Mohammed v Minister for Immigration

[2017] FCCA 903

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 903

Catchwords:
MIGRATION – Administrative Appeals Tribunal – student (temporary) visa – Tribunal finding applicant not a genuine temporary entrant for purposes of study – whether any jurisdictional error.

Legislation:
Migration Act 1958, s.499
Migration Regulations 1994 Sch.2, cl.572.223(1)(a)
Direction No. 53

Applicant: AMJAD ALI MOHAMMED

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1327 of 2016

Judgment of: Judge Riley

Hearing date: 28 April 2017

Date of last submission: 28 April 2017

Delivered at: Melbourne

Delivered on: 28 April 2017

REPRESENTATION

Counsel for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Elizabeth Tan

Solicitors for the first respondent: Clayton Utz Lawyers

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Clayton Utz Lawyers

ORDERS

1. The application filed on 23 June 2016 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1327 of 2016

AMJAD ALI MOHAMMED

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT
(revised from the transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”). The applicant came to Australia on a student visa in 2008. He applied onshore for another student visa on 1 September 2015. That application was refused by a delegate of the Minister for Immigration and Border Protection. The applicant sought review by the Tribunal. The Tribunal affirmed the delegate’s decision. Both the delegate and the Tribunal considered that the applicant did not meet the criterion in cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (“the Regulations”), which required that the applicant to be a genuine temporary entrant to Australia for the purposes of study.

2. The delegate noted that the applicant had been in Australia for more than seven and a half years. During that time, he had studied hairdressing, management and marketing, and he was then proposing to study hospitality.  If granted, the visa would have enabled the applicant’s stay in Australia to extend for over nine years.  The delegate also noted that the applicant had studied exclusively at the vocational education and training level and was proposing to undertake a different course, at the same level.

3. The Tribunal noted that cl.572.223(1)(a) of Schedule 2 to the Regulations provided that one of the criteria for the grant of a student visa was:

   The Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   i)the applicant’s circumstances;  and

   ii)the applicant’s immigration history;  and

   iii)if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant;  and

   iv)any other relevant matter.

4. The Tribunal also noted that it was required to have regard to Direction No. 53, Assessing the genuine temporary entrant criterion for Student visa applications, which was made under s.499 of the Migration Act 1958.  The Tribunal accurately summarised the import of that direction. 

5. The Tribunal considered that the applicant studying hospitality, as he proposed, would add little to his education, which to that point had included hairdressing, management and marketing.  The Tribunal also noted that the applicant had enrolled repeatedly in low-level, inexpensive and short-term courses while in Australia, and that he had not progressed above the vocational education level despite having been in Australia for many years. 

6. The Tribunal considered the applicant’s immigration history and noted that he had arrived in Australia on 25 May 2008 and, if he were granted the visa to undertake his proposed study, he would remain in Australia until late 2016 or early 2017.  The Tribunal considered that this immigration history was indicative of an intention to maintain residency in Australia, rather than to be a genuine student. 

7. The Tribunal also noted the applicant’s circumstances in India.  The Tribunal noted that the applicant was not married and both of his parents were deceased.  On the other hand, the Tribunal noted that the applicant had a number of siblings and several houses in India and noted his claim that he wanted to get married and stay in India.  However, overall, the Tribunal considered that the applicant’s circumstances provided limited incentive for him to return to India. 

8. The Tribunal also noted that the applicant had changed his stated intentions about what he would do upon his return to India.  The applicant told the delegate that he had made substantial arrangements to open a restaurant in India with his brother.  The applicant, however, told the Tribunal that he was planning to open a hairdressing salon.  The Tribunal considered that there was no reasonable explanation for the change in the applicant’s plans.  The Tribunal considered that the applicant was not fully committed to his proposed business ventures upon return to India. 

9. Considering the applicant’s circumstances as a whole, the Tribunal concluded that the applicant did not genuinely intend to stay in Australia temporarily for the purposes of study.

10. The applicant appeared in court today without the benefit of legal assistance.  His application to this court also appears to have been prepared without the benefit of legal assistance. 

11. The grounds set out in the application begin with a summary of the background to the matter and end with submissions.  Paragraphs 5 to 10 of the application contain what could be described as grounds. The applicant then said in paragraphs 5 and 6 of his application that he should be allowed to utilise the fee that he had paid for his Advanced Diploma of Marketing course. However, that was a course which the applicant discontinued of his own volition.  The Tribunal’s decision did not have any impact on that discontinuance. 

12. The applicant in paragraph 7 of his application queried where the requirement to be a genuine, temporary entrant had come from. Clearly, it came from cl.572.223(1)(a) of Schedule 2 to the Regulations.

13. The applicant then said in paragraphs 8, 9 and 10 his application that:

    8.Hearing was conducted in phone that is ok, I am talking 10 sentences of explanation and my translator was converting my explanation in to one sentence. Does translator translate exactly what exactly I am saying or he explains in one word exactly what all my sentences mean?

    9.I will question the Tribunal Integrity and as well as Translator role in hearing

    10.Also the way conducting hearing also is not good. I did not feel comfortable in giving evidence in phone. (errors in original)

14. However, there is nothing before the court to indicate that the interpreter did not interpret adequately.  The applicant’s affidavit in support of his application does not mention the issue of interpretation.  There is no indication in the material before the court that the applicant raised the issue of interpretation during the hearing before the Tribunal. The applicant has not pointed today to anything that he considers was not adequately interpreted.  In all the circumstances, it seems to me that the complaint about interpretation is without substance.

15. In relation to the hearing being conducted by telephone, the Tribunal gave the applicant adequate notice that it would be sitting in Sydney.  The applicant was not prevented from appearing in person in Sydney.  Neither the applicant nor his representative requested to appear in person.  There is no evidence that the applicant or his representative objected to the hearing being conducted by telephone.  The applicant and his representative both attended the hearing via telephone.  The Tribunal has not made its decision in any way based on how the applicant presented during the hearing.  There seems to be no basis upon which the Tribunal hearing the matter by telephone could have given rise to a jurisdictional error.

16. Paragraph 9 of the application raised a question about the Tribunal’s integrity.  This may be a complaint about actual or apprehended bias.  However, the applicant has not provided any material or submissions to sustain any such complaint.  The material that is before the court indicates that the Tribunal dealt with the matter without bringing a closed mind to the application and without doing or saying anything that might have given rise to a reasonable apprehension of bias.

17. The applicant, in oral submissions to the court, raised issues going to the merits of the matter.  The applicant claimed that the Tribunal had not done the review properly, but did not explain what was inadequate in relation to the Tribunal’s handling of the matter.  This appears to be a dispute with the Tribunal’s decision on the merits.

18. The Tribunal has correctly applied the law, has given the applicant procedural fairness, has taken into account relevant considerations, has not taken into account irrelevant considerations and asked the correct questions.  I am unable to discern any jurisdictional error in the Tribunal’s decision or decision-making process.  In the circumstances, the application must be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     4 May 2017