Mohammed v MIBP

[2017] FCCA 2356

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2356

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – applicant found not to be a genuine student – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

NABE v Minister for Immigration (No.2) [2004] FCAFC 263

SZBEL v Minister for Immigration (2006) 228 CLR 152

Applicant: ANWAR ALI MOHAMMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1152 of 2017

Judgment of: Judge Driver

Hearing date: 26 September 2017

Delivered at: Sydney

Delivered on: 26 September 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr D Eberl of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1152 of 2017

ANWAR ALI MOHAMMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant, Mr Mohammed, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 28 March 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Mohammed a temporary student visa.  Background facts relating to Mr Mohammed’s visa application and the decision of the Tribunal on it are set out in the Minister’s outline of submissions filed on 15 September 2017. 

Background

1. Mr Mohammed is a national of India. On 10 December 2007, Mr Mohammed was granted an initial student visa. On 30 January 2008, Mr Mohammed arrived in Australia[1]. On 3 December 2015, Mr Mohammed applied for the visa[2]. Between the application for the visa, and his initial entry into Australia, Mr Mohammed held either a student visa or an associated bridging visa.

   [1] Court Book (CB) 47

   [2] CB 1

2. On 8 December 2015, the delegate invited Mr Mohammed to comment on his study history, specifically that he had not studied between June 2012 and July 2014[3].

   [3] CB 12

3. On 22 December 2015, Mr Mohammed provided a response to the delegate[4]. Mr Mohammed claimed that:

   a)he had a two month break between courses and went to India to see his family. However, he was unable to return on time as he was sick and was hospitalised;

   b)on 8 October 2012, he commenced his advanced diploma and attended class. However, he sustained a back injury which prevented him from continuing to study;

   c)on 3 January 2013, while walking back from a train station, he was attacked by a group of young people, from which he sustained another back injury. He tried to defer his course, but the college told him that he would need to pay for the full course again and would not be able to start until April 2013;

   d)in March 2013, he returned to India to obtain medical treatment for his back injuries; and

   e)in June 2013, he returned to India as his mother was close to dying. He told the college and they moved his commencement to July 2013.

   [4] CB 16

4. On 16 March 2016, the delegate refused to grant Mr Mohammed the visa[5]. The delegate assessed Mr Mohammed against the criteria for a subclass 573 visa and found that Mr Mohammed did not meet clause 572.223(1) of the Migration Regulations 1994 (Cth) (Regulations) which requires the applicant to be a genuine applicant for entry and stay as a student.

   [5] CB 45

5. On 22 March 2016, Mr Mohammed applied to the Tribunal for review[6]. On 11 January 2017, the Tribunal invited Mr Mohammed to attend a Tribunal hearing and requested Mr Mohammed to provide all documents he intended to rely upon to establish that he met the visa criteria[7]. On 8 March 2017, Mr Mohammed provided the Tribunal with submissions and supporting material[8]. On 9 March 2017, Mr Mohammed attended a Tribunal hearing[9] and provided additional material in support of his application[10]

   [6] CB 52

   [7] CB 64

   [8] CB 80

   [9] CB 132

   [10] CB 136

Tribunal decision

1. On 28 March 2017 the Tribunal affirmed the delegate’s decision[11].

   [11] CB 187

2. The Tribunal assessed Mr Mohammed against the criteria for a subclass 573 visa[12]. The Tribunal was not satisfied that Mr Mohammed met clause 573.223(1)(a) of the Regulations.

   [12] CB 196 at [42]

3. The Tribunal accepted that Mr Mohammed had undertaken courses in Australia, and wished to undertake further courses in Australia as they are considered to be superior. The Tribunal also accepted that Mr Mohammed had closer family ties to India than to Australia[13].

   [13] CB 197 at [47]

4. The Tribunal accepted that Mr Mohammed had been enrolled in courses and successfully completed some of his courses. However, it noted that while successful completion of courses is indicative of the behaviour of a genuine student, it is but one of many considerations relevant to the assessment of whether Mr Mohammed intended to stay in Australia temporarily[14].

   [14] CB 197 at [48]

5. The Tribunal was not satisfied that Mr Mohammed had provided credible evidence as to the reasons he had undertaken his courses, for the following reasons[15]:

   a)the Tribunal had difficulty accepting why, as Mr Mohammed’s expressed intention was to study a Master of Business Administration (Masters), he would study for nine years at the vocational level[16];

   b)Mr Mohammed said that he had difficulty obtaining an offer of enrolment for a Masters as he did not have a student visa. The Tribunal had difficulty accepting this as students are able to study on bridging visas, and Mr Mohammed could have applied for the Masters prior to his last student visa expiring[17];

   c)the Tribunal viewed Mr Mohammed’s knowledge about the detail of the Masters course as superficial and lacking in detail. It was of the view that if Mr Mohammed were being truthful about his intention to study, he would have been able to provide detailed knowledge as to the course and its subjects[18]; and

   d)Mr Mohammed gave evidence that he wanted to open a business chain or franchise on return to India. When asked by the Tribunal about this, Mr Mohammed said he had not done any research and was unable to provide further details about it. The Tribunal was concerned by the lack of detail and research[19].

   [15] CB 197 at [51]

   [16] CB 198 at [52]

   [17] CB 198 at [52]

   [18] CB 198 at [53]

   [19] CB 198 at [54]

6. The Tribunal was of the view Mr Mohammed was using the visa program to maintain residence in Australia rather than for the purpose of undertaking a Masters[20].

   [20] CB 198 at [55]

7. The Tribunal was also concerned that Mr Mohammed had ceased studying in March 2016. When asked why, Mr Mohammed said he became depressed as his daughter was born in India and became ill and his father was very ill. Mr Mohammed also claimed that his wife was having medical issues, and he was stressed by reason of the rejection of his visa by the Department[21].

   [21] CB 198-199 at [56]

8. The Tribunal did not accept these reasons as being credible because, among other things[22]:

   a)there was no evidence before the Tribunal in relation to Mr Mohammed’s mental health. The Tribunal concluded if he could not study due to this, he would have seen a doctor as he had done in the past; and

   b)the Tribunal was of view that if Mr Mohammed was a genuine student he would have studied from March 2016 even while on his bridging visa, taking every possible opportunity to achieve academic progress.

   [22] CB 198-199 at [56]

9. Having considered all the material before it, the Tribunal was not satisfied that Mr Mohammed was a genuine applicant for entry and stay as a student, and it considered that the visa program was being used to maintain residence in Australia[23].

   [23] CB 199 at [58]-[60]

10. The Tribunal was not satisfied that Mr Mohammed met an essential requirement for the grant of a subclass 573 visa or any other Class TU visa, and affirmed the decision of the delegate[24].

    [24] CB 192-193 at [62]-[63]

The present proceedings

1. These proceedings began with a show cause application filed on 13 April 2017.  Mr Mohammed continued to rely upon that application.  The grounds in it are: 

   1. The Second Respondent (the Tribunal) committed Jurisdictional error as

   (i)It failed to consider that exceptional reasons exist and it was beyond the control of the applicant for granting student (temporary) class (TU) and applied the wrong interpretation of the regulation 573.223 (1)(a)

   2. The Second Respondent (the Tribunal) failed to ask itself the right question

   The Tribunal asked,

   (i)Whether the applicant enrolment in Master degree consider to be of academic progression.

   (ii)Whether the Tribunal may consider the matter to be referred to the Minister as the Tribunal has acknowledged that exceptional circumstances does exist in the applicant’s case such as prolonged medical illness in the family, Medical issues and suffering from the trauma of incident at workplace.

   3. Tribunal also took irrelevant consideration into account, ignoring the material provided by the applicant about medical certificates of the applicant, his father, mother, wife and daughter. Tribunal also fail to consider the series of circumstances surrounding applicant’s personal life and whether those circumstances were unusual and beyond applicant’s control.

   4. Tribunal also identified wrong issue about the applicant’s history about the applicant’s Visa refusal and failed to consider that in the past the applicant’s intention of study has never been questioned by visa officers when the applicant successfully obtained his visa since 2008 and successful renewals of applicant visa till 2015.

   5. Tribunal also have failed to consider that the applicant has satisfied the criteria of 573.223(1)(a) as the applicant

   (i)Is a genuine student as the applicant was regular student of his course prior to extension of his visa

   (ii)That Applicant has very strong family ties in India and due to family responsibility and illness in family the applicant has to stay in India to fulfil his family responsibility during his time of study.

   (iii Tribunal also failed to take into consideration that the Applicant’s prolonged stay in India which itself prove that that the applicant has no intention to make Australia his permanent residence. The Tribunal has failed to note that the Applicant has sufficient time since 2008 to make any application to stay as permanent residency, however The applicant has not made any application [to] date.

   (iv)The tribunal also have acknowledged the evidence of Applicant’s deferral in paragraph 10, 11, 12, 13, and 15 of the decision, however failed to comment and failed to consider the exceptional circumstances that were exist for and failed to consider whether an ordinary person would behave the same if he/she would be in the same circumstances as the Applicant and therefore created an error of law.

   (errors in original)

2. The application is supported by an affidavit filed with it.  Although that affidavit makes a number of factual assertions which are non-contentious, it attaches a number of documents which are reproduced in the book of relevant documents and is, in substance, a submission.  I treated the affidavit primarily as a submission. 

3. I have before me as evidence the book of relevant documents filed on 10 May 2017. 

4. I invited oral submissions from Mr Mohammed this afternoon. 

5. Mr Mohammed takes issue with the Minister’s response to Ground 5 in his application.  In essence, Mr Mohammed contends, as I understand it, that because of the significant number of courses he has undertaken during his time in Australia he should have been accepted as a genuine student.  The Tribunal considered the various courses undertaken by Mr Mohammed and listed his achievements at [5] of its decision[25]. 

   [25] CB 188-190

6. The Tribunal discussed with Mr Mohammed at its hearing the significance of those studies.  At [48],[26] the Tribunal accepted that Mr Mohammed had been enrolled in the courses described and had successfully completed the courses he claimed to have completed.  Nevertheless, at [52] and [53] of its reasons, the Tribunal reasoned that the numerous courses undertaken by Mr Mohammed over the period of nine years he has been in Australia did not establish he was a genuine student because he had come to Australia for the purpose of undertaking a Master’s in Business Administration and had, since his arrival, only undertaken a series of certificate and diploma courses. 

   [26] CB 197

7. The Tribunal was also concerned, as set out at [54] of its reasons, about Mr Mohammed’s unclear plans for the future and his lack of detailed knowledge about the Master’s of Business Administration course he was still proposing to undertake.  In my view, the conclusions reached by the Tribunal were open to it on the material before it.  The Tribunal considered the claims made by Mr Mohammed and the material he submitted.  The Tribunal complied with its code of procedure.

8. I otherwise agree with the Minister’s submissions in relation to the grounds of review advanced by Mr Mohammed. 

9. By Ground 1, Mr Mohammed alleges the Tribunal failed to consider that “exceptional reasons exist and it was beyond the control of the applicant for granting student visa” and that the Tribunal “applied the wrong interpretation” of clause 573.223(1)(a) of the Regulations.

10. Mr Mohammed does not identify what “exceptional reasons” the Tribunal ought to have considered. Exceptional reasons are not relevant to the decision to grant a visa under clause 573.223(1)(a)[27]. Nor does Mr Mohammed identify what he says is the correct interpretation of clause 573.223(1)(a). In the absence of further and better particulars, no arguable case for the relief claimed is disclosed by this ground.

    [27] c.f. e.g. clause 572.227(c)(iv)

11. By Ground 2, Mr Mohammed contends the Tribunal failed to ask itself the right question. Mr Mohammed says that the Tribunal asked:

    (i)Whether the applicant enrolment in Master degree consider to be of academic progression.

    (ii)Whether the Tribunal may consider the matter to be referred to the Minister as the Tribunal has acknowledged that exceptional circumstances does exist in the applicant’s case such as prolonged medical illness in the family, Medical issues and suffering from the trauma of incident at workplace.

    (errors in original)

12. The precise nature of the error alleged is not clear from the particulars provided. In relation to the first particular, the Tribunal considered Mr Mohammed’s evidence that the purpose of his study was to enrol in a Masters. The Tribunal formed the view that if he were a genuine student, as he contended, he would have taken every opportunity to achieve academic progress, including enrolling in the Masters[28]. The Tribunal’s findings were open to it, on the material before it.

    [28] CB 198-199 at [56]

13. In relation to the second particular, it is not clear from the decision that the Tribunal was ever asked, or ever considered, referring the matter to the Minister for consideration of Mr Mohammed’s circumstances. No such duty arises during the Tribunal’s review of a decision of a delegate.

14. No arguable case is established by Ground 2.

15. By Ground 3, Mr Mohammed alleges:

    a)the Tribunal took into account an irrelevant consideration, and

    b)the Tribunal failed to consider the circumstances of Mr Mohammed’s personal life which were beyond his control.

16. Mr Mohammed does not identify what irrelevant material the Tribunal considered. There is nothing on the face of the Tribunal’s decision to indicate it took into account irrelevant considerations. In the absence of further particulars or evidence, no arguable case is disclosed.

17. In relation to the second limb, the Tribunal set out Mr Mohammed’s evidence about his personal life in some detail and specifically referred to his health issues and those of his father, wife, and daughter[29]. These claims were considered by the Tribunal[30]. It is apparent that the Tribunal considered all of Mr Mohammed’s claims and no error arises from its consideration.

    [29] CB 193 at [16]; 194 at [26]-[27]; 195-196 at [34]-[38]

    [30] CB198-199 at [56]

18. No arguable case for the relief claimed is disclosed by Ground 3.

19. By Ground 4, Mr Mohammed alleges the Tribunal identified the wrong issue in relation to Mr Mohammed’s visa history. Mr Mohammed alleges the Tribunal failed to consider that his previous intentions to study have not been questioned by officers of the Department.

20. While it is not clear from the ground, it appears that Mr Mohammed is alleging that the Tribunal should not have considered whether he was a genuine student, as, prior to 2015, whether or not Mr Mohammed was a genuine student had never been questioned.

21. In its decision, the delegate was not satisfied that Mr Mohammed was a genuine applicant for entry and stay as a student[31]. Mr Mohammed can be taken to have been on notice that this was a dispositive issue for the Tribunal’s review[32]. Further, the Tribunal was required to satisfy itself that Mr Mohammed met the criteria for the grant of the visa, including whether he was a genuine student[33]. Previous decisions of the Department are not binding on the Tribunal; it must apply the Regulations. In the circumstances, no arguable case for the relief claimed is disclosed by Ground 4.

    [31] CB 50

    [32] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [35]

    [33] Clause 573.223(1)(a) of the Regulations

22. By Ground 5, Mr Mohammed contends that the Tribunal failed to consider that he satisfied the criteria of clause 573.223(1)(a). In support of this contention, Mr Mohammed alleges the Tribunal failed to consider that:

    a)he was a genuine student. It is plain, however, from the decision that the Tribunal correctly identified that this was its task on the review[34];

    b)he had strong family ties in India. The Tribunal accepted this claim but was not satisfied on the balance of the material before it that Mr Mohammed was a genuine temporary entrant[35];

    c)Mr Mohammed has had sufficient time, since 2008, to make an application for permanent residency, but has not made such an application. To the extent that Mr Mohammed contends that it ought to have been considered, the claim was not made in his correspondence, the statements which were provided to the delegate and Tribunal, and nor is it apparent from the Tribunal file that Mr Mohammed made such a claim in oral evidence before the Tribunal. Accordingly, this was not a factor that the Tribunal was required to consider[36];

    d)there were exceptional circumstances for why Mr Mohammed deferred his course on a number of occasions. The Tribunal considered Mr Mohammed’s claims, including his claims regarding his travel to India and deferring of courses to receive treatment. On the balance of the material before it, the Tribunal was not satisfied Mr Mohammed genuinely intended to stay in Australia temporarily. No error is disclosed by the Tribunal’s reasoning; and

    e)an ordinary person may behave in the same way. It is not the role of the Tribunal to apply an “ordinary person” test. The Tribunal was required to consider Mr Mohammed’s circumstances and form a view on whether it considered he genuinely intended to stay in Australia temporarily.

    [34] CB 196-197 at [42]-[46]

    [35] CB 197-199 at [47], [49]-[62]

    [36] NABE v Minister for Immigration (No.2) [2004] FCAFC 263

1. No arguable case is disclosed by Ground 5.

2. In his affidavit made on 13 April 2017, Mr Mohammed alleges that he has limited understanding of English and at the hearing, the Tribunal did not understand his explanations due his limited language abilities.

3. Mr Mohammed was assisted by an interpreter in the Hindi language at the hearing[37]. On the face of the Tribunal’s decision, there is nothing to suggest that Mr Mohammed raised with the Tribunal any issues with the translation services provided by the interpreter. In the absence of a transcript the Court can reasonably infer that the Tribunal’s decision is an accurate reflection of what occurred at the hearing. No arguable case is disclosed by this allegation.

   [37] CB 132

4. Further, Mr Mohammed annexes a number of documents being certificates and diplomas awarded to Mr Mohammed. Mr Mohammed has not identified how these documents relate to his grounds of review. They were considered by the Tribunal. Any invitation to the Court to consider the documents is tantamount to an invitation to engage in merits review. No arguable case is disclosed by the affidavit.

Conclusion

1. I conclude that Mr Mohammed has been unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale as it applied when the judicial review application was filed.  Mr Mohammed did not wish to be heard in relation to costs.

3. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:   29 September 2017