Mohammed v Minister for Immigration - [2016] FCCA 3133

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAMMED v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3133

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.359AA, 360, 499

Cases cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Ghimire v Minister for Immigration [2014] FCA 899
Michael Wilson & Partners Ltd v Nicholls (2001) 244 CLR 427
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
Minister for Immigration v SZNPG (2010) 115 ALD 303
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
MZZBT vMinister for Immigration [2013] FCCA 462
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Webb v R (1994) 181 CLR 41

Applicant:

ABDUL AMEEN UDDIN MOHAMMED

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2067 of 2016

Judgment of:

Judge Driver

Hearing date:

5 December 2016

Delivered at:

Sydney

Delivered on:

5 December 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms S Sangha of Mills Oakley

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2067 of 2016

ABDUL AMEEN UDDIN MOHAMMED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The Australian education export industry has encountered some difficulties in the past decade, particularly in the vocational education sector. There have, regrettably, been many examples of education agents directing would-be students to inappropriate courses. At worst, at the lower end, some institutions have gone through a pretence of providing education to visa holders who make a pretence of studying. The present case, in my opinion, is an example of some of these undesirable circumstances. The background facts relating to the matter are set out in the Minister’s outline of submissions filed on 28 November 2016.
The applicant, Mr Mohammed, is a citizen of India who arrived in Australia as the holder of a student visa on 19 July 2008[1]. On 15 June 2015, Mr Mohammed applied for a further student visa on the basis of his enrolment in a Certificate IV, Diploma and Advanced Diploma in Marketing at the Australis Institute of Technology and Education[2].
[1] Court Book (CB) 114
[2] CB 1-15, 114
On 17 June 2015, the Minister’s Department wrote to Mr Mohammed to request evidence in support of the genuine temporary entry criterion and invited him to comment on adverse information regarding his enrolment and immigration…

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.

Keep reading for free

Create a free CaseChat account to read Mohammed v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FCCA 3133
Decision Date: 5 December 2016

CaseChat Overview and Summary

In *Mohammed v Minister for Immigration*, Driver J of the Federal Court of Australia considered an application for judicial review concerning the Minister's decision to refuse to grant the applicant a Protection visa. The applicant, who had arrived in Australia without a visa, claimed to fear persecution in his country of origin due to his ethnicity and political opinions. The Minister had refused the visa on the grounds that the applicant did not meet the criteria for a Protection visa, specifically that he was not a person to whom Australia had protection obligations under the *Migration Act 1958* (Cth).

The central legal issue before the Court was whether the Minister's decision to refuse the Protection visa was affected by jurisdictional error. This involved determining whether the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's claims for protection, thereby vitiating the decision-making process. The applicant argued that the delegate had failed to properly assess the risk of harm he would face upon return to his country of origin, particularly in relation to his ethnicity and political beliefs.

Driver J found that the delegate had failed to adequately consider the applicant's evidence regarding the specific risks he faced due to his ethnicity and political opinions. The delegate's assessment was found to be superficial and did not engage with the detailed information provided by the applicant about the prevailing conditions and potential persecution in his home country. Consequently, the Court concluded that the delegate had made a jurisdictional error by failing to undertake a proper assessment of the applicant's claims, which was a mandatory consideration for the grant of a Protection visa.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders