MOHAMMED v Minister for Immigration

[2017] FCCA 1919

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1919

Catchwords:
MIGRATION – Application for judicial review – Student (Subclass 573) visa – no matters of principle – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), reg.1.40A

Applicant: WASEEM MOHAMMED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2217 of 2015

Judgment of: Judge Riethmuller

Hearing date: 19 July 2017

Date of Last Submission: 19 July 2017

Delivered at: Melbourne

Delivered on: 19 July 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2217 of 2015

WASEEM MOHAMMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 2 September 2015 affirming the decision of a delegate of the first respondent, to cancel the applicant’s Student (Subclass 573) visa.  The applicant is a citizen of India.  He was granted a student visa under Subclass 573 on 11 October 2012. 

2. On the basis of what has become known as “the fast-track process”, he was to undertake some English language studies, a Diploma of Computing and a Bachelor of Information Technology at Deakin University.  The Diploma and Bachelor’s degree were connected.  The visa was to be valid until 13 March 2016. 

3. The applicant completed his English course, however, he did not complete his studies in the Diploma of Computing or Bachelor of IT, and ceasing instead shortly after he had arrived on 2 July 2013.  On 15 July 2013, he then enrolled in a Certificate IV in Accounting at the Australian Learning, Teaching and Education Centre, completing that course in July 2014.  In September 2014, he then enrolled in a Certificate III and a Certificate IV in Commercial Cooking at the Australian Institute of Technical Training.

4. Not surprisingly, by this point the Department was concerned that a visa, which had been granted to undertake a Bachelor of Information Technology, was being utilised to undertake Certificate III and Certificate IV courses in Commercial Cookery.  On 24 October 2014, the Department sent a Notice of Intention to Consider Cancellation (“NOICC”) to the applicant by email, which advised him that, according to the computer records, he was no longer enrolled in the Bachelor’s degree and nor enrolled in any course of study specified by the relevant instrument under the Migration Regulations 1994 (see reg.1.40A).

5. In November 2014, the applicant’s migration agent responded providing the Certificates of Enrolment for the Certificate IV and Certificate III courses and a further enrolment certificate at the Holmes Institute for a Bachelor of Business course that was to start on 5 November 2014. 

6. In January 2017, a delegate of the Minister cancelled the applicant’s visa on the basis that he had not complied with the condition of the visa.  The applicant appointed a new migration agent thereafter who provided submissions and supporting documents to the Tribunal.

7. The applicant appeared before the Tribunal and gave evidence, however, the Tribunal ultimately concluded that it would affirm the decision of the delegate.  The Tribunal was satisfied that the grounds for cancellation of the visa existed, noting:

   13.  The evidence before the Tribunal shows that from July 2013 until November 2014, the applicant was no longer enrolled in a bachelor’s degree or a master’s degree and he was not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under r.1.40A.  The evidence before the Tribunal shows that in July 2013 the applicant ceased to be enrolled in a bachelor’s degree or master’s degree by coursework or a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A and that she was not enrolled until November 2014.  At the hearing and in written submissions, the applicant acknowledged he had been in breach.

8. The Tribunal then went on to consider whether or not to exercise the discretion as to whether or not to cancel the visa.  The Tribunal recounted the applicant’s circumstances at some length at paras.16 to 25 of the decision, looking at his study history, his family background and his circumstances, career goals and plans.  The Tribunal ultimately determined, having regard to all of his circumstances, that it was appropriate to cancel the visa.

9. The applicant’s grounds for judicial review are as follows:

   1.  I was granted TU-573 student visa for the purposes of undertake ELICOS, Diploma Computing and Bachelors of Information Technology according my situation and my prospect of Future Career.

   2. I have found the course very Hard and Sought other admission in other field as it is explained in Annexure A. 

   3.  There is a Prejudice in the Delegate and Tribunal Decision explained in Annexure A.

   4.  I do have other family and medical matters going on where I could not handle these matters on my own, where these matters are to be considered by Justice as exceptional circumstances beyond my control.

   5.  There is Judicial Error in exercising the S.116 in regarding S.53 Ministerial Direction is explained in Annexure A.

   6  MRT decision has jurisdiction error as they did not even looking in to my submissions at the hearing.

   7. Justice of FCCA has to accept the judicial review application because I do have new argument which is to be seen by Justice and Minister as well.

   8.  I have given explanation in my affidavit how my situation took me to this situation.

   9. And also Decision records of Immigration and Tribunal have been submitted with affidavit. 

   10.  Further written submission and oral submission will be submitted in later stage time frame after the orders made.

   11.  My outcry and explanation is come from real life of overseas students where overseas students facing with S.53 Ministerial Direction, and also this Direction creating the impbalnce in overseas students and leaving the many victims in Australia.

   12.  I hope Federal circuit court has got Jurisdiction in this matter to re-review the Migration tribunal decision where the matter is not exposed in the FCCA deicison previously.

10. Whilst they are lengthy grounds, in substance the applicant makes a complaint that he did not fully understand his visa conditions and that he had taken advice from a migration agent.  Neither of these factors is a basis for judicial review of the Tribunal’s decision. 

11. There is no dispute on the material that the applicant had ceased his enrolment in the courses that he had enrolled in to obtain the visa, nor is there any dispute that the courses that he enrolled in thereafter, at least until such time as he enrolled in the Bachelor of Business course at the Holmes Institute, were not courses that fall within the definitions for courses of the type for which he was granted the visa.  As a result, the discretion to cancel the visa arose under the Act.  I see no basis for judicial review of the finding that the discretion arose for the visa to be cancelled. 

12. I turn, then, to consider whether the applicant has established a ground for judicial review with respect to the cancellation consideration by the Tribunal.  The Tribunal in this case appears to have considered the breadth of the applicant’s circumstances, looking not only at his educational history, but his family circumstances, his circumstances in Australia, and his conduct with respect to the Department and any potential hardship that he may suffer.  To this extent, the considerations the Tribunal has undertaken are analogous to the matters set out in Direction 53 of the Ministerial Directions. 

13. The applicant does not identify any facts or circumstances that were significant or relevant and not taken into account by the Tribunal.  In the circumstances, I am not persuaded that the applicant has established a ground for judicial review of the Tribunal.  Rather, it seems that the applicant wishes to have a merits review undertaken, or, in substance, a general discretion exercised to grant him a visa.

14. It is open to him to apply to the Minister for a general discretion to be exercised if that is appropriate, however, that is entirely a matter for the Minister. 

15. In the circumstances, I therefore dismiss the applicant’s application.

    [Further argument ensued]

16. As the applicant has been unsuccessful, costs ordinarily follow the event.  In this matter, the Minister seeks costs in the sum of $5,800, being less than the scale fee.  It appears to me to be a reasonable sum in the circumstances.  I therefore order that the applicant pay the Minister’s costs fixed at $5800.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  14 August 2017