Mohiuddin v Minister for Home Affairs
[2020] FCA 511
•21 April 2020
FEDERAL COURT OF AUSTRALIA
Mohiuddin v Minister for Home Affairs [2020] FCA 511
Appeal from: Mohiuddin v Minister for Home Affairs & Anor [2019] FCCA 1299 File number: NSD 811 of 2019 Judge: MARKOVIC J Date of judgment: 21 April 2020 Catchwords: MIGRATION – appeal from orders made in the Federal Circuit Court of Australia pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal which affirmed a decision of a delegate of the first respondent not to grant the appellant a temporary student visa – notice of appeal treated as an application for leave to appeal – application for leave to appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Federal Circuit Court Rules 2001 (Cth) r 44.12
Federal Court Rules 2011 (Cth) rr 35.12, 35.13
Migration Regulations 1994 (Cth) Sch 2, cl 500.212
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36
Date of hearing: 26 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 42 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Ms S Given of HWL Ebsworth Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 811 of 2019 BETWEEN: MOHAMMED ADIL MOHIUDDIN
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
21 APRIL 2020
THE COURT ORDERS THAT:
1.The notice of appeal filed on 24 May 2019 should be treated as an application for leave to appeal.
2.The application for leave to appeal is dismissed.
3.The notice of objection to competency filed by the first respondent is dismissed.
4.The appellant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
Mr Mohiuddin, the appellant, seeks to appeal from an order made in the Federal Circuit Court of Australia (Federal Circuit Court) pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), made on 21 August 2018. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to grant Mr Mohiuddin a temporary student visa.
A PROCEDURAL ISSUE
Rule 44.12(1)(a) of the FCC Rules provides that at a hearing of an application for an order to show cause, the court may if it is not satisfied that the application has raised an arguable case for the relief claimed, dismiss the application. Rule 44.12(2) of the FCC Rules provides that a dismissal under r 44.12(1)(a) is interlocutory. Notwithstanding that, on 24 May 2019 Mr Mohiuddin filed a notice of appeal and has not sought leave to appeal from the order made by the Federal Circuit Court.
The Minister has filed a notice of objection to competency, objecting to the competency of the appeal on the basis that the order made by the Federal Circuit Court is interlocutory, that an appeal to this Court cannot be brought unless leave is granted and that Mr Mohiuddin has neither sought nor been granted leave to appeal.
It is clear that Mr Mohiuddin requires leave to appeal from the order made by the Federal Circuit Court dismissing his application pursuant to r 44.12(1)(a) of the FCC Rules: see s 24 of the Federal Court of Australia Act 1976 (Cth). Rule 35.12 of the Federal Court Rules 2011 (Cth) (FCA Rules) provides that a person who wishes to apply for leave to appeal must file an application to be accompanied by the documents prescribed by that rule, including a draft notice of appeal. Rule 35.13 of the FCA Rules provides that an application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made, or on or before a date fixed for that purpose by the Court from which leave to appeal is sought.
Mr Mohiuddin was not legally represented in the Federal Circuit Court and is not legally represented in this Court. He filed his notice of appeal on 24 May 2019, eight days after the order dismissing his application was made in the Federal Circuit Court and within the time prescribed for filing an application for leave to appeal. Despite the notice of objection to competency filed by the Minister and given Mr Mohiuddin’s circumstances, in my opinion, the better course, and the one I will adopt, is to treat the notice of appeal as an application for leave to appeal and determine the matter on that basis. The Minster did not object to the Court proceeding in that manner.
BACKGROUND
Mr Mohiuddin is a citizen of India. He arrived in Australia on 12 April 2007 as the holder of a student (subclass 572) visa. He was subsequently granted three further student visas.
On 29 September 2016 Mr Mohiuddin applied for a student (temporary) (class TU) student (subclass 500) visa (Visa). In support of that application he provided a confirmation of enrolment (COE) bearing code 81508F72 for a Bachelor of Commerce degree at Torrens University in which Mr Mohiuddin was enrolled during the period from 6 June 2016 to 19 May 2019. In his “GTE Letter” Mr Mohiuddin stated the following under the heading “The relevance of your course(s) of study to your academic and/or employment [b]ackground”:
I have completed business and management courses at Diploma Level which focus and specialise in the field of small business and hospitality. I have purposely studied these courses so I can expand my family’s business in India. I am now enrolled in Bachelor of Commerce in order to upgrade my knowledge and skills.
The subjects and studies are directly relevant in hospitality.
My family has been running a bakery business for a long time in India and it is doing well. I came to Australia to complete courses that would help me to expand this business and get exposure in Australia and learn the new skills that will help me.
On 6 December 2016 a delegate of the Minister refused to grant the Visa because he found that Mr Mohiuddin had failed to meet the criteria for the grant of the Visa. In particular the delegate was not satisfied that Mr Mohiuddin met the criteria in cl 500.212 in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) because:
(1)contrary to Mr Mohiuddin’s claim to be undertaking his study in order to grow his family’s bakery business, he also claimed in the “future employment” section of his application that he would seek employment as a teacher after completing his course;
(2)Mr Mohiuddin had not successfully completed any units of study since 25 October 2013; and
(3)since arriving in Australia on 12 April 2007 Mr Mohiuddin had been onshore for 3201 days and away from Australia for 257 days.
On 21 December 2016 Mr Mohiuddin applied to the Tribunal for review of the delegate’s decision.
On 30 January 2018 the Tribunal invited Mr Mohiuddin to appear before it to give evidence and present arguments relating to the issues in his case. In its invitation to attend the hearing the Tribunal requested Mr Mohiuddin to provide all documents on which he intended to rely to establish that he met the criteria for the Visa. The letter also included:
Additionally, please provide this information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
We will assess whether you intend genuinely to stay in Australia temporarily.
Relevant to this requirement is a direction from the Minister known as Direction No. 69. A copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction.
On 23 February 2018 Mr Mohiuddin’s representative sent an email to the Tribunal which set out a “description of [Mr Mohiuddin’s] studies in Australia since his arrival” and attached:
(1)an overseas student confirmation of enrolment for a course commencing on 21 February 2018 and ending on 3 January 2020 from Austech Business Institute (ABI) for an advanced diploma of leadership and management;
(2)a letter of offer from ABI for that course;
(3)various certificates and diplomas that had been awarded to Mr Mohiuddin;
(4)a letter from Mr Mohiuddin explaining the gap in his studies; and
(5)a response to the hearing invitation.
The letter from Mr Mohiuddin explaining the gap included:
My father had a brain stroke in May 2015. He was admitted to hospital and was very sick. I was stressed because of this as I was living in Australia and was away from my family. My mother was very stressed and kept calling me as she could not handle the difficult situation. During that time, I could not visit India as I was very passionate about my studies at that time. I was really trying my hardest to study and do my personal best in my studies, but I still couldn’t do well in my subjects.
I was very stressed about my dad’s health condition in India. As I was in Australia, I couldn’t do much to help them and that’s why I was very worried about how they would live. I couldn’t sleep at night all during this year, as I was extremely depressed and anxious about what would happen to me in the future.
On 21 August 2018 the Tribunal affirmed the delegate’s decision not to grant Mr Mohiuddin the Visa. Mr Mohiuddin was notified of that decision on 22 August 2018.
THE TRIBUNAL’S DECISION
The Tribunal first set out the evidence provided to it by Mr Mohiuddin. The Tribunal then noted that the criteria for the Visa are set out in Pt 500 of Sch 2 to the Regulations and that the primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant for the Visa. The Tribunal identified that the issue in Mr Mohiuddin’s case was whether he had met the genuine temporary entrant criteria. The Tribunal noted that cl 500.212 is relevant to that issue. That clause provides:
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
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to;
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
The Tribunal noted that in considering whether Mr Mohiuddin satisfied cl 500.212(a) it must have regard to “Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications” (Direction) and that the Direction requires the Tribunal to have regard to the following factors:
•the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
•the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
•if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
•any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Tribunal then considered Mr Mohiuddin’s circumstances.
In relation to Mr Mohiuddin’s circumstances in his home country, the Tribunal noted that he has parents, a sibling, a wife and a young child in India and that his family has a bakery business that he plans to manage and expand on his return. While the Tribunal found that Mr Mohiuddin’s ongoing ties to his country weighed in his favour, it was also of the opinion that those ties did not appear to be a strong incentive for him to return given his continued enrolment in lower level vocational courses and the lack of a clear academic pathway.
The Tribunal considered the nature of the courses undertaken by Mr Mohiuddin and his work history in Australia. It concluded that Mr Mohiuddin has an incentive to remain in Australia due to his continuous employment over the course of his residency.
The Tribunal also considered the value of Mr Mohiuddin’s current course and his plans to study to his future, particularly his future employment in India. It observed that Mr Mohiuddin plans to return to India to manage and expand his family’s bakery business and that his evidence was that his courses will be useful to him in pursuing that objective. However the Tribunal was not satisfied that Mr Mohiuddin needed to study for more than 10 years in order to manage and develop an existing family business and found that, although the courses studied to date would be of some use to him, he was using the student visa program to maintain his residency in Australia. The Tribunal was also not satisfied that Mr Mohiuddin’s employment by Woolworths in its bakery area, which Mr Mohiuddin claimed was relevant to his future, was relevant to his Visa application given that he had worked in the family business prior to coming to Australia which indicated that he already had practical experience.
The Tribunal took into account the fact that Mr Mohiuddin was currently enrolled in a course of study but did not accept that study was his main focus in Australia but rather that his motivation in Australia has been in employment, which would account for his ongoing enrolment in related, overlapping courses and his failure to complete the Bachelor of Commerce degree in which he was enrolled.
The Tribunal also referred to Mr Mohiuddin’s evidence explaining his failure to study between April 2015 and June 2016 because his father had suffered a stroke. The Tribunal accepted that Mr Mohiuddin’s father was ill during that period. However, it also noted that Mr Mohiuddin did not return to his home country until November 2015 and had claimed that was so because of his commitment to his studies. Given Mr Mohiuddin’s failure to study from April 2015 to June 2016 the Tribunal did not accept that Mr Mohiuddin was committed to his studies as he claimed or that his father’s illness was the reason for his failure to study or make academic progress.
For those reasons the Tribunal was not satisfied that Mr Mohiuddin intended genuinely to stay in Australia temporarily and concluded that he did not meet the criteria in cl 500.212(a). Thus the Tribunal was not satisfied that Mr Mohiuddin is a genuine applicant for entry and stay as a student as required by cl 500.212.
THE FEDERAL CIRCUIT COURT PROCEEDING
On 20 September 2018 Mr Mohiuddin filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. He raised the following two grounds of review in his application (as written):
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.
The primary judge referred to an outline of written submissions provided by Mr Mohiuddin before him. At [17] on his reasons the primary judge noted the following about those submissions:
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.
The primary judge then turned to consider the grounds raised in the application.
The primary judge noted that ground 1, which asserted that the Tribunal did not consider Mr Mohiuddin’s “circumstances” was expressed in such general terms “as to be virtually meaningless”. However, the primary judge found that the Tribunal conducted the review in light of all the relevant information before it and that it considered all of Mr Mohiuddin’s relevant circumstances as was clear from a comparison of its reasons to the material put before it by Mr Mohiuddin.
The primary judge noted that insofar as ground 2 asserted error on the part of the delegate, his Honour would take it to assert error on the part of the Tribunal only. His Honour said that he understood ground 2 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 being because Mr Mohiuddin’s father was ill and he was stressed.
The primary judge rejected that contention as an inaccurate construction of the Tribunal’s reasons, noting that the Tribunal considered that matter at [5], [7] and [20] of its decision record. The primary judge referred to the evidence before the Tribunal that Mr Mohiuddin’s father was admitted to hospital in India for 10 days from 2 to 12 May 2015 suffering from “acute ischemic stroke” and found that the Tribunal’s conclusion that this did not explain Mr Mohiuddin’s absence from study from April 2015 to June 2016 was plainly open to it.
The primary judge concluded that no jurisdictional error as alleged by Mr Mohiuddin in grounds 1 and 2 of his application could be made out and that Mr Mohiuddin was unable to advance an arguable case of jurisdictional error by the Tribunal. The primary judge thus dismissed Mr Mohiuddin’s application pursuant to r 44.12(1)(a) of the FCC Rules with costs.
THE APPLICATION FOR LEAVE TO APPEAL
On 24 May 2019 Mr Mohiuddin filed a notice of appeal which, for the reasons set out at [5] above, I will treat as an application for leave to appeal. The following four grounds are raised as proposed grounds of appeal:
1.I sincerely appreciate how [the primary judge] dealt with my case but he gave me an Order dismissing my application in spite of providing a submission which I believe His Honour failed to consider properly.
2.In the First Respondent’s Outline of Submissions prepared by Sophie Alexandra Helena given there is important point no 16 which says 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 Act.
3.In my case I do not agree with the Tribunal decision because it failed to take into account the compelling and compassionate circumstances involved which I outlined in my submission, especially the fact that my father suffered a stroke and such affected my ability to study yet the Tribunal failed to consider it as compelling and as reasonable as to why I failed to continue my studies.
4.I am hoping that the honourable Federal Court will look at my situation differently than [the primary judge].
Mr Mohiuddin did not file any written submissions in support of his grounds. At the hearing he submitted that:
(1)the Tribunal did not consider his circumstances, including his family situation and his mental state;
(2)he is a genuine student and has successfully passed all of his courses;
(3)the Minister refused the Visa because he did not attend courses from April 2015 to May 2016. In April 2015 he was in India. When due to return to Australia, his father had a stroke and he thus delayed his return. As he returned late, he deferred his studies for that term. He continued to study the following term but because of his family situation he could not concentrate and pass his course. In July 2015 he continued with his course and finished that course in October 2015. In November 2015 he returned to India for the summer holidays;
(4)upon return from summer holidays in March 2016, Mr Mohiuddin told his agent that he wished to continue to study in “that uni”. His agent had told him that the fees paid in March 2015 for the course which he had deferred could be “recovered” in the following term but upon his return the agent told him that he had to pay additional fees. By the time he had spoken to the university and his agent the enrolment period for the March 2016 intake had passed. Thus Mr Mohiuddin next attended Torrens University in June 2016;
(5)once his last student visa expired he continued to study at the ABI; and
(6)he believes that the Tribunal’s decision is wrong and that this Court may look at his circumstances differently. He wishes to finish his studies in one and a half years and to graduate and return home.
Consideration
The principles governing the grant of leave to appeal are well settled. In exercising its discretion to grant leave to appeal the Court will consider: first, whether in all the circumstances the decision at first instance is attended by sufficient doubt to warrant its reconsideration by a full court; and secondly, “whether substantial injustice would result if leave were refused, supposing the decision to be wrong”: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398. The test is cumulative and each limb must be made out: Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 at [5].
In my opinion Mr Mohiuddin has failed to establish that the primary judge’s decision is attended by sufficient doubt to warrant its reconsideration on appeal. My reasons for reaching that conclusion follow.
By ground 1 Mr Mohiuddin appears to allege that the primary judge failed properly to consider his submissions. That allegation is not borne out by the primary judge’s reasons. His Honour expressly referred to the outline of written submissions provided to the court by Mr Mohiuddin at the hearing and commented on the nature of, and considered, those submissions. At [17] of the primary judge’s reasons, his Honour expressly dealt with the only legal argument that he could discern arose from those submissions (see [24] above).
Grounds 2 and 4 can be addressed together. On one view those grounds amount to no more than statements. Taken at its highest ground 2 suggests that the primary judge erred in finding that the Tribunal did not fail to consider certain matters put to it by Mr Mohiuddin. The primary judge’s reasons demonstrate that his Honour considered whether the Tribunal failed to consider any of the matters put to it by Mr Mohiuddin. The primary judge found that the Tribunal had considered the matters put to it, as was evident from a comparison of the material provided to the Tribunal by Mr Mohiuddin and the matters set out by the Tribunal particularly at [4]-[9] of its decision record, and determined that it had not failed to consider any of those matters. Further, the Tribunal had regard to the matters recited at [4]-[9] of its decision record in determining whether Mr Mohiuddin met the requirements of cl 500.212(a).
I infer that, by ground 4, Mr Mohiuddin expresses disagreement with the conclusions reached by the primary judge and dissatisfaction with the outcome of the proceeding before the primary judge. However, he has not pointed to any specific legal error on either the part of the Tribunal or the primary judge in ground 4 or, indeed, in his other grounds.
By ground 3 Mr Mohiuddin expresses disagreement with the Tribunal’s decision because he alleges it failed to take into account “the compelling and compassionate circumstances” which he outlined in his submissions, especially that his father had suffered a stroke which had affected his ability to study. However, as the primary judge identified, the Tribunal considered that issue at [5], [7] and [20] of its decision record. In particular, at [20] of its decision record the Tribunal said:
The applicant gave evidence at the Tribunal hearing to explain his failure to study between April 2015 and June 2016. He said his father had suffered a stroke and this had affected his ability to study. Evidence was provided to demonstrate the applicant’s father had been admitted to hospital in India for 10 days from 2 to 12 May 2015 suffering from ‘acute ischaemic stroke’. 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.
As the primary judge found, and as was noted by the Tribunal, the material provided by Mr Mohiuddin indicated that his father was admitted to hospital in India for 10 days from 2 to 12 May 2015. The Tribunal also accepted that Mr Mohiuddin’s father was ill during this period but noted that Mr Mohiuddin did not return to India until November 2015 because of his claimed commitment to his studies. However, in light of Mr Mohiuddin’s failure to study from April 2015 to June 2016, the Tribunal did not accept that Mr Mohiuddin was committed to his studies as claimed or that it was because of his father’s illness that he failed to study in that period. As the primary judge found that conclusion was plainly open to the Tribunal based on the material before it.
In his oral submissions Mr Mohiuddin said that the explanation for the break in his studies included that there was a holiday period over the summer from November 2015 until March 2016 and that he had missed the enrolment period for the March 2016 intake. Neither of these matters was raised by Mr Mohiuddin in his letter to the Tribunal explaining the gap in his studies. However, at [5] of its decision record, the Tribunal notes that when asked to comment on the gap in his studies, Mr Mohiuddin referred both to his inability to concentrate and to “re-enrol in March 2016”. The Tribunal considered the gap in Mr Mohiuddin’s studies in the context of its consideration of whether he was a genuine temporary entrant and more particularly whether his father’s illness provided a plausible explanation for the gap in his studies, finding that it did not.
Mr Mohiuddin also made submissions about his interaction with his agent and the advice given to him about deferring his studies in April 2015. The Minister submitted, and I accept, that was not an issue raised below. In any event, Mr Mohiuddin’s interaction with his agent about fees paid for his courses does not advance the issues raised by him on appeal. As submitted by the Minister, the advice given by the agent to Mr Mohiuddin concerned Mr Mohiuddin or his agent’s interaction with the university and not any interaction by the agent with the Tribunal such that it could be said that there was any fraud perpetrated on the Tribunal which might vitiate its review.
CONCLUSION
For those reasons leave to appeal should not be granted. As Mr Mohiuddin has been unsuccessful he should pay the Minister’s costs as agreed or taxed.
I will make an order that the notice of appeal filed by Mr Mohiuddin on 24 May 2019 should be treated as an application for leave to appeal and an order dismissing that application with costs. An order should also be made dismissing the Minister’s notice of objection to competency.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 21 April 2020
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