Mohiuddin v Minister for Home Affairs

[2019] FCCA 1299

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHIUDDIN v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1299

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.360, 476, 499

Migration Regulations 1994 (Cth)

Cases cited:

NABE v Minister for Immigration (No.2) (2004) 144 FCR 1; [2004] FCAFC 263

Applicant: MOHAMMED ADIL MOHIUDDIN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2669 of 2018

Judgment of: Judge Driver

Hearing date: 16 May 2019

Delivered at: Sydney

Delivered on: 16 May 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J Lambe of HWL Ebsworth

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, fixed in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2669 of 2018

MOHAMMED ADIL MOHIUDDIN

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant, Mr Mohiuddin, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 August 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Mohiuddin a temporary student visa.

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 9 May 2019. 

3. Mr Mohiuddin, a male citizen of India, arrived in Australia on 12 April 2007, as the holder of a student (subclass 572) visa.[1]  Mr Mohiuddin has since been granted three additional student visas.[2]

   [1] Court Book (CB) 174

   [2] CB 173-174

4. On 29 September 2016, Mr Mohiuddin applied for a further student (Temporary) (class TU) (subclass 500) visa (student visa) and provided Confirmation of Enrolment (COE) number 81508F72 in support of his application.[3]  That COE related to a Bachelor of Commerce degree at Torrens University in which Mr Mohiuddin was enrolled to study between 6 June 2016 and 19 May 2019 (Commerce degree).[4]

   [3] CB 1

   [4] CB 31

5. Mr Mohiuddin claimed that completion of the Commerce degree would help him expand his family’s bakery business in India.[5]  He provided transcripts and evidence of prior study in support of his student visa application.[6]

   [5] CB 46-47

   [6] CB 31-81

6. On 6 December 2016, the delegate refused to grant the student visa on the basis that Mr Mohiuddin did not satisfy clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth), the Genuine Temporary Entrant criterion.[7]  The delegate arrived at this conclusion on the basis that:

   a)Mr Mohiuddin had not successfully completed any units of study since 25 October 2013;

   b)contrary to his claims to be studying in order to grow his family’s bakery business, Mr Mohiuddin claimed in his application that he would seek employment as a teacher after completing his course;[8] and

   c)since arriving in Australia, Mr Mohiuddin had been onshore for 3201 days and offshore for only 257 days.

   [7] CB 98

   [8] See CB 8

7. On 21 December 2016, Mr Mohiuddin applied to the Tribunal for review of the delegate's decision and attached a copy of the delegate's decision.[9]

   [9] CB 103

8. On 30 January 2018, the Tribunal wrote to Mr Mohiuddin by email to Mr Mohiuddin’s representative to:[10]

   a)invite Mr Mohiuddin to attend a hearing of the Tribunal pursuant to s.360 of the Migration Act 1958 (Cth) (Migration Act);

   b)inform Mr Mohiuddin that he should have regard to the reasons the delegate had given for refusing to grant the visa as well as any changes in his circumstances;

   c)note that it would assess whether Mr Mohiuddin was a genuine applicant for entry and stay, with reference to and attaching Direction No. 69 (made under s.499 of the Migration Act) (Direction No. 69); and

   d)request that Mr Mohiuddin provide to the Tribunal, within seven days of the hearing: a copy of his current COE; documents showing that he was currently enrolled in a course, or had an offer of enrolment in a registered course, as required for grant of a student visa; documents showing his past studies in Australia, including copies of all of his attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia; an explanation of any gaps in his enrolment/s and any documentary evidence related to that explanation; and a written statement addressing the issue of whether he was a genuine temporary entrant by reference to Direction No. 69.

   [10] See CB 117

9. On 23 February 2018, Mr Mohiuddin’s representative emailed the Tribunal to provide:[11]

   a)a description of Mr Mohiuddin’s studies in Australia since his arrival;

   b)COE number 979E429, which related to an Advanced Diploma of Leadership and Management at the Austech Business Institute, in which Mr Mohiuddin was enrolled from 21 February 2018 to 8 May 2018;[12]

   c)an undated letter regarding the gap in Mr Mohiuddin’s studies and claiming that Mr Mohiuddin’s father had a brain stroke in May 2015 which caused Mr Mohiuddin stress and difficulty in passing his subjects;[13] and

   d)various other supporting documents.

   [11] See CB 134

   [12] CB 137

   [13] CB 167

10. On 23 February 2018, Mr Mohiuddin appeared before the Tribunal to give evidence and present arguments.  Mr Mohiuddin’s representative also attended the hearing.[14]

    [14] CB 169

11. On 22 August 2018, the Tribunal notified Mr Mohiuddin of its decision made on 21 August 2018.[15]

    [15] CB 183

Tribunal decision

1. After summarising Mr Mohiuddin’s claims and evidence,[16] the Tribunal concluded that Mr Mohiuddin did not meet the genuine temporary entrant criterion.  The Tribunal’s conclusion in that regard was based on findings (made by reference to Direction No. 69) that:

   a)Mr Mohiuddin’s ongoing familial and employment ties to his country did not appear to be a strong incentive for him to return, given his continual enrolment in lower level, vocational courses and lack of a clear academic pathway;[17]

   b)Mr Mohiuddin’s regular and ongoing work history in Australia provided an incentive for him to remain in Australia;[18]

   c)the Tribunal did not accept that Mr Mohiuddin needed to study for more than ten years to manage and develop an existing family business, finding that he was “clearly using the student visa program to maintain residence”;[19]

   d)study was not Mr Mohiuddin’s main focus in Australia as his likely motivation had been employment, “which would account for his ongoing enrolment in related, overlapping courses and failure to complete a Bachelor degree” that he had enrolled in;[20] and

   e)the Tribunal did not accept that Mr Mohiuddin was committed to his studies as claimed, or that his father’s illness was the reason for his failure to study or make academic progress, given his failure to study from April 2015 to June 2016 following his father's illness in May 2015.[21] 

   [16] See [4]-[9], CB 186-187

   [17] CB 188 at [16]

   [18] CB 188 at [17]

   [19] CB 188 at [18]

   [20] CB 188 to 189 at [19]

   [21] CB 189 at [20]

The present proceedings

1. These proceedings began with a show cause application filed on 20 September 2018.  The grounds in that application are reproduced at [13] of the Minister’s submissions:

   1.The Member did not consider my circumstances

   2.The Department of Immigration and border protection and AAT did not take in to account of my family situation and my mental status, at that difficult time, which made me not to concentrate on my studies, therefore my future is at hold.

   (errors in original)

2. The application is supported by a short affidavit filed with it, which I received as evidence, save for [2], which I received as a submission.  I also had before me as evidence the court book filed on 21 November 2018.

3. At today’s hearing, Mr Mohiuddin handed up an outline of written submissions.  It is obvious from those submissions, which Mr Mohiuddin augmented orally, that he disagrees with the Tribunal decision and the reasoning that led to that decision. 

4. Mr Mohiuddin refers to the evidence he presented concerning his diligence as a student, the significance of his studies and his continuing links to India.  He also referred to the illness of his father and his intention to return to India after he has completed his current Commerce degree in about two years.  As I pointed out to him, however, his submissions do not rise above a dispute over the merits of the Tribunal decision. 

5. The only legal argument that appears to arise from Mr Mohiuddin’s submissions and the grounds advanced is that it was not open to the Tribunal to draw the adverse conclusions it did from the evidence before it. That argument, however, is not, in my view, a viable one for Mr Mohiuddin. It is plain that the Tribunal considered all of the material and arguments that Mr Mohiuddin presented to it. Nothing was overlooked. The Tribunal met its statutory obligations of review under the Migration Act. It is not arguable that the Tribunal decision was unreasonable in any legal sense and there was plainly evidence available to the Tribunal to support its conclusions.

6. I otherwise agree with the submissions of the Minister on the grounds of review advanced. 

Grounds 1 and 2

1. Insofar as Ground 2 asserts error on the part of the delegate, the delegate’s decision is a primary decision within the meaning of s.476(4) of the Migration Act and this Court does not have jurisdiction to review it.[22]  I have taken Ground 2 to assert error on the part of the Tribunal only.

   [22] Migration Act, s.476(2)(a)

2. Grounds 1 and 2 assert that the Tribunal erred by failing to consider certain matters. It is trite that a failure by the Tribunal to conduct the review in light of the information, evidence and arguments which are relevant to the application may amount to jurisdictional error insofar as the Tribunal has failed to conduct a review as required by the Migration Act.[23]

   [23] See, e.g. NABE v Minister for Immigration (No.2) (2004) 144 FCR 1; [2004] FCAFC 263 at [48]

3. Ground 1 asserts that the Tribunal Member did not consider Mr Mohiuddin’s “circumstances”.  This ground is expressed in such general terms so as to be virtually meaningless.  Nonetheless, the Tribunal conducted the review in light of all the relevant information before it and considering all of the relevant circumstances of Mr Mohiuddin.  So much is made clear by a comparison of the Tribunal’s reasons, particularly at [4]-[11], to the material put before the Tribunal by Mr Mohiuddin.

4. Ground 2 asserts that the Tribunal did not take into account Mr Mohiuddin’s family situation and mental status, which made it difficult for him to concentrate on his studies.  This appears to be a contention that the Tribunal did not take into account Mr Mohiuddin’s explanation for his failure to study between April 2015 and June 2016,[24] namely that Mr Mohiuddin’s father was ill and that he was stressed.  That is not an accurate construction of the Tribunal’s reasons.  The Tribunal considered that matter at [5], [7] and [20] of its reasons.  It found at [20]:

   The Tribunal accepts the applicant’s father was indeed ill during this period, however, the applicant did not return to his home country until November of that year, and claimed the reason was his commitment to his studies. Since the Department noted the applicant’s failure to study from April 2015 to June 2016, the Tribunal does not accept the applicant was committed to his studies as claimed, or that his father’s illness was the reason for his failure to study or make academic progress.

   [24] See COE at CB 178

5. As was noted by the Tribunal, the material provided by Mr Mohiuddin indicated that his father was admitted to hospital in India for ten days from 2 to 12 May 2015 suffering from “acute ischaemic stroke”.[25]  The Tribunal’s conclusion that this did not explain Mr Mohiuddin’s absence from study between April 2015 and June 2016 was plainly open to it.

   [25] See [20] of the Tribunal's reasons; see also CB pp 49-51

6. No jurisdictional error as alleged by Grounds 1 and 2 can be made out.

Conclusion

1. I conclude that Mr Mohiuddin is unable to advance an arguable case of jurisdictional error by the Tribunal. I will, therefore, dismiss the application, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules). I so order.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  Mr Mohiuddin was concerned about his capacity to pay, but as I explained to him, the issue for me is whether the costs have been reasonably and properly incurred.  I am satisfied that they have been.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       21 May 2019