Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1421
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mohammed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1421
File number(s): SYG 2260 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 19 December 2024 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal - whether applicant satisfied clause 500.212 – whether Tribunal made typographical errors in its decision – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth)
Migrations Regulations 1994 Sch 2 cl 500.212
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
CUV18 v Minister for Home Affairs [2018] FCA 2009
Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of hearing: 3 December 2024 Place: Parramatta Applicants: First Applicant in person Counsel for the Respondents: Mr Tim Reilly Solicitor for the Respondents: Ms Warren Knight of Australian Government Solicitor ORDERS
SYG 2260 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAMEER MOHAMMED
First Applicant
NAUSHEEN MOHAMMED
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicants pay the first respondent’s costs fixed in the sum of $5,400.
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 ZIPSER
INTRODUCTION
On 29 September 2020, the applicants filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 26 August 2020. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
On 13 March 2018, the applicants, citizens of India, applied for Student (Temporary) (Class TU) visas. The first applicant (Applicant) was the primary applicant. The second applicant is the wife of the first applicant.
On 6 April 2018, a delegate of the first respondent refused to grant the visas on the basis that the delegate was not satisfied that the Applicant intended genuinely to stay temporarily in Australia and so did not satisfy clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2).
On 26 April 2018, the applicants applied to the Tribunal for review of the delegate’s decision.
By letter dated 30 October 2019, the Tribunal invited the applicants to provide further information in support of their application, including to satisfy the Tribunal that the Applicant intended genuinely to stay temporarily in Australia.
On 13 November 2019, the applicants, through their representative, provided a response to the invitation.
By letter dated 3 January 2020, the Tribunal invited the applicants to attend a hearing on 24 January 2020. At the request of the applicants’ representatives, the hearing was postponed to 16 March 2020.
On 16 March 2020, the applicants appeared at a hearing before the Tribunal, assisted by their representative.
On 26 August 2020, the Tribunal made a decision affirming the delegate’s decision to refuse to grant the student visas.
TRIBUNAL’S DECISION
Clause 500.212(a) of Schedule 2 provided:
The applicant is a genuine applicant for entry and stay as a student because:
(a) 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
…
The Tribunal considered whether the Applicant satisfied cl 500.212(a) having regard to Direction No 69, “Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications” (Direction 69).
The Tribunal recorded the Applicant’s study history as follows:
(a)In September 2014, the Applicant arrived in Australia on a student visa to study a Master of Information Systems (MIS) at the University of Southern Queensland (USQ).
(b)In October 2016 and August 2017, the Applicant was granted further student visas to complete the MIS.
(c)In August 2017, the Applicant’s Confirmation of Enrolment was cancelled by USQ due to unsatisfactory course progression, and he was excluded by USQ for 12 months.
(d)In July 2018, the Applicant re-enrolled in the MIS. However, in March 2019 he was again excluded from USQ due to unsatisfactory course progression.
(e)In August 2019, the Applicant enrolled in a Diploma of Leadership and Management (DLM) at the Institute of Business and Management Australia. The Applicant told the Tribunal that his primary focus was to complete the MIS and, once he could re-enrol in the MIS, he would discontinue the DLM to complete the MIS.
(f)By the date of the hearing in the Tribunal, the Applicant had completed all six subjects he had studied in the DLM.
The Applicant gave reasons for his exclusion from the MIS in March 2019, including that his wife was pregnant, the baby was born prematurely, and his wife was unwell after the pregnancy.
While the Tribunal was sympathetic to the Applicant’s circumstances, in considering the factors in Direction 69, it made findings that he would not have a significant incentive to return to India at the end of the student visa the subject of his visa application, he would have a significant incentive to stay in Australia at the end of the student visa, he presently had a strong incentive to remain in Australia rather than return home, and the primary objective of the student visa application was to remain in Australia permanently.
On the basis of the above, the Tribunal was satisfied that the Applicant intended to remain in Australia permanently, and so was not satisfied that the Applicant intended genuinely to remain in Australia temporarily, and therefore did not meet cl 500.212(a).
PROCEEDINGS IN THIS COURT
Application and steps up to 2 December 2024
On 29 September 2020, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision (Application). The Application included two grounds as follows (reproduced as written):
1.The Second Respondent made jurisdictional error by failing to carry out its jurisdictional task as required by Divisions 3, 4 and 5 of Part 5 of the Migration Act 1958 and in particular by the requirements of s348 of the Migration Act 1958.
Particulars
(a) The applicant is a citizen of India. At [20] the Second Respondent took into consideration irrelevant and wrong facts that the Applicant returned to Pakistan to get married in May 2016.
(a) At [24], the Second Respondent found that the Applicant had 3 subjects to study to complete the Master's course but the letter from USQ prevented him from reapplying as he had been excluded twice and the prospect of being entitled to apply to complete the Master's course appears remote.
(b) At [25], the Applicant stated that between July 2018 and March 2019 because he could not concentrate. His wife was pregnant and alone, and the baby came prematurely on 6 November 2018, more than one month early. His wife was very sick after the pregnancy and he had to look after the baby. He was extremely stressed, and nervous, as this was his first-born child and he and his wife being in Australia alone without the support of family. At [28] the Second Respondent accepted that the applicant's claims but relied on to affirm the decision based on his unsatisfactory academic performance.
(a) At [27], the Applicant gave evidence that his primary focus is to complete the Master's course as he believes he can use those qualifications in improving his father's business. He gave evidence that he would discontinue the Diploma of Leadership and Management course to complete the Master's course.
2.The Second Respondent made jurisdictional error by making a decision which was irrational, unreasonable or capricious or devoid of any intellectual process.
Particulars
(a) At [43], the Second Respondent accepted that the Applicant's conduct was consistent with him wanting to return home.
(b) At [44], the Second Respondent gave no credit to Applicant's evidence by considering that the Applicant does not have any assets in his own name in India.
(c) At [47], the Second Respondent accepted that the Applicant has a good position in India that would not provide him a significant incentive not to return home.
(d) At [48], the Second Respondent gave no credit to the Applicant's strong personal ties in India.
The Application was filed, and presumably prepared, by a lawyer on behalf of the applicants.
On 22 October 2020, a registrar made procedural orders, including that, upon a hearing date being fixed, the applicants file and serve a written submission 28 days before the hearing.
Following a period of inactivity, on 16 October 2024 the parties were notified that the matter was listed for hearing on 3 December 2024. Shortly afterwards, the applicants’ solicitor on the record filed a notice of withdrawal of lawyer.
The applicants did not file a written submission before the hearing.
Hearing on 3 December 2024
At the hearing on 3 December 2024, the Applicant appeared before the Court unrepresented.
The Applicant did not request an interpreter for the hearing. He spoke competent English during the hearing and appeared to understand matters discussed at the hearing.
At the commencement of the hearing, the Applicant stated that he did not have a copy of the Court Book which was served by the first respondent on the applicants’ former lawyer in about October 2020.
The Applicant was provided with a copy of the Tribunal’s decision dated 26 August 2020, and his application filed on 29 September 2020. I explained to the Applicant that the Court may only quash the Tribunal’s decision if there is a jurisdictional error, which is like a significant error or mistake, in the Tribunal’s decision. I explained to the Applicant the main categories of jurisdictional error. I then adjourned the hearing for 10 minutes to give the Applicant an opportunity to consider the submissions he wanted to make to the Court. Following the adjournment, the Applicant made oral submissions which are addressed in paragraphs 39 and 40 below.
At the hearing on 3 December 2024, Tim Reilly of counsel appeared for the first respondent. He spoke briefly in reply to the Applicant’s submissions.
CONSIDERATION
Ground 1 of Application
Particular (a) in ground 1 of the Application refers to an error in the Tribunal’s decision at [20]. The Applicant’s evidence to the Tribunal was that in May 2016 he returned to his home country of India to get married. But the Tribunal stated in paragraph 20 that in May 2016 “the Applicant returned to Pakistan to get married”. A question is whether the reference to Pakistan is a typographical error, or alternatively whether the Tribunal misunderstood an aspect of the Applicant’s history. Whether or not the reference to “Pakistan” is a typographical error is a question of fact which requires consideration of the Tribunal’s decision as a whole: see CUV18 v Minister for Home Affairs [2018] FCA 2009 at [22]-[38]. It is clear from the remaining paragraphs of the Tribunal’s decision (for example at [14], [18] and [35]) that the Tribunal was aware that the Applicant was an Indian national. I am satisfied that the reference to “Pakistan” is a typographical error. A mere typographical error is not a jurisdictional error.
The remaining particulars in ground 1 merely record matters stated in the Tribunal’s decision.
The opening sentence of ground 1 complains that the Tribunal failed “to carry out its jurisdictional tasks as required by…s 348 of the Migration Act”. Section 348(1) provides that “the Tribunal must review the decision”. This contention does not identify a jurisdictional error.
The matters in ground 1 do not establish a jurisdictional error in the Tribunal’s decision.
Ground 2 of Application
Particular (a) in ground 2 raises a question as follows. The Tribunal stated at [43]:
The applicant has returned home to India only on 3 occasions during his stay in Australia for a total stay of approximately 8 months out of the nearly 6 years he has stayed in Australia. The Tribunal finds that the applicant's conduct is consistent with him wanting to return home.
The applicants refer to this finding in particular (a). However, a question is whether there is a typographical error in the second sentence in [43] in that the Tribunal intended to record a finding “that the applicant’s conduct is not consistent with him wanting to return home”, but accidentally omitted the word “not”. Again, this is a question of fact which requires consideration of the Tribunal’s decision as a whole. For the following reasons, the Court is satisfied that the Tribunal intended to record a finding “that the applicant’s conduct is not consistent with him wanting to return home”:
(a)The main reason is that the first sentence in [43], in particular the word “only”, suggests that the Tribunal intended to record a finding “that the applicant’s conduct is not consistent with him wanting to return home”.
(b)A second reason is that the Tribunal, in [40] to [49], addressed issues with findings in the last sentence of each paragraph concerning whether the Applicant had, or did “not” have, a “significant incentive” “to return to India”, or “to return home”, or “not to return home”. The word “not” appears in different places in these sentences. Some of these sentences include double negatives. The form of these sentences creates the possibility that the Tribunal accidentally omitted the word “not” from one of these sentences.
Again, a mere typographical error is not a jurisdictional error.
In any event, even if the Tribunal did not make a typographical error and intended to find that “the applicant’s conduct is consistent with him wanting to return home”, the Tribunal took this matter into account in ultimately finding that the Tribunal “is not satisfied that the applicant intends genuinely to stay in Australia”. Again, there is no jurisdictional error.
The meaning of particular (b) in ground 2 is not clear. Particular (b) correctly notes that the Tribunal at [44] recorded the Applicant’s evidence that he had no assets in his name in India. However, the meaning of the assertion that the Tribunal “gave no credit to Applicant’s evidence” is not clear.
Particular (c) misstates the Tribunal’s finding at [47]. Particular (c) does not identify a jurisdictional error in the Tribunal’s reasons at [47].
Particular (d) disagrees with the Tribunal’s finding at [48] that the Applicant’s ties in India “does not provide a significant incentive for him to return home to India”. Disagreement with a finding is not a jurisdictional error.
The matters in ground 2 do not establish a jurisdictional error in the Tribunal’s decision.
Matters raised by Applicant at hearing on 3 December 2024
The Applicant stated at the hearing on 3 December 2024 that a reason the delegate of the first respondent refused to grant the applicants a student visa was because the applicants’ agent did not submit relevant documents to the Department. The Applicant added that he provided this explanation to the Tribunal, but the Tribunal did not consider this explanation. That the Tribunal may not have referred in its reasons for decision to a submission, explanation or item of evidence provided by the Applicant does not mean that the Tribunal failed to consider the matter: see for example Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593. The Tribunal’s detailed reasons for decision suggest that it carefully considered the Applicant’s submissions and evidence.
The Applicant repeated at the hearing his explanation to the Tribunal, recorded in the Tribunal’s decision at [25], as to why he failed a subject in the MIS. The explanation was that his wife was sick during her pregnancy. The Applicant added that his son was in hospital for a long time and continued to be unwell in the period of the hearing before the Tribunal. These matters do not establish jurisdictional error in the Tribunal’s decision.
Court’s consideration of Tribunal’s decision
In circumstances where the applicant was unrepresented at the hearing in this Court, although a lawyer prepared the grounds in the Application, as referred to in Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543 at [23], “I have scrutinised the papers and the Tribunal’s reasons to see whether there was reviewable error” to the extent of “a mistake [which] clearly appears in the Tribunal’s reasons”.
In considering whether the Applicant satisfied cl 500.212(a), the Tribunal was required to have regard to the factors in Direction 69. The Tribunal, after discussing the evidence before it, made findings at [35]-[53] which addressed factors in Direction 69. I cannot identify an obvious mistake in these intermediate findings, or in the Tribunal’s ultimate finding that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily within the meaning of cl 500.212(a) of Schedule 2.
COSTS
At the conclusion of the hearing, the Court invited submissions from the parties on costs. The first respondent sought costs in the amount of $5,400. The Applicant did not oppose this amount. This amount, which is below the scale amount, appears reasonable. The Court will make this order.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 19 December 2024
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