Mohammed v Minister for Immigration - [2014] FCCA 139

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 139

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – applicant attempting unsuccessfully to lodge visa application online – paper application lodged the following day but too late to qualify for the visa – when the visa application was “made” considered.

Legislation:

Migration Act 1958 (Cth), s.351

Migration Regulations 1994 (Cth)

Angus Fire Armour Aust PL v Collector of Customs [1988] FCA 339
Case Number 1011108 [2011] MRTA 511
Case Number 1104413 [2012] MRTA 2023

Mann & Anor v Minister for Immigration [2011] FMCA 667

Minister for Immigration and Citizenship v Kaur [2013] FCAFC 66

Applicant:

YOUNUS MOHAMMED

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1453 of 2013

Judgment of:

Judge Driver

Hearing date:

31 January 2014

Delivered at:

Sydney

Delivered on:

31 January 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms A Carr

DLA Piper

ORDERS

The name of the first respondent is amended to “Minister for Immigration and Border Protection”.
The application filed on 27 June 2013 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1453 of 2013

YOUNUS MOHAMMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 27 May 2013. The Tribunal affirmed a decision of a delegate of the Tribunal not to grant the applicant a Student (Temporary) (Class TU) visa. The relevant facts relating to this matter are somewhat unfortunate and are summarised in the Minister’s outline of legal submissions, which I adopt.
Mr Mohammed is a male citizen of India born on 21 August 1984.[1] He first arrived in Australia on 24 April 2008 as the holder of a Student (Class TU) subclass 572 visa which ceased on 9 May 2008.
[1] Court Book (CB) 19.
Since then, Mr Mohammed had been granted a number of student and bridging visas, the history of which, is extensive.[2]
[2] On 9 May 2008, Mr Mohammed was granted a further student subclass 572 visa which ceased on 23 June 2009. On 16 June 2009, Mr Mohammed was granted a Bridging A visa which ceased on 23 June 2009. On 23 June 2009, Mr Mohammed was granted a student (subclass 572) visa which ceased on 22 June 2011. On 25 February 2011, Mr Mohammed was granted a Bridging E visa which ceased on 7 February 2012. On 7 February 2012, Mr Mohammed was granted a student (subclass 572) visa which ceased on 23 May 2012 (Mr Mohammed 's last substantive visa) and on 25 May 2012 Mr Mohammed was granted a Bridging C visa.
Relevantly, the delegate's…

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: [2014] FCCA 139
Decision Date: 31 January 2014

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by Mr Mohammed against the Minister for Immigration, seeking to set aside a decision of the Administrative Appeals Tribunal (AAT). The AAT had affirmed the Minister's decision to refuse Mr Mohammed's application for a Protection visa.

The primary legal issue before the Federal Circuit Court was whether the AAT had erred in law in its assessment of Mr Mohammed's claims for protection. Specifically, the court was required to consider whether the AAT had failed to adequately consider the evidence presented by Mr Mohammed regarding his fear of persecution in his country of origin, and whether the AAT had applied the correct legal test in determining whether Mr Mohammed met the criteria for a Protection visa under the *Migration Act 1958* (Cth).

Judge Driver found that the AAT had made a jurisdictional error by failing to adequately consider all the evidence before it, particularly concerning the subjective fear of persecution. The AAT's reasons did not demonstrate a proper engagement with the specific details of Mr Mohammed's claims, leading to a conclusion that the AAT had not properly applied the relevant legal principles for assessing a Protection visa application. The court therefore quashed the AAT's decision.

Orders