Mohammed v Minister for Immigration

[2018] FCCA 1909

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1909

Catchwords:
MIGRATION – Application for judicial review – whether the Applicant fulfilled criteria for grant of Visa – whether Tribunal has discretion to waive
cl. 487.225 of the Migration Regulations 1994 (Cth) – relevance of comments by Magistrate in criminal case – Tribunal had no discretion to waive
cl. 487.225 – no error by the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.60, 65, 349, 351(1)

Migration Regulations 1994 (Cth), cls.487.225, 487.225 (3)(a)

Applicant: ABUTAHER MOHAMMED

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2629 of 2016

Judgment of: Judge McNab

Hearing date: 12 June 2018

Date of Last Submission: 12 June 2018

Delivered at: Melbourne

Delivered on: 27 July 2018

REPRESENTATION

Applicant in person

Counsel for the Respondent: Mr Wood

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. The application filed 5 December 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2629 of 2016

ABUTAHER MOHAMMED

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was listed for hearing on 11 April 2018 as a show cause hearing. On 5 December 2016, an application was filed seeking relief in the form of constitutional writs against a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated

   
   

   11 November 2016 not to grant the Applicant a 487 Skilled Regional Sponsored Visa (“Visa”).

Background

1. The issue before the Tribunal was whether the Applicant satisfied the criteria for the Visa when they applied to the Tribunal. The criteria is set out in cl. 487.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). In short, the Regulations required the Applicant to be sponsored in order to obtain a valid Visa. The Applicant was sponsored at the time of his Visa application by his first cousin, Mrs Arshiya Begum (“the Sponsor”). By an email dated 20 February 2015, the Sponsor emailed the Department of Immigration and Border Protection advising that she wished to withdraw her sponsorship of the Applicant. The email stated that the Sponsor wished to withdraw her sponsorship due to the Applicant’s criminal activity. She said that that she did not wish to sponsor a criminal, and that her husband was of the same view. There was an AFP police check relating to the Applicant attached to the email.

2. On 3 September 2015, the Department wrote to the Applicant requesting further information and referred to the correspondence from the Sponsor withdrawing her sponsorship of the Applicant.

3. On 29 September 2015 the Applicant’s agent emailed the Department requesting additional time to respond to the Department’s request for information. The email stated that the Applicant was trying to contact the Sponsor in relation to the withdrawal of sponsorship, and that the Applicant would inform the Department as soon as he received any information.  The Department did not receive any further information from the Applicant.

4. On 4 November 2015 a delegate of the first respondent refused the Visa application on the grounds that the Applicant did not satisfy the requirements of the Regulations in relation to sponsorship.

5. On 24 October 2016, a hearing was held before the Tribunal, at which time the Applicant requested that the hearing be deferred so that he could speak with the Sponsor. The Tribunal granted the Applicant’s postponement request. 

6. A further hearing was scheduled for 9 November 2016.

7. By a letter dated 25 October 2016, the Tribunal wrote to the Applicant stating that if the former sponsor was willing to resume sponsoring the Applicant, the Tribunal would request that the former sponsor attend the Tribunal hearing in person to confirm her identity and her intentions in relation to the sponsorship of the Applicant.

8. On 2 November 2016, the Applicant’s agent emailed the Tribunal notifying it that it was instructed that the Sponsor could not attend the Tribunal hearing but was willing to write a letter and, if possible, give authorisation to the Sponsor’s husband so that he could appear as a witness. The Applicant’s agent advised the Tribunal that if the Tribunal would allow the sponsor’s husband to attend the hearing, the Applicant would not be attending in person (but otherwise would be appearing by telephone).

9. By emails dated 4 November 2016 and 7 November 2016, the Applicant’s agent informed the Tribunal that neither the Sponsor nor the Sponsor’s husband would be attending the hearing. The Applicant attended the resumed hearing before the Tribunal by telephone on

   
   

   9 November 2016 and on 11 November 2016 the Tribunal made its determination affirming the decision under review.

10. The Tribunal found that at the time of the Visa application the Applicant was sponsored by Sponsor and that she had subsequently withdrawn her this sponsorship and had refused to resume her sponsorship of the Applicant.[1]

    [1] Tribunal decision [10].

11. The Tribunal was not satisfied that the Applicant was, at the time of its decision, sponsored by a relative who met the requirements of

    
    

    cl. 487.225 (3) (a).[2]

    [2] Ibid [11].

12. At [10] of the Tribunal’s decision, the Tribunal set out the oral evidence of the Applicant and the delegate’s decision.

Grounds of review

1. The Applicant’s grounds of review were as follows:

   1.I am applying Judicial Review at Federal circuit court under the s.476 of the Migration Act 1958 related to federal circuit court regulations.

   2.I have 487 subclass applied for the visa on 7 October 2011 which was Skilled sponsored under Family relative in designated area as I was eligible for.

   3.Time of the application I was eligible to apply the application of 487 Subclass under the criterion of Migration act 1958.

   4.The delegate refused to grant the visa because I did not satisfy cl.487.225 of Schedule 2 to the regulations because on 20 February 2015, my sister "Ms A Begum (the Applicant's sponsor)" stating that the sponsor withdrew her s.487 sponsorship of the Applicant.

   5.But there are some family clashed happened in between me and my sister family from India as they led my sister's husband force her to withdraw the Sponsorship but there wasn't no intention to withdraw.

   6.I never had wrong immigration history previously, just made my own justification of I am in Australia for long time and lived in regional area which is low population growth area which is Tasmania State.

   7.Due to force after four years wait for the application all of sudden sponsor gone withdrawal should make suspicious to me and Immigration which wasn't considered by Tribunal and Immigration , this matter need to be reviewed by Court.

   8.Justice of Federal Circuit court should summon the sponsor to come to court to look behind the withdrawal of sponsorship.

   9.Relationship is relationship, it doesn't go with withdrawal.

   10.And also this is Australia, women should not live under coercion.

   11.I will leave Australia without any problem, but at least my sister will live better life as every Australian woman live in, that is what I am expecting and also family members in India wishing.

   12.Court and Justice may consider this matter as whistle-blower matter for consideration of Australian Nation best Interests. Justice should not look in to my criterion first.

   13.Therefore, I am requesting the federal circuit court to consider my situation under exceptional circumstances where I request the Judge and court see in this matter as serious for future violence stop to save the freedom.

Consideration

1. When the matter was before the Court, on 11 April 2018, I expressed to the representative of the Minister then appearing that I had an interest in ascertaining whether there was some other decision the Tribunal could have made, given the particular circumstances of this case. The circumstances referred to are set out in the reasons for decision of Magistrate Grasso, which go into some detail as to the context for the Applicant being convicted and placed on a good behaviour bond on 25 May 2015.

2. The decision of Magistrate Grasso in the  Magistrates Court of South Australia’s Courts reasons in Police v Mohammed (File No MCPAD-15 2296) were as follows (transcribed exactly):

   Mr Mohammed, you are a 30-year-old man who has come to this country with a view to migrating here. You are married and you are a man of good character.

   You were left in a terrible situation in the months June to July of 2013 by a person who seems to me was unscrupulous in that he left the country, was uncontactable. He was the owner of a business you managed for him.  He threw you in as manager of a business which had two components to it and gave you no real training as to what you should and should not be doing and what you could and could not be doing.

   I am going to say this at the outset. It is in my view that the offending that you have pleaded guilty to today, these two counts of engaging in conduct for the financial advantage of another person should not be looked at or taken as a reason for refusing your permanent residency.

   I am not going to go into the mechanics of how you came to commit these offences. They are slightly complicated I think I have a grasp on them now, and it was not a question of robbing Peter to pay Paul it was a matter of simply transferring funds so that the petrol station component of the business of which you were a manager was able to pay its bills through income received through Australia Post.  But at the end of the day, no one lost any money, despite the fact that you misappropriated on count 1 $36,000 and on count 2 $1500. It was a question of waiting for the employer to come back to actually pay the bills that had been paid for by Australia post funds by his paying back to Australia post the amount taken from Australia Post to pay his service station bills. As I said in my view it seems he is the real culprit in all of this.

   You admitted to the police that what you did was wrong, however you did not understand it was unlawful and I accept that explanation. I think you were taken advantage of.

   You are an intelligent man you have to lift tertiary qualifications, despite all this you are struggling to make ends meet by working as a taxi driver.  You are married and of course one day you hope to have a family. I think you would make a great Australian citizen.

   This has been a terrible thing that’s been done to you rather than what you have done to the Commonwealth government. The amount of money involved is large and had there been any element of dishonest gain for you or somebody else imprisonment would have been the starting point and the only issue would have been whether I would suspend or not.  I do not need to go down that road at all because in my view the criminality of the offending in this matter is at the lowest end of the bottom of the scale as could be imagined.

   In these circumstances a good behaviour bond is the penalty that I am going to impose. Whether I should or should not record a conviction is regrettably not one where I do have a lot of leeway.  Certainly pass the test of good character but the amount involved and the fact that you knew that what you were doing was wrong cause me to say that it is quite clear on the authorities that I have to record a conviction.

   You will be convicted. You will be placed on a $2000 good behaviour bond for a period of 18 months.

   You will pay the $287.50 filing fee.

   Mr Mohammed, if in the next 18 months you do not commit any more offences that will be the end of this matter but if you commit another offence, another criminal offence, you will come back to get sentence for this again plus whatever else you do wrong will attract another penalty. You understand that?

   Defendant: yes

3. None of the grounds of review provide a basis for setting aside the Tribunal’s decision and no error is demonstrated in the Tribunal’s decision, whether jurisdictional or otherwise. The Tribunal was not in error when it found that the Applicant did not satisfy the criteria for the grant of the Visa.

4. As a result of an invitation from the Court, the First Respondent filed supplementary submissions going to the question of whether the Tribunal had any discretion to make a decision other than to dismiss the Application before it.   

5. I accept the First Respondent’s submissions that the Tribunal had no discretion to make a different decision. As was explained in clear submissions prepared by Mr N. Wood of Counsel, the Tribunal’s task was to review the delegate’s decision under s.65 of the Migration Act1958 (Cth) (“the Act”) to refuse to grant the Applicant a subclass 487 Visa. The Tribunal’s task was to stand in the shoes of the delegate and it was entitled to exercise any powers and discretions that were conferred on the delegate.[3] The delegate’s task was to grant the Visa if the delegate was satisfied that the Visa criteria are satisfied and the other requirements of s.65 were met and, if not so satisfied, to refuse to grant the Visa. The delegate is either satisfied that the criteria or the delegate is not. The Tribunal, standing in the shoes of the delegate, is similarly limited.

   [3] Migration Act 1958 (Cth) s.349.

6. On the evidence before the Tribunal, the Applicant did not satisfy the sponsorship criterion in cl. 487.225 of the Regulations. It follows that on the evidence before the it that the Tribunal could not be satisfied that the Applicant met the criterion, that it had no power to waive that criterion, and was thereby compelled by s.65(1)(b) to affirm the delegate’s decision to refuse to grant the Visa.

7. The Tribunal had procedural discretions which it exercised to adjourn the review to enable the Applicant more time to obtain evidence he was sponsored. It is not suggested by the Applicant that the Tribunal acted unreasonably in the circumstances this case by not exercising such a discretion.

8. As there was no discretion to waive the sponsorship requirement and there appears to be no error on the part of the Tribunal, there is no power available to this Court to simply send the matter back to the Tribunal for reconsideration. [4]

   [4] See section 349(2)(c) of the Act.

9. Section 351(1) of the Act states that:

   If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the Applicant, whether or not the Tribunal had the power to make that other decision.

10. The circumstances faced by the Applicant clearly affected the Magistrate hearing the criminal charges against him. The Applicant presented before the Court as a sincere person who believed strongly that a wrong had been done as a result of the actions of the person who had been his Sponsor. That view was shared by the Magistrate Grasso. The Applicant told the Court that he is currently working full time in a retail business as console operator in Burnie, Tasmania. He also said that he had a person who was prepared to act as a Sponsor for the purposes of a Visa application.  He is supporting his family.

11. This may be a matter in which the Minister may make a discretionary decision pursuant to s.351(1) of the Act. That section allows for Ministerial intervention to substitute the decision of the Tribunal with one that is favourable to the Applicant after reviewing the material available to the Department. This is a matter that the Applicant should obtain legal advice on.

Conclusion

1. Given the above circumstances, I must dismiss the application.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 27 July 2018