Mohammed v Minister for Immigration and Border Protection
[2017] FCA 986
•21 August 2017
FEDERAL COURT OF AUSTRALIA
Mohammed v Minister for Immigration and Border Protection [2017] FCA 986
Appeal from: Mohammed v Minister for Immigration & Anor [2017] FCCA 903 File number(s): VID 462 of 2017 Judge(s): DAVIES J Date of judgment: 21 August 2017 Catchwords: MIGRATION – application for review of refusal of visa by Minister’s delegate – application for review of refusal of visa by Administrative Appeals Tribunal – finding that the visa applicant not a genuine temporary entrant for the purpose of study – whether jurisdictional error – appeal of decision of Federal Circuit Court of Australia Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Date of hearing: 21 August 2017
Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 16 Counsel for the Appellant: The Appellant appeared in person assisted by an interpreter Solicitor for the First Respondent: Ms E Tan of Clayton Utz ORDERS
VID 462 of 2017 BETWEEN: AMJAD ALI MOHAMMED
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
21 AUGUST 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the First Respondent’s costs of the appeal, including any reserved costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DAVIES J:
The appellant has appealed from a decision of the Federal Circuit Court of Australia (“FCC”) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal affirmed a decision of the delegate of the first respondent not to grant the appellant a Student (Class TU) (Subclass 572) visa.
The criteria for the grant of such a visa are contained in clauses 572.222 to 572.234 of sub‑class 572 in schedule 2 of the Migration Regulations 1994 (Cth). Relevantly, s 572.223(1)(a) provides as follows:
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) 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; and
Ministerial Direction No. 53, headed “Assessing the genuine temporary entrant criterion for student visa applications”, sets out the factors that must be taken into account when assessing the genuine temporary entrant criterion for these types of visas.
The appellant is a citizen of India who arrived in Australia in 2008 as the holder of a 572 visa. Between 2008 and 2015 the appellant undertook a number of different courses at the VET (Vocational Education and Training) level. In September 2015 the appellant applied for another 572 visa on the basis of his enrolment in a Certificate IV in Hospitality and Diploma of Hospitality. In October 2015, a delegate of the Minister refused to grant the visa on the basis that the appellant did not meet the requirements of clause 572.223(1)(a) of Schedule 2 of the Migration Regulations. The appellant applied to the Tribunal for merits review of the delegate’s decision. The Tribunal was not satisfied that the appellant intends genuinely to stay in Australia temporarily, and affirmed the decision of the delegate not to grant the appellant a Student (Temporary) Class TU) visa. The Tribunal reasoned as follows (from paragraphs [20] to [26]):
After considering the applicant’s circumstances as a whole, the Tribunal finds it cannot make a decision in the applicant’s favour. That is, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criteria. The reasons for this are listed below.
The Tribunal relied on the potential value, or lack thereof, of the course to the applicant’s future. That is, during the hearing the applicant gave evidence that he wanted to open a hairdressing salon upon return to India, but he is currently enrolled in an Advanced Diploma of Marketing. Whilst the Tribunal can see there may be some overlap between opening a salon and completing a marketing course, the Tribunal finds this course would be of limited value when taken in the context of the applicant’s previous study. That is, the applicant has studied Hairdressing Salon Management, Management, a Diploma in Marketing, and Hospitality. The Tribunal finds further study at the proposed area would add little to the applicant’s education.
In addition the Tribunal notes that the applicant has repeatedly enrolled in relatively low level, inexpensive and short-term courses whilst in Australia. In addition he has failed to progress above the 572 study level (Vocational Education) despite his extensive time as a student in Australia.
The Tribunal also considered the applicant’s immigration history. That is, the applicant initially arrived in Australia on 25 May 2008 as the holder of a 572 visa, and his proposed studies would mean he would remain in Australia until at least late 2016 if not early 2017. The Tribunal finds the length of time that the applicant has stayed in Australia, and the lack of progress he has made in his education levels, such as moving to tertiary education, indicates that the applicant is using the Student visa system to maintain residency, rather than as a genuine student.
The Tribunal also considered the applicant’s circumstances in his home country. The applicant gave evidence that he is not married and both of his parents are deceased, and this indicates limited incentive for the applicant to return. However in the applicant’s favour he gave evidence that he has siblings and several houses in India to encourage him to return, and that he wanted to get married and stay in India. However when considering the applicant’s circumstances as a whole, including the amount of time he has already spent in Australia, the Tribunal finds the applicant circumstances overall provide limited incentive for him to return to India.
The Tribunal also took into account the change in the applicant submissions regarding his plans upon returning to India. That is before the delegate the applicant gave evidence that he had made considerable arrangements in order to open a restaurant in India with his brother. However at the Tribunal hearing the applicant said he was now planning on opening a hairdressing salon. The dramatic change in the applicant’s evidence, and the lack of a reasonable excuse as to why, indicates to the Tribunal that the applicant is making submissions without full commitment to his planned ventures upon return to India.
After considering the applicant circumstances as a whole, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criteria, and in addition he appears to be using a student visa system to maintain residency in Australia.
The appellant then applied to the FCC for judicial review of the Tribunal’s decision. The appellant, who represented himself, had 15 grounds in his application for review. The FCC correctly stated that only paragraphs 5–10 could be described as grounds of review, as grounds 1–4 contained background to the application and grounds 11–15 contained submissions. Only Grounds 5–10 raised any possible appealable ground of review. Grounds 5–10 were as follows:
And also there is other factor I have paid lot of fee to the college and left the Advanced Diploma of Marketing in Middle so that I wanted to finish the course before I leaving Australia.
Am I not deserved to do my course which was left in middle? Shouldn’t I utilise my fee which was paid for Advanced Diploma of Marketing which was about to finish but it wasn’t finished due to some reason?
Tribunal member says about genuine entrant, where it is come from? Everywhere I see the decisions in Tribunal members and Immigration refusing the visas on the basis of Non genuine Temporary entrant.
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?
I will question the Tribunal Integrity as well as Translator role in hearing.
Also the way conducting hearing also is not good. I did not feel comfortable in giving evidence in phone.
(errors as in original document)
The FCC found no jurisdictional error. The FCC reasoned as follows (at paragraphs [12] to [16]):
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.
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)
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.
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.
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.
At paragraph [18], the FCC concluded that the Tribunal had correctly applied the law, had given the appellant procedural fairness, and was unable to discern any jurisdictional error in the Tribunal’s decision or decision-making process.
The appellant appealed to this Court. The notice of appeal raised several matters which do not appear to have been agitated before the FCC. To the extent that the grounds of appeal rely on matters not raised before the FCC, there can be no error in the FCC not dealing with an argument that was not raised. More particularly, to a very substantial extent, the grounds of appeal are directed at the reasoning of the Tribunal on the merits and taking issue with the Tribunal’s conclusion that it was not satisfied that the appellant genuinely intends to stay in Australia temporarily.
Neither the FCC nor this Court has jurisdiction to review the merits of the appellant’s application for a visa, and insofar as the grounds seek to agitate the merits of the Tribunal’s decision, the grounds do not raise any appealable error.
There are three claims made in the notice of appeal though which could possibly be considered to raise appealable grounds.
In paragraph [5] of its decision, the FCC referred to paragraph [22] of the Tribunal’s decision, in which the Tribunal had noted that the appellant had repeatedly enrolled in relatively low-level, inexpensive and short-term courses while in Australia and, in addition, he failed to progress above the 572 vocational education level study, despite his extensive time as a student in Australia. The allegation in the notice of appeal was that “this consideration totally against s 53 and s.69 under minister guidelines of Genuine Temporary Entrant”. The appellant was unable to explain to the Court his reliance on section 53 and section 69, and agreed that the reference to section 53 was probably a reference to Ministerial Direction No. 53. Ministerial Direction No. 53 required the Tribunal to have regard to a number of factors in considering whether it was satisfied that the appellant does genuinely intend to stay in Australia temporarily. Those factors included the value of the course to the appellant’s future. It was, accordingly, relevant for the Tribunal to take into account the nature and extent of the courses undertaken by the appellant in Australia since 2008 in determining whether it was satisfied that he genuinely intends to stay in Australia temporarily. The relevance of s 69 of the Migration Act 1958 (Cth) is not apparent at all.
Another allegation in the notice of appeal relates to paragraph 16 of the FCC decision. It is asserted that:
According to the 16th paragraph of FCCA decision made by Judge riley “there is no submission from Applicant in regarding MRT” but applicant has submitted the evidence and also every document has been submitted to Tribunal was material to court as well so I request the FCA judge to review the 16th Paragraph as well.
(errors as in original document)
This appears to be based on a misreading or a misunderstanding of paragraph 16 of the FCC decision. Paragraph 16 dealt with paragraph 9 of the appellant’s application for review which was in terms:
I will question the Tribunal Integrity as well as Translator role in hearing.
(errors as in original document)
The FCC considered that paragraph 9 may be a complaint about actual or apprehended bias but stated that the appellant had not provided any materials or submission to sustain a complaint of actual or apprehended bias. No error is shown.
Another allegation made in the notice of appeal is that the Tribunal should have found the appellant “eligible to give oral evidence instead of submitting the physical evidence”. The appellant was unable to explain what was meant by that allegation, but, in any event, it is apparent from the Tribunal’s decision that it did not turn on the absence of documentary evidence supporting the appellant’s claims. The Tribunal considered the claims made by the appellant but ultimately the appellant failed because the Tribunal concluded that the appellant appeared to be using the student visa system to maintain residency in Australia and after considering the appellant’s circumstances as a whole, was not satisfied that the appellant genuinely intended to stay in Australia temporarily.
The notice of appeal also seeks a reopening of the matter. It is asserted that a new argument has come to light and also asserted that false and misleading evidence was provided below, and there was manifest error. The new argument was not articulated, and, on questioning of the appellant, the basis of this allegation was that the appellant is not satisfied with the decision of the FCC.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate:
Dated: 25 August 2017
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