Muhammad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appellant's notice of appeal filed 10 July 2020 is dismissed.
2. The appellant is to pay the first respondent's costs to be taxed failing agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 Mr Muhammad, the appellant, acknowledged in his written submissions that his appeal involves "a short point". He raised the identical short point before the Federal Circuit Court judge (Muhammad v Minister for Immigration & Anor (No. 2) [2020] FCCA 1587 (Muhammad)). It was as follows: … the Tribunal failed to consider important evidence, in its true import, or seriously misconstrued evidence before it, in a way that was material to the outcome, in that the Tribunal failed to appreciate that the Graduate Diploma course was at an academic level that is higher than the [appellant's] earlier Bachelor degree. 2 In his judgment, the primary judge dismissed Mr Muhammad's application for judicial review of the Administrative Appeals Tribunal's (the Tribunal) decision which, in turn, affirmed an earlier decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The net effect of all these decisions was to dismiss the application which Mr Muhammad made on 15 March 2018 for a Student (Temporary) (Class TU) (Subclass 500) visa. 3 As already mentioned, the primary judge rejected the same point before him. His Honour did so in the following terms (Muhammad at [35]): The Tribunal's finding about the level of a Graduate degree relative to a Bachelor degree obtained in Pakistan was not critical to its consideration of the fundamental issue for its determination, namely as to whether or not the [appellant] genuinely intended only to remain in Australia temporarily. Even if the finding at [32] of the Tribunal's reasons was in error, it was not of so fundamental a character so as to destroy the foundation of the decision, and thereby give rise to jurisdictional error. 4 The part of the Tribunal's reasons to which his Honour referred in this conclusion was as follows: 32. The tribunal notes that the [appellant] has already completed a Bachelor of Science and Computer Engineering in Pakistan. The tribunal considers this university level study completed by the [appellant] in Pakistan to be at a higher level than the study at the vocational education and training sector level and it is of concern to the tribunal that the [appellant] was already a university graduate before ever coming to Australia and has, since his confirmation of enrolment certificate in the Master of Information Technology was cancelled, chosen to study qualifications in the vocational education and training sector at a level below his university accomplishment. 5 His Honour's conclusion in Muhammad at [35] above was preceded by a detailed examination of the Tribunal's reasons (Muhammad at [14]-[30]), a recitation of Mr Muhammad's ground of review above (Muhammad at [31]) and the following process of reasoning (Muhammad at [32]-[34] - quotations and citations omitted): 32. There was no admissible evidence before the Court which irrefutably could have assisted the Court in concluding whether the [appellant's] submission as to relative academic degree levels were higher or lower than each other, but it was not the Court's role to do so. It is clear that the Tribunal undertook an assessment as to whether the courses in fact undertaken by the [appellant] since his arrival in Australia were vocational education and training courses in character, rather than higher level education courses, such as the Master of Information Technology course which the [appellant] initially enrolled in. In that regard, it is of note that the [appellant's] PRISMS record (Exhibit 2) indicated that the Master of Information Technology course first commenced by the [appellant] on 27 July 2015 was cancelled on 30 June 2017 because of non-commencement of studies, and that a second Master of Information Technology course commenced on 29 February 2016 was cancelled on 31 December 2017 because of unsatisfactory course progress. Whether such records refer to the same enrolment or not is of no moment. What the records do indicate, however, is that the [appellant] first intended to commence study in Australia for a Master's degree rather than a Graduate degree. The Tribunal was entitled to have regard to the obvious level of academic difference between the courses actually undertaken by the [appellant], as opposed to the course first intended to be so undertaken by the [appellant], when considering whether the [appellant] intended to genuinely remain temporarily in Australia or not. 33. Insofar as the [appellant's] submissions constitute a criticism of the Tribunal's findings at [32] of its reasons, such submissions have been made with an eye keenly attuned to error … 34. It was for the Tribunal to weigh up all of the evidence before it and arrive at a considered decision as to whether the relevant cl. 500.212 criteria had been met or not. The Tribunal made a reasonable decision having undertaken that weighing up exercise. It did not fall into jurisdictional error in the way in which it arrived at its decision, even if another logical, rational and reasonable decision maker may have arrived at a different decision. The Authority clearly engaged upon a consideration of the [appellant's] claims and found against the [appellant]. It has long been accepted that different minds might legitimately reach different conclusions … 6 On the issue of legal unreasonableness, his Honour then added (at [36]-[37] - again, quotations and citations omitted): 36. It cannot be said that no other rational or logical decision maker could not have made the same decision … 37. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li … 7 In oral submissions on this appeal, Mr Muhammad's counsel pointed again to [32] of the Tribunal's reasons and claimed that, in addition, the following parts of the Tribunal's reasons evidenced its serious and material error: (a) the second last sentence of [35], which he described as "the wrongly identified regression", as follows: The tribunal does not consider his academic progress to be that of a genuine student. (b) the several countervailing factors for and against Mr Muhammad's application as identified at [38], as follows: The [appellant] told the tribunal that his fiancée and his parents and his two brothers and a sister continue to reside in Pakistan. The [appellant] became engaged in April 2019. The [appellant] told the tribunal that he speaks to his fiancée and family in Pakistan daily using WhatsApp or Messenger and he sometimes also calls on the phone. The [appellant] told the tribunal that he owns agricultural land in his name in Pakistan worth approximately AUD400,000 and the tribunal accepts this. In relation to community ties the [appellant] said that he owns a parcel of agricultural land in Pakistan, which is 20 acres. He manages this remotely from Australia and has an onsite manager who gets a percentage of the income from the farm. His parents were farmers but are now retired, so he has experience in farm management. The [appellant] said he derives income of AUD25,000 from the farm. The [appellant] has also set up a charity in 2016 in Pakistan called the Rani Foundation. Rani was his sister-in-law who passed away just before he came to Australia. The foundation aims to enhance human excellence and female empowerment by holding seminars and helping local women gain financial independence. He said his brother-in-law assists in managing this. In light of all this evidence the tribunal accepts that the presence of the [appellant's] family and property in Pakistan would constitute an incentive to return to Pakistan. (c) to similar effect, the concluding observations at [50] which, he claimed, demonstrated the Tribunal conducting a balancing exercise in assessing Mr Muhammad's application, as follows: The tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily recognising the possibility that this may change over time to utilise lawful means to remain in Australia. The tribunal has found that the [appellant's] family and community ties with Australia do not constitute an incentive to remain in Australia. The tribunal has also found that the [appellant's] family and community ties in Pakistan would constitute an incentive to return to Pakistan. However, taking into account the amount of time the [appellant] has now spent in Australia on student and associated bridging visas and the fact that the [appellant] already has a Bachelor of Science in Computer Engineering, the fact that there was a period of one and a half years where the [appellant] continued to complete courses in the vocational education and training sector and was not enrolled in a Masters course, as well as the fact the [appellant] has given conflicting information about his future plans and he has failed to explain in any meaningful detail why he would request a Master of Business Information Systems in order to complete his future plans, on balance the tribunal is concerned that a further student visa may be used primarily for maintaining ongoing residence. 8 It can be seen from Mr Muhammad's ground of appeal and these submissions that he has sought to focus on the factual conclusion the Tribunal reached at [32] of its reasons about the relative value of certain academic degrees in Pakistan and Australia. He has claimed that factual conclusion was plainly wrong. In his oral submissions, he has pointed to the passages of the Tribunal's reasons set out above to attempt to demonstrate why that alleged error was material to the Tribunal's ultimate conclusion to affirm the delegate's rejection of his application. As I understood his submissions, he argues that the matters in those paragraphs show that the factors for and against his application were so closely balanced that the Tribunal's alleged error was likely to have been material in tipping the balance against him. 9 The problem with accepting this argument is that it is directed to a straightforward factual finding made by the Tribunal. That is to say, a factual finding that does not relate to a mandatory relevant consideration, or to a failure to comply with a statutory condition, or to a failure to afford procedural fairness which affects the valid discharge of the Tribunal's statutory function (see the discussion in Navoto v Minister for Home Affairs [2019] FCA 295 at [31]-[47] per Allsop CJ). Furthermore, Mr Muhammad has not alleged that it is affected by legal unreasonableness in any of its various manifestations (see, for example, the discussion in BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [142]-[145] per Wigney J (in dissent on the outcome, but not affecting this discussion). Hence, it was not an error that was relevantly material to the proper exercise of the Tribunal's functions, or of such a serious nature, that it could be characterised as a jurisdictional error (see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 per Robertson J). It follows that, even assuming the Tribunal's factual finding at [32] was in error, Mr Muhammad has not identified any feature of it that would allow it to be characterised as a jurisdictional error. 10 The primary judge was therefore correct to conclude that Mr Muhammad's short point had no merit. Accordingly, his notice of appeal filed 8 July 2020 must be dismissed with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Reeves.