FEDERAL COURT OF AUSTRALIA Mohammed v Minister for Immigration and Border Protection [2017] FCA 506 Appeal from: Mohammed v Minister for Immigration & Anor [2016] FCCA 3133 File number: NSD 2126 of 2016 Judge: MARKOVIC J Date of judgment: 11 May 2017 Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A) Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 96 ALD 1 Date of hearing: 11 May 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 33 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms N Johnson, Mills Oakley Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs. ORDERS NSD 2126 of 2016 BETWEEN: ABDUL AMEEN UDDIN MOHAMMED Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: MARKOVIC J DATE OF ORDER: 11 MAY 2017 THE COURT ORDERS THAT: 1. The application for leave to appeal filed on 12 December 2016 be dismissed. 2. The applicant 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 (REVISED FROM TRANSCRIPT) MARKOVIC J: 1 The applicant applies for leave to appeal from a judgment and orders of the Federal Circuit Court of Australia (Federal Circuit Court) made on 5 December 2016 dismissing an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) of a decision of the second respondent (Tribunal): see Mohammed v Minister for Immigration & Anor [2016] FCCA 3133 (Mohammed). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) visa. The orders made by the primary judge dismissing the application were made pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). Those orders are therefore interlocutory and the applicant requires leave to appeal from them pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Background 2 The applicant is a citizen of India who arrived in Australia as the holder of a student visa on 19 July 2008. On 15 June 2015 the applicant applied for a further student visa on the basis of his enrolment in a Certificate IV Diploma and Advanced Diploma in Marketing at the Australis Institute of Technology and Education. 3 On 3 August 2015 a delegate of the Minister refused to grant the visa as the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student as required by cl 572.223 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). On 21 August 2015 the applicant applied to the Tribunal for review of the delegate's decision. He provided a copy of the delegate's decision record with his review application and appointed a representative. 4 The applicant was invited to attend a hearing before the Tribunal, scheduled for 13 April 2016, to give evidence and present arguments relating to the issues in his case. The applicant sought and was granted three postponements of the Tribunal hearing. On 28 June 2016 the applicant's representative wrote to the Tribunal informing it that the applicant was unable to attend a rescheduled hearing, which was to be held on 29 June 2016, in person. The Tribunal refused to grant a further postponement of the hearing but confirmed that the applicant was able to attend by telephone. 5 On 29 June 2016 the applicant provided submissions and documents in support of his application. He attended the hearing with a representative and was assisted by an Urdu interpreter. On that day, but after the hearing, the applicant's representative provided further submissions and also requested further time to provide a new confirmation of enrolment certificate and financial evidence. The Tribunal refused this request on the same date. 6 On 30 June 2016 the Tribunal affirmed the delegate's decision on the basis that the applicant had failed to satisfy cl 572.223 of Sch 2 to the Regulations. the tribunal decision 7 The Tribunal noted that, having regard to the applicant's current proposed course of study, the relevant subclass was Subclass 572. It then identified that the issue was whether the applicant met the time of decision criterion in cl 572.223(1)(a) of Sch 2 to the Regulations. 8 In considering whether the applicant met the genuine temporary entrant criterion contained in that clause, the Tribunal considered Direction No. 53 which, in turn, required it to consider the applicant's circumstances against a list of factors. Those factors were: the applicant's circumstances in his or her home country, potential circumstances in Australia and the value of the course to the applicant's future; the applicant's immigration history; if the applicant were 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. 9 After considering his application, the Tribunal found that the applicant did not satisfy the genuine temporary entrant criterion. Its reasons for reaching this conclusion were: (1) having regard to the applicant's immigration history, the Tribunal was of the view that the applicant saw Australia as his long-term home and that he was using the student visa system to maintain residency; (2) in relation to the applicant's circumstances, the Tribunal noted the applicant's evidence that he had been unable to study because of his health problems, his father's health problems and the anxiety associated with awaiting the outcome of the Tribunal decision. The Tribunal also noted that the applicant's current certificate of enrolment had been cancelled. The Tribunal found that although it was able to produce a decision, that would not overcome the applicant's and his father's health problems. The Tribunal had regard to the number of hearing postponements that the applicant had requested and to the fact that the applicant was not studying and had not been studying for the six months prior. The Tribunal did not accept that the applicant's circumstances were conducive to further study; (3) in relation to the applicant's circumstances in his home country, the Tribunal noted the applicant's evidence that his father had a heart problem and that his father's health negatively impacted on his ability to study. While the Tribunal gave weight to the evidence that his father's health had impacted the applicant, it did not accept that this was likely to change in the near future, considering the length of time that had passed. The Tribunal also considered that the applicant's spouse remained in India, which may provide an incentive for the applicant to return, and the applicant's evidence that they had not decided whether the applicant's spouse would join him in Australia if he were granted the student visa. It was therefore unable to make a finding about whether or not the applicant's wife would join him and any impact this may have; (4) in relation to the value of the course to the applicant's future, the Tribunal found that the applicant had studied fairly extensively at the vocational education level and it did not accept that further study at the same level would be of value to him. In making that finding the Tribunal took into account the applicant's submission that he requires marketing to run and expand his family's business. It gave that submission limited weight in light of the length of time the applicant had been in Australia before enrolling in the current course, the fact that he was not enrolled at the time of the hearing and that he had not studied for at least six months; and (5) the Tribunal also considered the applicant's submission that his agents had enrolled him in courses without his knowledge in order to make commissions. While accepting that this might be true, the Tribunal found that the applicant had spent a substantial amount of time in Australia and that the influence of unscrupulous agents would have lessened as the applicant's exposure to and experience of the Australian educational system increased. 10 The Tribunal found that the applicant did not meet cl 572.223(1)(a) and affirmed the decision under review. The Tribunal also found that the applicant did not meet the criteria for the other visa subclasses within Class TU. the proceeding in the Federal Circuit Court 11 On 29 July 2016 the applicant commenced a proceeding in the Federal Circuit Court seeking review of the Tribunal decision. The applicant's amended application filed in that court on 15 November 2016 included 17 grounds of review. The applicant relied on his affidavit filed with his original application, which the primary judge received as a submission. The parties also prepared written submissions and made oral submissions at the hearing. 12 The primary judge found that the applicant had presented himself as a victim of unscrupulous agents whose advice he had followed precisely. The primary judge noted that the applicant was concerned that the delegate and the Tribunal did not pay proper regard to his circumstances. However, the primary judge found that that complaint was not substantiated by the available material. The primary judge found that the applicant's claims to the Tribunal that his studies had been disrupted by the poor advice of education agents, the cancellation of a certificate of enrolment while he was overseas and the deteriorating health of his father, which necessitated his travel to India, had been taken into account by the Tribunal, but that the Tribunal was nevertheless unable to conclude that the applicant was a genuine applicant for temporary entry to Australia as a student. 13 The primary judge found that there was no arguable case of error by the Tribunal in its analysis and that the Tribunal's findings were open on the available material and for the reasons it gave. The primary judge addressed the 17 grounds of review raised by the applicant. His Honour noted that he agreed with the Minister's submissions dealing with those grounds. In relation to those grounds: grounds 1 and 2 alleged that the Tribunal failed to afford procedural fairness to the applicant during its questioning at the hearing because it made a decision on "limited information" and materials and mistook the facts. The primary judge found that this was not a proper ground of review and noted that the applicant had attended a Tribunal hearing, that the Tribunal had given him an opportunity to give evidence and make arguments and that it had identified specific concerns with his evidence which were discussed with him. The primary judge also noted that the applicant did not take the opportunity afforded to him to file and serve further affidavit evidence and that no transcript of the Tribunal hearing was before the court. His Honour found that there was no support for the assertion that the applicant was not afforded a proper opportunity to be heard or that the Tribunal otherwise breached s 360 of the Migration Act; the primary judge found that grounds 3 and 8 to 10 appeared to take issue with the Tribunal's finding that the applicant's certificate of enrolment had been cancelled. His Honour found that the Tribunal decision revealed that it had put this information to the applicant for comment pursuant to s 359AA of the Migration Act and that the applicant had responded that his enrolment was valid, but later conceded that his enrolment had been cancelled. The primary judge also noted that the applicant sought to explain why he gave inconsistent evidence, but noted that the Tribunal accepted the applicant's subsequent evidence that he was no longer enrolled and made no adverse findings about his inconsistent evidence. The primary judge found that those grounds failed; the primary judge found that ground 4, which stated that the applicant was represented by a migration agent and "totally relied on his advice", was not a proper ground of review and did not identify any jurisdictional error in the Tribunal decision; the primary judge then considered grounds 5, 6 and 7 together. They concerned the applicant's assertion that he attended courses for almost six months after filing his application for review, that he was confused in his evidence about the time of study, that his study was hampered for several reasons, including his health and that of his father, and that his concern about his father's illness was genuine. The primary judge found that these were not proper grounds of review and that, in essence, they requested impermissible merits review; similarly, the primary judge found that grounds 9 and 10 were not proper grounds of review and did not identify any jurisdictional error in the Tribunal decision. In those grounds the applicant contended that his representative wrote to the Tribunal about his circumstances concerning his enrolment and that he wanted some time from the Tribunal for "consultation and confirmation about enrolment"; the primary judge noted that grounds 11, 12 and 16 repeated the applicant's submission to the Tribunal that he was enrolled in several courses by agents without his knowledge due to commissions that the agents received. His Honour found that the Tribunal had expressly considered the submission and had accepted that it may be true, but had found that the applicant had spent a substantial amount of time in Australia and that the influence of unscrupulous agents would have lessened as the applicant's exposure to and experience of the Australian education system increased. The primary judge found that the Tribunal was ultimately most concerned that the applicant had not studied for a period of at least six months at the time of the hearing and that it found that the applicant must accept responsibility for those actions or lack thereof. The primary judge found that the Tribunal's findings were open to it on the available materials and for the reasons it gave. His Honour also found that these grounds were not proper grounds of review and were a request for impermissible merits review; ground 13 alleged that the Tribunal made a decision "with the closed mind" when it found that the applicant had only completed 5 out of 17 courses in which he had enrolled while living for seven years in Australia. The primary judge found that the Tribunal made no such finding. The ground also contended that the Tribunal made an "unreasonable allegation" that the purpose of the applicant's application to extend his student visa was to prolong his stay in Australia. The primary judge noted that this finding was made having regard to the applicant's immigration history and was open on the available material and for the reasons the Tribunal gave. The primary judge found that this was not a proper ground of review and sought impermissible merits review. To the extent that ground 13 also alleged bias on the part of the Tribunal, the primary judge found that there was nothing in the available materials to support such an allegation. His Honour found that the Tribunal had provided comprehensive reasons for not accepting that the applicant was a genuine student and that its findings were open on the materials before it and for the reasons it gave; the primary judge rejected grounds 14 and 15 on the basis that they were not proper grounds of review and sought impermissible merits review. In ground 14 the applicant stated that he had paid his course fees, fulfilled his student visa conditions, did not breach immigration laws and that he wanted to complete his marketing course to set up a new business. In ground 15 the applicant stated that the Tribunal "undermined" the value of the course, that he is young and married to a "highly educated girl" and that he and his wife intend to set up a new business in India; and ground 17 alleged that the Tribunal did not review the application in a "judicial" manner and that it denied the applicant procedural fairness and natural justice. The primary judge noted that the ground was difficult to understand and did not identify any jurisdictional error in the Tribunal decision. His Honour further observed that the question for the Tribunal was whether the applicant genuinely intended to stay in Australia temporarily and that there was nothing to indicate that the applicant's submissions were not considered or that they were misunderstood by the Tribunal. The primary judge noted that, ultimately, the Tribunal found that the applicant's current circumstances were not conducive to study and that it was concerned that the applicant was not enrolled in a current course and had not studied for a period of at least six months at the time of the hearing. The primary judge found that, in the absence of meaningful particulars, the ground could not succeed. 14 The primary judge concluded that the applicant was unable to demonstrate an arguable case of jurisdictional error by the Tribunal. Accordingly, his Honour dismissed the application pursuant to r 44.12(1)(a) of the FCC Rules. The application for leave to appeal 15 On 12 December 2016 the applicant filed his application for leave to appeal. In his application under the heading "Grounds of application" the applicant included two grounds which are in the following terms, as written: 1. Hon Judge Driver of the Federal Circuit Court failed to hold that the AAT committed a jurisdictional error when it did not account the circumstances in which the appellant completed the Courses. The Tribunal failed to determine the value of Course to the applicant's future. The Tribunal was confused in measuring the standards to determine about the genuinness of a overseas Student to stay in Australia to complete a course. The appellant claims that he was denied procedural fairness when the Tribunal undermind the Value of Vocational level courses for the future. The Tribunal made decision based on assumptions and speculations. 2. Hon. Judge failed to hold that the Tribunal failed to comply with all the requirements of s 424 or s424 AA of the Migration Act 1958 in respect of information that it considered would be the reason or part of the reason for affirming the decision under review. 16 The applicant has filed an affidavit sworn by him on 9 December 2016 in support of his application for leave to appeal. In his affidavit, the applicant relevantly states, as written: 2. My application for the Leave to Appeal a Federal Court Proceedings is based on the material already filed with the Department of Immigration and Border Protection and the oral and written evidence given to the Administrative Appeal Tribunal. 3. I do believe and stated in the Breif Description that I have genuine grounds for Student Visa. I always respect Australian Value during my stay in Australia and obey the laws of Australia. I understand that a student visa is a Temporary Visa, and that being granted a student visa will not guarantee that I will be eligible for a grant of further visa to remain in Australia. I have have completed most of thhe Courses to enhance my knowledge to establish a business in India. The Delay in completing course happened because of circumstances beyond my control. 17 The applicant annexes a document titled "Brief Description" to his affidavit. That document was admitted as a submission. Its contents are largely replicated in the applicant's written submissions. The applicant's affidavit also annexes a draft notice of appeal which includes two grounds of appeal. Those grounds, although not identical, are in substance the same as the grounds included in the application for leave to appeal. They are in the following terms, as written: 1. Hon. Judge Driver of the Federal Circuit Court failed to hold that Administrative Appeal Tribunal committed a jurisdictional error when it did not account the circumstances in which the appellant completed the courses. The Tribunal failed to determine the value of courses to the applicant's future. The Tribual was confused in measuring the standards to determine about the genuineness of a overseas student to stay in Australia to complete a course. the appellant claims that he was denied procedural fairness when the Tribunal undermind the value of Vocational level courses for the future. The Tribunal mades decision based on assumptions and speculations. The decision was flawed on the grounds of Delegate'es constructive failure to exercise jurisdiction. 2. The appellant claims that the Tribunal formed the preoccupied view or opinion about the Applicant's written and oral evidence . The Tribunal failed to comply with all the requirements of s 424 or s424 AA of the Migration Act 1958 in respect of information that it considered would be reason or part f reason for affirming the decision under review. Legal principles 18 In order to succeed in an application for leave to appeal an applicant must show that, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by a Full Court and that substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399. Consideration Ground 1 19 By this ground the applicant alleges that the primary judge failed to hold that the Tribunal committed a jurisdictional error when "it did not account the circumstances in which the appellant completed the courses". The ground also asserts that the Tribunal failed to determine the value of the courses to the applicant's future and was "confused in measuring the standards to determine about the genuineness of a (sic) overseas student to stay in Australia to complete a course". It alleges that the applicant was denied procedural fairness by the Tribunal when it undermined the value of vocational courses for the future. Finally, by this ground the applicant contends that the Tribunal decision was based on assumptions and speculation. 20 In his written submissions the applicant submitted that the primary judge failed to hold that the Tribunal did not consider all of the factors under cl 572.223(1)(a) of the Migration Act in making its decision "over the issue of appellant's claim for a genuine Temporary entrant". The applicant further submitted that the Tribunal did not give weight to the applicant's circumstances and that the Tribunal affirmed the decision of the Department without "giving any discretion to the appellant for any factors listed in Direction 53". 21 The applicant also contended that the primary judge failed to hold that he was denied procedural fairness during the Tribunal's questioning of him at the hearing. The applicant submitted that the Tribunal member asked him irrelevant questions to confuse him and deviate from "the core point of issue". The applicant said that he is not a lawyer and that he can only present facts, not legal argument. The applicant also referred to an email dated 14 July 2015, the details of which he alleges the Tribunal intentionally ignored. 22 Finally, the applicant submitted that the primary judge made his decision based on limited information. The applicant said that he was unaware that he should file and serve further affidavit evidence by 21 November 2016 and that he has no money to pay for a transcript of the Tribunal hearing. 23 The matters raised by the applicant in ground 1 do not constitute a proper ground of appeal. By the various matters which are raised the applicant effectively seeks impermissible merits review of the Tribunal decision. Contrary to the applicant's submission, in considering whether he met the genuine temporary entrant criterion in cl 572.223(1)(a) the Tribunal did consider Direction 53. On the basis of the matters identified therein and which applied in the applicant's case the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily. 24 Further, as found by the primary judge, there is no evidence that the applicant was denied procedural fairness at the Tribunal hearing. To the extent that the applicant contends that he had no knowledge that he should file and serve affidavit evidence by a specified date and had no money to pay for a transcript of the hearing, I accept the Minister's submission that the applicant appeared at the first court date in the proceeding before the Federal Circuit Court on 20 October 2015 with the assistance of an interpreter and consented to orders requiring that he file and serve affidavit evidence, including a transcript of the hearing, by 21 November 2016. 25 The applicant's submission that the Tribunal "intentionally ignored" details mentioned in an email dated 14 July 2015 is a reference to an email sent to the Department in response to a request for further information. That email is not before me. The Minister submitted that its contents are accurately summarised by the Tribunal in its decision record at [4]. At that part of its decision record, the Tribunal refers to a submission provided by the applicant and then sets out a summary of that submission. I accept the Minister's submission that the Tribunal did not ignore the email as submitted by the applicant. Ground 2 26 By this ground the applicant alleges that the primary judge failed to hold that the Tribunal failed to comply with all the requirements of ss 424A or 424AA of the Migration Act in respect of information that it considered would be the reason or part of the reason for affirming the decision under review. While the applicant's submissions do not appear to expressly address this ground, in the paragraph following a recitation of it there is reference to the certificate of enrolment. 27 Sections 424A and 424AA have no application to the Tribunal's review of the delegate's decision under Pt 5 of the Migration Act. The Minister submitted that to the extent that the applicant intends to allege a failure to comply with ss 359A or 359AA of the Migration Act, this ground was not raised in the proceeding before the Federal Circuit Court. Thus the applicant would require leave to raise it on any appeal. However, as the primary judge observed at [33] of his reasons, the Tribunal decision shows that it put information relating to the applicant's certificate of enrolment to him at the hearing for comment pursuant to s 359AA. 28 Further, I accept the Minister's submission that the applicant has not identified any other 'information" that was before the Tribunal that would have enlivened the Tribunal's obligations under s 359A. The Tribunal decision turned on an assessment of the applicant's own evidence. There was no obligation on the Tribunal to invite comment on its subjective appraisals, thought processes or determinations, which do not constitute information for the purposes of s 359A: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 96 ALD 1 at [18]. The balance of the applicant's written submissions 29 The balance of the applicant's written submissions go beyond the proposed grounds of appeal as pleaded. They take issue with a number of the Tribunal's findings and to that extent invite impermissible merits review. They also challenge some of the findings of the primary judge, but in doing so do not raise proper grounds of appeal. More particularly: to the extent those submissions raise the applicant's father's health problems, that was a matter that was considered by the Tribunal; to the extent that those submissions contend that the Tribunal made its decision "with a closed mind", the primary judge considered a similar submission, rejecting it as without foundation on the basis that there was nothing in the available materials to support a complaint that a fair-minded and informed person might reasonably apprehend that the Tribunal might not bring or have brought an impartial mind to bear on the decision: see Mohammed at [39]; the applicant also seeks to advance a case for the grant of a student visa in those submissions but that is not the role of this Court, nor was it the role of the primary judge; and finally, the applicant refers to a failure by the primary judge to hold that "the Tribunal made jurisdictional error when he was denied procedural fairness". That submission repeats an aspect of ground 1 which I have addressed above at [24]. The applicant's oral submissions 30 The applicant made oral submissions which went to three matters. First, he raised the conduct of his agents and the multiple certificates of enrolment that were issued; secondly, he raised his concern that the Tribunal had misunderstood him when it made a finding about his not attending his course for six months; and thirdly, he raised the issue of his father's death, as referred to by the primary judge. 31 In relation to the conduct of the agents who assisted the applicant, the primary judge referred to that matter at [25] and following of his reasons. As I have already observed, the primary judge noted that the applicant presented himself as a victim of unscrupulous agents whose advice he followed and found that both the delegate and the Tribunal paid proper regard to the applicant's circumstances. The primary judge also noted that the Tribunal had regard to the issues surrounding the cancellation of the applicant's certificate of enrolment and that it had accepted the applicant's evidence that he was no longer enrolled and made no adverse findings regarding his inconsistent evidence. 32 As to the issue concerning the death of the applicant's father, the primary judge noted that the applicant had raised that matter in his written submissions, including a submission that he was unable to attend the funeral due to the proceeding before the court. However, the primary judge also observed that at no time did the applicant seek an adjournment in order to attend his father's funeral and that, had such a request been made, it would have received sympathetic consideration. The primary judge also observed that the applicant had informed him at the hearing that his father had died early in the morning and in accordance with Muslim custom was buried within 24 hours. Thus, the applicant said, he could not have travelled to India in time to attend the funeral and thereafter he did not see much point in going. The primary judge concluded on this matter that, accepting those facts, it was not the court proceeding or the condition on the applicant's visa, another matter that he had raised in his written submissions, that presented an obstacle to his attendance at his father's funeral. In any event, in making submissions before me the applicant has not suggested that any ground of appeal arises out of the facts surrounding his non-attendance at his father's funeral and the way in which the matter proceeded before the primary judge. conclusion 33 The applicant has failed to establish that there is sufficient doubt as to the correctness of the decision of the primary judge and that any substantial injustice would be suffered by him if leave were refused. The result is that the applicant's application for leave to appeal cannot succeed. I will make orders dismissing the application and ordering the applicant to pay the Minister's costs as agreed or taxed. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate: Dated: 19 May 2017