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

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. 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)

1. 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. 

2. 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

3. 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 history[3].  On 14 July 2015, Mr Mohammed provided documents in response to the Minister’s Department’s request[4]. 

   [3] CB 20-31

   [4] CB 32-107

The delegate’s decision

1. On 3 August 2015, the Minister’s delegate refused to grant the visa as the delegate was not satisfied that Mr Mohammed was a genuine applicant for entry and stay as a student as required by clause 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations)[5]. The delegate had regard to Mr Mohammed’s lack of academic progress, his study history, potential circumstances in Australia, immigration history and lack of value of the courses to his future, and found that Mr Mohammed was using the student visa program to circumvent permanent migration programs. The delegate was not satisfied that Mr Mohammed was a genuine temporary entrant[6].

   [5] CB 108-119

   [6] CB 118

The Tribunal proceedings

1. On 21 August 2015, Mr Mohammed sought review to the Administrative Appeals Tribunal (Tribunal)[7].  Mr Mohammed provided a copy of the delegate’s decision record with his review application[8].  Mr Mohammed appointed a representative in connection with his review application[9].

   [7] CB 120-121

   [8] CB 121; item 18(a) of the index

   [9] CB 121

2. On 25 February 2016, Mr Mohammed was invited to attend a hearing before the Tribunal scheduled for 13 April 2016 to give evidence and present arguments relating to the issues in his case[10].

   [10] CB 126-130

3. On 3 March 2016, Mr Mohammed requested a postponement of the hearing in order to travel overseas to visit his ill father[11].  By letter dated 9 March 2016, the Tribunal agreed to postpone the hearing to 16 May 2016[12].

   [11] CB 138-139

   [12] CB 146-150

4. On 13 May 2016, Mr Mohammed requested a second postponement of the hearing due to lower back pain[13].  By letter dated 20 May 2016, the Tribunal agreed to postpone the hearing to 22 June 2016[14].

   [13] CB 152-153

   [14] CB 146-150

5. On 20 June 2016, Mr Mohammed requested a third postponement of the hearing due to “severe lower back muscle strain”[15].  By letter dated 23 June 2016, the Tribunal agreed to postpone the hearing to 29 June 2016[16].

   [15] CB 166-167

   [16] CB 172-175

6. On 28 June 2016, Mr Mohammed’s representative wrote to the Tribunal and stated that Mr Mohammed was unable to attend in person due to a “health issue” but indicated “readiness for a telephone hearing” followed by an attendance in person after a few weeks[17].  The Tribunal refused to grant a further postponement of the hearing but confirmed Mr Mohammed was able to attend by telephone[18].

   [17] CB 176-177

   [18] CB 222

7. On 29 June 2016, Mr Mohammed provided submissions and documents in support of his application[19].  Mr Mohammed attended the hearing on 29 June 2016 with a representative and was assisted by an Urdu interpreter[20].

   [19] CB 184-220

   [20] CB 223

8. After the Tribunal hearing on 29 June 2016, Mr Mohammed’s representative provided further submissions[21].  Those submissions also requested further time to provide a new confirmation of enrolment certificate and financial evidence[22].  This request was refused on the same date[23].

   [21] CB 224

   [22] CB 224-225

   [23] CB 226

The Tribunal decision

1. On 30 June 2016, the Tribunal affirmed the delegate’s decision under review on the basis that Mr Mohammed failed to satisfy clause 572.223 of Schedule 2 to the Regulations[24].

   [24] CB 227-239

2. Clause 572.223(1)(a) required the Minister (or the Tribunal) to be satisfied that Mr Mohammed was a genuine temporary entrant. In considering whether Mr Mohammed met the genuine temporary entrant criteria in clause 572.223(1)(a), the Tribunal considered Direction 53, which in turn required it to consider Mr Mohammed against a list of factors[25].

   [25] Section 499(2A) of the Migration Act 1958 (Cth)

3. The factors are not to be used as a checklist but are intended to guide decision makers to weigh up Mr Mohammed’s circumstances as a whole[26].  Those factors were set out in the Tribunal decision[27].

   [26] Ghimire v Minister for Immigration [2014] FCA 899 at [3]

   [27] CB 237 at [38]-[39]

4. The Tribunal observed that Mr Mohammed first arrived in Australia on 8 July 2008 and had spent the majority of his time as the holder of a student visa or an associated bridging visa with short periods of overseas travel.  The Tribunal found his immigration history indicated that he saw Australia as his long term-home and was using the student visa system to maintain residency[28].

   [28] CB 237 at [42]

5. The Tribunal considered Mr Mohammed’s claim to have been too ill to study for at least six months due to his own health problems, his father’s health problems and the anxiety associated with awaiting the outcome of the Tribunal decision.  Further, Mr Mohammed’s enrolment had been cancelled.  The Tribunal found that although it was able to produce a decision, this would not overcome his and his father’s health problems.  The Tribunal had regard to the number of hearing postponements that Mr Mohammed requested together with the fact that Mr Mohammed was not studying and had not been studying for the past six months.  The Tribunal did not accept that his circumstances were conducive to further study[29].

   [29] CB 238 at [43]

6. The Tribunal accepted that Mr Mohammed’s father had a heart condition which impacted Mr Mohammed but did not accept that this was likely to change in the near future considering the length of time that his father had been unwell[30].  The Tribunal accepted that Mr Mohammed’s spouse remained in India and that this may provide an incentive for Mr Mohammed to return to India, but found his evidence was that they had not decided whether she would join him in Australia. Therefore, the Tribunal was unable to make a finding as to whether Mr Mohammed’s wife would join Mr Mohammed and any impact this may have[31].

   [30] CB 238 at [44]

   [31] CB 238 at [44]

7. In determining the value of the course to Mr Mohammed’s future, the Tribunal found that Mr Mohammed studied “fairly extensively” at the vocational level and did not accept that further study at the same level would be of value to him[32].  The Tribunal considered Mr Mohammed’s submission that his “agents” had enrolled him in courses without his knowledge in order to make commissions.  The Tribunal accepted that this may be true, but found that Mr Mohammed had spent a substantial amount of time in Australia, and the “influence of unscrupulous agents” would have lessened as Mr Mohammed’s exposure and experience to the Australian educational system increased. The Tribunal also relied on the fact that Mr Mohammed had not studied for a period of at least six months at the time of hearing and found that Mr Mohammed must accept responsibility[33].

   [32] CB 238 at [45]

   [33] CB 238 at [46]

8. On the basis of these matters, Mr Mohammed’s circumstances, immigration history and other matters it considered relevant, the Tribunal was not satisfied that Mr Mohammed genuinely intended to stay in Australia temporarily. The Tribunal found that he did not meet clause 572.223(1)(a) and affirmed the decision under review[34].  The Tribunal also found that Mr Mohammed did not meet the criteria for the other visa subclasses within Class TU[35].  

   [34] CB 238 at [47]

   [35] CB 238-239 at [48]

The present proceedings

1. These proceedings began with a show cause application filed on 29 July 2016.  Mr Mohammed now relies upon an amended application filed on 15 November 2016.  There are numerous grounds in that application:

   1. The Administrative Appeal[s] Tribunal erred in failing to afford procedural fairness to the Applicant in its questioning of the applicant during the Tribunal hearing.

   2. Particulars: The applicant claims that he was denied procedural fairness and natural justice when the AAT made decision on limited information – materials and mistook the facts.

   3. The AAT ask for new information with regards to the Confirmation of Enrolment.

   4. The applicant claims he was represented by his Representative at this stage and he was totally relied on his advice.

   5. When the applicant filed the application for review of the decision of the Department to the Administrative Tribunal, the Applicant was attending the Courses of Study for nearly six months and after filing application for review on 26 August 2015.

   6. The applicant claims that he was very much confused about the time of study and because of that he gave different answers at the different time.  He corrected his words after some time when he realised that the Tribunal is asking about the current study program and Campus.  He said to the Tribunal his study was hampered by several reason including his own health and father’s health condition in India.  When he lodged the application he was studying but suddenly, he was called by his parents to come to see his father who was suffering from Heart Attack.

   7. When the applicant applied for Bridging Visa B to visit India, applicant submitted to the Department of Immigration, a Doctor’s Certificate of his father’s illness and reason for leaving Australia.  The applicant’s concern about his father’s illness was genuine and reasonable.  It may be noted here that this year (2016) applicant’s father was seriously ill and died of heart decease.  He could not go India to attend the funeral because of Visa Condition.

   8. Similarly, when the Tribunal asked the question about the Confirmation of Enrolment, the applicant was confused and [nervous].  He was not assured whether he is still enrolled at this Education Institution or not.  He wanted to be sure from the Migration Agent whether his name is still there or not.  Because of that once he told the tribunal that he is still continuing the Study.

   9. On 29 June, in a response to the Tribunal (Green Book Page 224), applicant’s Representative wrote it very clearly all about the circumstances in which his enrolment was cancelled by the Education institution during month of April 2016.

   10. For consultation and confirmation about Enrolment the applicant wanted some time from the Tribunal.

   11. As he told earlier that when he came back from India he did not go to Education Institution for six months.  His Education Agent was handling the admissions of Applicant and he was one who always changed the study courses for commission for new admission.  He became victim of the System.

   12. The applicant claims that he had no intention to misled the Tribunal.  The applicant totally relied on the Educational Agent and he never correct information about his enrolment.

   13. The applicant claims that the Tribunal made decision with the closed mind when the Tribunal concluded that the applicant has only completed five courses out of 17 Courses enrolled within 7 Years of living in Australia.  The Tribunal made unreasonable allegation on the applicant that the purpose for extension of Student visa was only stay for long in Australia.

   14. The applicant claims that he paid course fees for all of courses and he fulfilled all of Student Visa conditions.  He never broke the Immigration Rules and has clear criminal records in Australia.  The applicant submitted all the business records of his Family Business in India and claimed that his knowledge is enhanced his business skills because of the Courses he completed in Past years.  He wanted to complete Marketing course and wanted to set up a new business with knowledge he acquired at Australian Institutions.

   15. The applicant claims the Tribunal undermined the Value of Courses the applicant completed during his stay in Australia.  The applicant is young and married with a Highly Educated Girl.  Both husband and wife have a dream to live in India and set up a new business.

   16. The applicant claims he was denied natural justice when his attention was diverted on several irrelevant issues on which has applicant has nothing to do or no link the real issue of student Visa.  The applicant told to the Tribunal that he became victim of System and exploited by the Education Agent to take the Unwanted Course such as Aged Care.  But the Tribunal unreasonably believed that the applicant has deliberately took course to stay long in Australia.

   17. The applicant claims that the AAT did not process that applicant’s application for review in judicial manner and he was completely denied procedural fairness and natural justice.  The AAT failed to hold that the Department made a error in assessment of the application in the beginning it raised several questions about applicant’s medical condition of the applicant and his father.

   The applicant claims that he is a truthful witness and whatever the information supplied by him was correct.  The inconsistencies arose because of [misunderstanding] of the facts.

   [errors in original]

2. Mr Mohammed also relies upon his affidavit filed with his original application.  I received that as a submission. 

3. I have before me as evidence the court book filed on 27 October 2016. 

4. Both the Minister and Mr Mohammed prepared written pre-hearing submissions and made oral submissions at today’s hearing.

5. Mr Mohammed presents himself as a victim of unscrupulous agents whose advice he followed precisely.  He is concerned that, first, the delegate, and then the Tribunal, did not pay proper regard to his circumstances.  In my view, however, that complaint is not substantiated by the available material.

6. Mr Mohammed explained to the Tribunal that his studies had been disrupted, first, by the poor advice of the education agents, and the cancellation of a Certificate of Enrolment while he was overseas in India visiting his sick father and, more recently, by the deteriorating health of his father which necessitated his travel to India. 

7. Those circumstances were taken into account, but the Tribunal was nevertheless unable to conclude that Mr Mohammed is a genuine applicant for temporary entry to Australia as a student.  My own analysis of the Tribunal decision reveals no arguable case of error by the Tribunal in its analysis.  In particular, the Tribunal’s findings were open on the available materials and for the reasons that the Tribunal gave.

8. One aspect of Mr Mohammed’s written submissions should not go unremarked.  In paragraph 6 of those submissions, Mr Mohammed states that his father has recently died and he was unable to attend the funeral due to these Court proceedings.  At no stage did Mr Mohammed seek any adjournment in order to attend his father’s funeral or otherwise to support his family in India.  Had such a request been made, it would have received sympathetic consideration.

9. In paragraph 7 Mr Mohammed states that he could not go to India to attend his father’s funeral because of a condition on his visa.  I queried that with Mr Mohammed in oral argument and put to him that it appeared that he was putting a desire to remain in Australia above a need to attend his father’s funeral and support his family.  He responded that his father had died early in the morning and, in accordance with Muslim custom, his father was buried within 24 hours.  He could not have travelled to India in time to attend the funeral, and there did not, thereafter, seem much point in going.  Accepting those as the facts, then it was not the Court proceedings or the condition on Mr Mohammed’s visa that presented an obstacle.

10. I agree with the Minister’s submissions dealing with the grounds of review advanced by Mr Mohammed.  

11. Grounds 1 and 2 state that the Tribunal failed to afford procedural fairness to Mr Mohammed during its questioning at the hearing because it made a decision on “limited information” and materials and mistook the facts. This is not a proper ground of review.

12. Relevantly, Mr Mohammed attended a Tribunal hearing on 29 June 2016[36] and the Tribunal’s reasons reveal that the Tribunal gave him an opportunity to give evidence and make arguments, and that the Tribunal identified specific concerns with his evidence which were discussed with him[37]. Mr Mohammed has not taken up the opportunity afforded to him to file and serve further affidavit evidence by 21 November 2016 and no transcript of the Tribunal hearing is in evidence. There is no support for the assertion that Mr Mohammed was not afforded a proper opportunity to be heard or that the Tribunal otherwise breached s.360 of the Migration Act 1958 (Cth) (Migration Act). These grounds cannot succeed.

    [36] CB 223

    [37] see for example, CB 235 at [24]

13. Grounds 3 and 8 to 10 appear to take issue with the Tribunal’s finding that Mr Mohammed’s Certificate of Enrolment had been cancelled[38]. The Tribunal decision reveals that it put this information to Mr Mohammed for comment or response pursuant to s.359AA and he responded that his enrolment was valid[39].  He later conceded that his enrolment had been cancelled[40].  Mr Mohammed seeks to explain why he gave inconsistent evidence and states that he was “confused and nervous” and was not “assured” as to whether he was still enrolled. However, the Tribunal accepted his subsequent evidence that he was no longer enrolled and made no adverse findings regarding his inconsistent evidence.  Accordingly, this ground must fail.

    [38] CB 238 at [43]

    [39] at CB 236 at [30]

    [40] CB 224

1. Ground 4 states that Mr Mohammed was represented by his migration agent and “totally relied on his advice”. This is not a proper ground of review and does not identify any jurisdictional error in the Tribunal decision.

2. Grounds 5 and 6 state that Mr Mohammed attended courses for almost six months after filing his application for review, and that he was confused in his evidence about the “time of study” and that his study was “hampered by several reasons including his own health and father’s health condition in India”. Ground 7 states that Mr Mohammed’s concern about his father’s illness was “genuine and reasonable”. The Tribunal expressly considered Mr Mohammed’s submissions that he was unable to study due to his health and his father’s health and found that, having regard to those submissions, his circumstances were not conducive to further study[41]. These findings were open on the available materials and for the reasons that the Tribunal gave.  This is not a proper ground of review and is in essence a request for impermissible merits review[42].

   [41] CB 238 at [43]

   [42] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272

3. Ground 9 contends that Mr Mohammed’s representative wrote to the Tribunal about his circumstances about his enrolment which was cancelled.  Ground 10 states that Mr Mohammed wanted some time from the Tribunal for “consultation and confirmation about enrolment”. This is not a proper ground of review and does not identify any jurisdictional error in the Tribunal decision.

4. Grounds 11-12 and 16 repeat Mr Mohammed’s submissions to the Tribunal that he was enrolled in several courses by agents, without his knowledge, due to commissions that the agents received[43].  This submission was made to the Tribunal in response to the delegate’s concern that Mr Mohammed had enrolled in 17 courses but only completed five whilst in Australia as a student.  Mr Mohammed contends that he became a “victim of the system” and the Tribunal “unreasonably” believed that he “deliberately undertook courses to stay long in Australia”.  The Tribunal expressly considered this submission and accepted that this may but true but found that Mr Mohammed spent a substantial amount of time in Australia and the influence of “unscrupulous agents” would have lessened as Mr Mohammed’s exposure and experience to the Australian education system increased[44].  The Tribunal was ultimately most concerned that Mr Mohammed had not studied for a period at least six months at the time of the hearing and found that he must accept responsibility for those actions, or lack thereof[45].  The Tribunal’s findings were open on the available materials and for the reasons that the Tribunal gave.  This is not a proper ground of review and is in essence a request for impermissible merits review[46].

   [43] CB 238 at [46]

   [44] CB 238 at [46]

   [45] CB 238 at [46]

   [46] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272

5. Ground 13 states that the Tribunal made a decision “with the closed mind” when it concluded that he only completed five courses out of 17 courses in which he had enrolled within seven years of living in Australia. The Tribunal made no such finding.  In setting out a summary of the delegate’s decision dated 3 August 2015, the Tribunal noted that the delegate made that finding, but found that Mr Mohammed in fact completed six courses of study[47].  This ground also contends that the Tribunal made an “unreasonable allegation” that the purpose of his application to extend his student visa was to prolong stay in Australia.  These grounds appear in substance, to take issue with the Tribunal’s finding that Mr Mohammed was using the student visa system to maintain residency[48].  However, that finding was made having regard to Mr Mohammed’s immigration history which indicated that he arrived in Australia on 8 July 2008 and since that time had spent the majority of his time in Australia as the holder of a student or bridging visa and travelled overseas for relatively short periods[49]. Accordingly, the Tribunal’s finding that Mr Mohammed was using the student visa system to maintain residency was open on the available materials and for the reasons that the Tribunal gave. This is not a proper ground of review and is in essence a request for impermissible merits review[50].

   [47] CB 323 at [5]

   [48] CB 237 at [42]

   [49] CB 237 at [42]

   [50] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272

6. To the extent that Mr Mohammed contends bias, this also lacks any evidentiary basis or a proper foundation.  An allegation of bias must be “distinctly made and clearly proved”[51], and it is not permissible to have recourse to the decision-record in order to establish apprehended bias[52].  There is nothing in the available materials to support a complaint that a fair-minded and informed person might reasonably apprehend that the Tribunal might not bring or have bought an impartial mind to bear on the decision[53].  The Tribunal provided comprehensive reasons for not accepting that Mr Mohammed was a genuine student and its findings were open on the materials before and for the reasons it gave.

   [51] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [69]; Minister for Immigration v SZNPG (2010) 115 ALD 303 at [18]

   [52] Michael Wilson & Partners Ltd v Nicholls (2001) 244 CLR 427 at [67]-[68]; MZZBT vMinister for Immigration [2013] FCCA 462 at [45]

   [53] Webb v R (1994) 181 CLR 41 at 70-71; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343-45; and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]

7. Ground 14 states that Mr Mohammed paid his course fees, fulfilled his student visa conditions and did not breach immigration rules.  He states that he wanted to complete his marketing course to set up a new business.  This is not a proper ground of review and is in essence a request for impermissible merits review[54].

   [54] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272

8. Ground 15 states that the Tribunal “undermined” the value of the course and that he is young and married to a “highly educated girl” and that he and his wife intend to set up a new business in India.  Again, this is not a proper ground of review.

9. Ground 17 states that the Tribunal did not review Mr Mohammed’s application in a “judicial” manner and denied him procedural fairness and natural justice.  Mr Mohammed states that the Tribunal raised several questions about his medical condition, maintains that he was a truthful witness and states that inconsistencies arose due to “misunderstandings of the facts”.  This ground is difficult to understand and does not identify any jurisdictional error in the Tribunal decision.  The question for the Tribunal was whether Mr Mohammed genuinely intended to stay in Australia temporarily and there was nothing to indicate that his submissions were not considered or misunderstood by the Tribunal.  Ultimately, the Tribunal found that his current circumstances were not conducive to study[55] was concerned with Mr Mohammed was not enrolled in a current course[56] and had not studied for a period of at least six months at the time of the hearing[57]. In the absence of meaningful particulars, this ground cannot succeed.

   [55] CB 238 at [43]

   [56] CB 238 at [45]

   [57] CB 238 at [46]

10. The affidavit affirmed by Mr Mohammed and filed in support of the judicial review application simply asserts that he was “wrongfully denied a student visa” and that the Tribunal decision “must be revoked” by the Court.  This is a submission and does not identify any legal error in the Tribunal decision.  The affidavit fails to advance Mr Mohammed’s case in any meaningful sense.

11. I conclude that Mr Mohammed is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, accordingly, order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

12. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale.  Mr Mohammed indicated that he may require time to pay, but did not impose a costs order in principle.

13. I will order that 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.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 7 December 2016