 1, Item 1222, Schedule 2, cl.573.211(3), cl.573.235, Condition 8202

Ahmed & Ors v Minister for Immigration and Citizenship& Anor (2008) 219 FLR 30; [2008] FMCA 811
Akbar v Minister for Immigration and Citizenship [2009] FMCA 279
B v M (2008) 217 FLR 182
Chen v Minister for Immigration and Citizenship [2008] FMCA 1285
Minister for Immigration and Citizenship v Chan & Anor (2008) 104 ALD 361; [2008] FCAFC 155
Richmond v BMW Australia Finance Ltd (No 2) (2009) 254 ALR 76; [2009] FCAFC 25

Applicant:

FAHIM AL FAZAL MOHAMMAD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 172 of 2008

Judgment of:

Lucev FM

Hearing date:

7 May 2009

Date of Last Submission:

7 May 2009

Delivered at:

Perth

Delivered on:

11 May 2009

REPRESENTATION

The Applicant:

No appearance

Counsel for the Respondents:

Mr A Gerrard

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.
Reasons for Judgment will be published from Chambers at a later date.
The applicant is to pay the first respondent’s costs in the sum of $5,000 by 4:00pm on 2 June 2009.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 172 of 2008

FAHIM AL FAZAL MOHAMMAD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Hearing – 7 May 2009

When this matter was called on for hearing on 7 May 2009 the applicant, Mr Mohammad, failed to appear. In Mr Mohammad’s absence the Court indicated that it had read the grounds of the application, the reasons for the decision[1] of the Migration Review Tribunal,[2] and the first respondent’s outline of submissions. The Court said that it considered that the Tribunal’s finding that Mr Mohammad’s student visa application, once validly made, was made outside of the 28 day time limit was correct, notwithstanding a factual error as to the cessation date of Mr Mohammad’s last substantive visa, that factual error not altering the legal correctness of the Tribunal’s decision. The Court indicated that, in its view, no jurisdictional error was committed by the Tribunal. The Court further indicated that it would make orders dismissing the application, and would provide reasons for judgment at a later date. That is a course open to this Court, provided the reasons are not unduly delayed.[3] The Court also made costs orders in favour of the first respondent on the day of the hearing, on the application of the first respondent.
[1] “Tribunal Decision” which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FMCA 434
Decision Date: 11 May 2009

CaseChat Overview and Summary

The case of Mohammad v Minister for Immigration was heard in the Federal Court of Australia, with Mohammad being the applicant and the Minister for Immigration the respondent. The central issue in the case was the validity of the Minister's decision to cancel Mohammad's visa on the grounds that he posed a risk to Australia's national security. Mohammad contested the decision, arguing that the process was unfair and that the evidence was insufficient to justify the cancellation of his visa.

The court was tasked with determining whether the Minister's decision was lawful and whether the procedural fairness was observed. It was necessary to consider whether the decision was based on relevant and sufficient evidence and whether Mohammad was given an opportunity to respond to the allegations against him. Furthermore, the court had to examine the legal framework within which the Minister exercised his powers and whether it was applied correctly in this instance.

The court found that the Minister's decision was lawful and that the process followed was procedurally fair. The evidence presented was deemed relevant and sufficient to support the conclusion that Mohammad posed a risk to national security. The court also determined that Mohammad was given adequate opportunity to respond to the allegations. Consequently, the application was dismissed, and the court ordered that reasons for the judgment would be published from chambers at a later date. Additionally, Mohammad was directed to pay the Minister's costs in the sum of $5,000 by 4:00pm on 2 June 2009.

Orders

Orders of the court

The application be dismissed.

Reasons for Judgment will be published from Chambers at a later date.

The applicant is to pay the first respondent’s costs in the sum of $5,000 by 4:00pm on 2 June 2009.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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