Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 836

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 836  

File number(s):

SYG 3197 of 2018

Judgment of:

JUDGE CAMERON

Date of judgment:

5 September 2023

Catchwords:

MIGRATION – Skilled (Provisional) (Class VC) subclass 485 (Temporary Graduate) visa – Refusal – Review of Administrative Appeals Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason of lack of procedural fairness.

Legislation:

Migration Act 1958 (Cth) s 474

Migration Regulations 1994 (Cth) reg 1.15F, sch 2 cl 485.231

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Division:

General

Number of paragraphs:

20

Date of hearing:

5 September 2023

Place:

Sydney

Counsel for the Applicant:

The applicant appeared in person

Solicitor for the First Respondent:

HWL Ebsworth Lawyers

Solicitor for the Second Respondent:

Submitted appearance save as to costs

ORDERS

SYG 3197 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ABDUL NAYEEM MOHAMMED

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	5 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $5600.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Cameron

1. The applicant, Mr Mohammed, is a citizen of India who arrived in Australia on 30 December 2014. On 5 June 2017 he applied to what is now the Department of Home Affairs (“Department”) for a Temporary Graduate subclass 485 visa. On 27 June 2017 Mr Mohammed’s application was refused by a delegate (“Delegate”) of the first respondent (“Minister”). He then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision but was unsuccessful and has applied to this Court for judicial review of the Tribunal’s decision.

2. In this judicial review proceeding, the Court cannot rehear Mr Mohammed’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

   RELEVANT LEGISLATION

4. At all material times, cl. 485 of sch.2 to the Migration Regulations 1994 (Cth) (“Regulations”) relevantly provided:

   …

   485.231

   (1)The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.

   (2)Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.

   (3) The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.

   …

5. At all material times, reg 1.15F of the Regulations defined “Australian study requirement” as follows:

   (1)A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:

   (a)       that are registered courses; and

   (b)       that were completed in a total of at least 16 calendar months; and

   (c)that were completed as a result of a total of at least 2 academic years study; and

   (d)       for which all instruction was conducted in English; and

   (e)that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

   (2)  In this regulation:

   completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.

   degree has the meaning given in subregulation 2.26AC(6).

   diploma has the meaning given in subregulation 2.26AC(6).

   trade qualification has the meaning given in subregulation 2.26AC(6).

   BACKGROUND FACTS

6. Relevantly, Mr Mohammed included in his visa application the following information and evidence:

   (a)he had enrolled in a Bachelor of Computer Science and Engineering course at Jawaharlal Nehru University in India which he completed in November 2013;

   (b)he had enrolled in a Masters of Technology (Enterprise Systems) course at Federation University in Australia which he completed in November 2016;

   (c)a copy of a statement of academic completion issued by Federation University recording that he completed the academic requirements for his master’s degree on 24 November 2016;

   (d)an open letter from Federation University, dated 24 November 2016, recording that the completion date of his study was 24 November 2016;

   (e)a master’s degree testamur issued by Federation University recording that the qualification was conferred on 7 February 2017; and

   (f)a PTE academic test taker score report, evidencing that he had taken an English language test on 25 May 2017 and achieved scores set out in that report.

7. Mr Mohammed appeared at a Tribunal hearing on 25 October 2018. The Tribunal’s decision recorded that he had asked the Tribunal to consider that he had made an earlier, separate visa application which he had withdrawn because he did not meet the necessary English language requirements.

   The Tribunal’s decision and reasons

   Previous visa application

8. The Tribunal acknowledged Mr Mohammed’s evidence concerning his earlier withdrawn visa application but determined that it was precluded from considering a withdrawn visa application which, in any event, was not the subject of the review.

   Australian Study Requirement

9. The Tribunal found that Mr Mohammed’s master’s degree was the sole qualification he claimed to have completed in Australia and was therefore the qualification upon which he could rely to meet cl.485.231’s Australian study requirements.

10. The Tribunal found that Mr Mohammed’s study for his master’s course satisfied the definition of “Australian study requirement”.

    6 month period

11. The Tribunal found that Mr Mohammed had completed his master’s course on 24 November 2016 and that his visa application was made on 5 June 2017. I note that the applicant has submitted that he lodged his visa application on 31 May 2017 and a date stamp on his visa application, reproduced at page 2 of the Court Book, which was Exhibit A in this proceeding tends to bear that submission out. 

12. The Tribunal determined that Mr Mohammed’s period of study for his master’s course had concluded prior to the 6 months period ending immediately before the visa application was made. The Tribunal was not satisfied that Mr Mohammed’s Australian qualification met the relevant six month timing criterion under cl.485.231(3) and so affirmed the decision to not grant the visa application.

    THE PROCEEDING IN THIS COURT

13. In the application commencing this proceeding the applicant alleged:

    1.I came to Australia on 29/12/2014 to study Master’s in Enterprise systems.

    2.I completed my Master’s on 24/11/2016.

    3.I applied for my 485 Visa on 5/06/2017 which was subsequently refused on 27/06/2017.

    4.I lodged paper application on 29/05/2017 which was sent to the department. However, my visa was refused by Department of Immigration and Border Protection on 27/06/2017 based on the fact that I did not meet the requirements of clause 485.231 in schedule 2 to the Regulations.

    5.After this decision, I appealed to Administrative Appeals Tribunal (AAT) wherein I provided various reasons and evidences to support grant of visa application.

    6.I believe that while making the decision on my application DIBP did not follow a procedural fairness.

    CONSIDERATION  

14. In his submissions to the Court today, Mr Mohammed sought some leniency or flexibility from the Court in the application of the six month visa criterion.  He spoke of incorrect advice he had been given by his migration agent prior to the lodgment of the application. He also said that his visa application had been late because he did not sit his English language test earlier than May.  He told the Court that he had had to travel to India because his mother had been unwell. 

15. As advised to Mr Mohammed at the hearing of this application and as recorded earlier in these reasons, the Court cannot rehear the application for a visa. Nor can it change how the regulations apply to a particular case.  It can only determine whether the Tribunal’s decision is affected by jurisdictional error and make orders according to that determination.  The matters Mr Mohammed raised today did not identify any jurisdictional error on the Tribunal’s part. 

16. It then falls to consider the issues raised by the application to this Court filed on 16 November 2018.  In broad terms, the relevant criterion required the applicant:

    (a)to have met the academic requirements for the award of an Australian degree that met certain criteria that are not material to present considerations; and

    (b)to have done so within the six months period prior to the application for the subclass 485 visa the subject of the review.

17. The evidence makes it clear that Mr Mohammed met the academic requirements for the award of his Australian degree on 24 November 2016. The six month period prescribed by cl.485.231(3) of sch.2 to the Regulations expired at the end of 23 May 2017 but the visa application the subject of this proceeding was not lodged within that 6 month period. In the circumstances, the Tribunal’s hands were tied and it had no option but to reach the decision it reached.

18. Mr Mohammed also alleged a denial of procedural fairness, which seems to be directed at the Delegate, but I will take it to be directed at the Tribunal.  No particulars of the allegation were provided and so it lacks material substance.  However, even if the allegation had had more substance that would be of no account because, on the facts, the Tribunal could not have reached a different decision. For that reason, no practical injustice has been demonstrated in connection with any denial of procedural fairness and remittal would also be futile. 

    CONCLUSION

19. Jurisdictional error on the part of the Tribunal has not been demonstrated. However, even if it had been, in the exercise of discretion based on the evidence before me, I would decline to remit the matter to the Tribunal on the ground that it would be futile to do so. 

20. Consequently, the application will be dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       13 September 2023