MOHAMMED v Minister for Immigration

[2014] FCCA 2970

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2970

Catchwords:
MIGRATION – Application for review of decision of the Migration Review Tribunal – no error of law or jurisdiction alleged – determination of whether exceptional reasons existed for the purpose of cl.572.227 of the Migration Regulations 1994 (Cth) a matter for the Tribunal – no error of jurisdiction on the part of the Tribunal.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), subregs.1(40)2, 1.41(1), cl.572.227

Kim v Minister for Immigration and Citizenship [2008] FMCA 1577
Bo Hyung Kim v Minister for Immigration and Citizenship [2009] FCA 161

Applicant: HAJIPASHA MOHAMMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 18 of 2014

Judgment of: Judge Whelan

Hearing date: 9 December 2014

Date of Last Submission: 9 December 2014

Delivered at: Melbourne

Delivered on: 9 December 2014

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr N Rogers

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application filed 6 January 2014 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 18 of 2014

HAJIPASHA MOHAMMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

1. This is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 11 December 2013.[1] The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the Applicant a (Subclass 572) student visa.[2] The Applicant is an Indian citizen who came into Australia on a tourist (Class TR) visa, and on 25 June 2013 applied for a student visa. The Department of Immigration and Citizenship (“the Department”) wrote to the Applicant on 26 June 2013 noting that he was required to demonstrate exceptional reasons as to why he should be granted the visa he sought. 

   [1] Court Book filed 8 May 2014 at pp.78-81.

   [2] Ibid at pp.42-46.

2. In response to that the Applicant sent a document to the Department outlining his reasons and his claims, and that document and statement can be found at pages 34 to 36 of the Court Book.[3] On 15 August 2013, the delegate refused to grant the application, and on 4 September 2013 the Applicant applied to the Tribunal for a review of that decision. He was invited to appear before the Tribunal to give evidence and present arguments which he did at a hearing on 11 December 2013.

   [3] Court Book filed 8 May 2014.

3. Having heard from the Applicant, the Tribunal made its decision to affirm the delegate’s decision, and on 6 January 2014 the Applicant lodged this application for review.

The Tribunal’s decision

1. The Tribunal found that having regard to the Applicant’s current enrolment, the relevant subclass of visa was 572. As Counsel for the First Respondent has stated today, that class of visa is subject to certain conditions, and of relevance to these proceedings are the conditions set out in cl.572.227 of the Migration Regulations 1994 (Cth)

   
   

   (“the Regulations”).

2. The Applicant fell within the requirements of cl.572.227 of the Regulations because he satisfied subcls.(a), (b) and (c) of those provisions, that is:

   ·He was in Australia at the time of making the application;

   ·He was the holder of a tourist visa; and

   ·He was seeking to study courses which were covered by the provisions of subreg.1.40(2) of the Regulations. In accordance with subreg.1.41(1) of the Regulations he was, for the purposes of the Regulations, covered by assessment level 4.

3. The result of that was that the “applicant was required to establish “exceptional reasons” for the grant of a Subclass 572 visa: CB 80, [14]”.[4] The Tribunal considered the matters that were contained in written statements provided by the Applicant and also oral submissions he made at the hearing. The Tribunal accepted that the Applicant wished to study in Australia, and that to do so would assist him to develop his business and to improve his general employability. 

   [4] Minister’s Written Submissions filed 25 November 2014, p.2 at para.14.

4. The Tribunal also accepted that the Applicant intended to return to India upon completion of his studies. The Tribunal also accepted that the Applicant might have difficulties in obtaining a student visa in India because of his poor English levels, and the Tribunal also accepted that the Applicant had made an investment in his studies to date and that this would be wasted if he was not granted the visa he sought.[5] 

   [5] Court Book filed 8 May 2014, p.81 at para.17.

5. However, the Tribunal considered that the matters raised by the Applicant were commonplace amongst applicants for a student visa and were not in any way exceptional. 

Grounds for Review

1. The application for review set out the following grounds for review:

   1.I am not happy with tribunal decision, applying for judicial review for legitimate decision

   2.I do have exceptional circumstances behind lodging the student visa application onshore. 

   3.Apart of this year “during the MRT review processing”, rest of the previous History in Australia never reach the breach as I have done my education time to time.

   4.Even during the Tribunal Review processing I never have breached the 8202 condition , always I was studying 

   5.Tribunal member has not even given some extension to provide the documents.

   6.I did not even find any procedural fairness in Member decision.

   7.S.477,Migration Act 1958, Judicial review can be lodged in 35 days’ time frame after tribunal review has been finalised[6]

   [6] Application filed 6 January 2014 at p.3.

2. In oral submissions to the Court today, the Applicant was unable to identify any legal error made on the part of the Tribunal, and his submissions essentially reiterated the matters that he put before the Tribunal. 

The First Respondent’s submissions

1. The First Respondent in oral and written submissions[7] submitted that the Applicant was required to meet the provisions of cl.572.227 of the Regulations, and that this meant that the Applicant had to establish to the satisfaction of the Tribunal that there were exceptional reasons for the grant of the visa.

   [7] Minister’s Written Submissions filed 25 November 2014,

2. In the written submissions the First Respondent took the Court to the judgments of Smith FM (as he then was) in Kim v Minister for Immigration and Citizenship [2008] FMCA 1577 (“Kim”) and to the judgment of Buchanan J in his judgment upholding the decision of the Federal Magistrate at first instance[8] where his Honour had the following to say:

   However unwelcome the decision of the MRT might be to the appellant and regardless of whether minds might differ about how the factors relied upon by the appellant might, in individual cases, be assessed the matters relied upon by the appellant and the assessment of her circumstances were matters for the judgment of the MRT. They are not matters for judgment by this Court and were not matters for judgment by the FMCA. The appellant was required to establish, to the satisfaction of the relevant decision maker,

   in this case, the Migration Review Tribunal –

   [8] Bo HyungKim v Minister for Immigration and Citizenship [2009] FCA 161

   that there were exceptional circumstances for her to be granted a subclass 573

   in that case –

   visa.[9]

   [9] Ibid, pp.6-7 at para.16.

3. The Minister submitted to the Court that the Tribunal’s finding that there were not exceptional reasons was open on the evidence. The decision was one that took into account relevant considerations, and did not take into account irrelevant ones. 

Conclusions

1. The starting point in consideration of the application is the grounds of review:

   ·Ground 1 asserted by the Applicant is a complaint that the Applicant was “not happy”[10] with the decision. It does not allege any jurisdictional error on the part of the Tribunal, and in oral submissions, the Applicant has not alleged any such jurisdictional error;

   ·Ground 2 asserts that the Applicant does “have exceptional circumstances”.[11] However, that was a matter for the Tribunal to determine. It is not the role of the Court to determine whether the circumstances put forward by the Applicant were exceptional, but only to consider if the Tribunal, in its application of the regulations, made a jurisdictional error;

   ·Grounds 3 and 4 assert that the Applicant has not ‘breached’. There is no explanation of what requirements it is alleged that the Applicant has not breached, and in any event, these were not considerations relevant to the Tribunal’s determination of this matter;

   ·Ground 5 asserts that the Tribunal member did not provide an extension of time to provide documents. There is, however, no evidence that the Applicant sought any extension of time; and

   ·Ground 6 asserts that the Applicant was denied procedural fairness. The Applicant was on notice of the requirement that he establish exceptional reasons in order to be granted the visa he sought. He submitted a written statement of the circumstances on which he relied. The Applicant was invited to attend a hearing, which was postponed at the request of his agent. He was represented in the hearing and given an opportunity to make submissions. I am satisfied that the Tribunal complied with the procedural fairness requirements of the statute. 

   [10] Application filed 6 January 2014 at page 3.

   [11] Ibid.

2. The decision of Smith FM in Kim makes it clear that the Tribunal has a nearly unconfined discretion to address the particular circumstances of the case, and to consider whether an applicant should be made an exception to a ban on the grant of the visa sought in Australia. This was upheld by Buchanan J when the matter went on appeal. 

3. The Tribunal, at paragraph 17 of its decision, sets out and considers the matters raised by the Applicant.[12] The Tribunal then goes on at paragraph 18 of its decision to conclude that those matters were not in any way exceptional.[13]

   [12] Court Book filed 8 May 2014 at p.81.

   [13] Ibid.

4. The assessment of the Applicant’s circumstances was a matter for the Tribunal. The Applicant was required to establish to the satisfaction of the Tribunal that there were exceptional reasons. I am satisfied that the Tribunal approached that exercise of discretion appropriately, and did consider the circumstances put forward by the Applicant. These were not such as to satisfy the Tribunal that they were exceptional reasons for the purposes of the Regulations.

5. I am satisfied that the Tribunal made no error of jurisdiction in dealing with the application.

6. I therefore dismiss this application. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  19 December 2014