Mohammed v Minister for Immigration and Border Protection [2017] FCA 506

Mohammed v Minister for Immigration and Border Protection [2017] FCA 506

Leave to appeal was refused because the applicant did not establish sufficient doubt as to the correctness of the Federal Circuit Court's decision or substantial injustice if leave were refused. The proposed grounds did not identify jurisdictional error, largely sought impermissible merits review, the Tribunal had considered the relevant genuine temporary entrant matters including Direction No. 53, there was no evidence of denial of procedural fairness, ss 424A and 424AA did not apply to the review, and no breach of ss 359A or 359AA was shown.

Jurisdiction
Australia
Judgment Date
11 May 2017
Procedural Posture
Migration Judicial Review; Application for Leave to Appeal / Federal Court Application for Leave to Appeal From Interlocutory Federal Circuit Court Orders Dismissing an Application for Judicial Review Pursuant to R 44.12(1)(a) of the Federal Circuit Court Rules 2001 (cth)
Outcome
Application for leave to appeal dismissed.
Legal Topics
['student Visa' 'genuine Temporary Entrant Criterion' 'jurisdictional Error' 'procedural Fairness' 'leave to Appeal' 'impermissible Merits Review' 'tribunal Review']
['administrative Law' 'migration Law'] ['student Visa' 'genuine Temporary Entrant Criterion' 'jurisdictional Error' 'procedural Fairness' 'leave to Appeal' 'impermissible Merits Review' 'tribunal Review']

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Procedural Posture

Migration Judicial Review; Application for Leave to Appeal / Federal Court Application for Leave to Appeal From Interlocutory Federal Circuit Court Orders Dismissing an Application for Judicial Review Pursuant to R 44.12(1)(a) of the Federal Circuit Court Rules 2001 (cth)

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from the Federal Circuit Court's interlocutory dismissal of the judicial review application." "Whether the primary judge erred in failing to find jurisdictional error by the Tribunal concerning the genuine temporary entrant criterion, Direction No. 53, the value of the applicant's proposed course and procedural fairness." 'Whether the Tribunal failed to comply with ss 424A or 424AA, or alternatively ss 359A or 359AA, of the Migration Act 1958 (Cth).' "Whether the applicant's grounds sought impermissible merits review rather than identifying jurisdictional error."]

Ratio Decidendi

Leave to appeal was refused because the applicant did not establish sufficient doubt as to the correctness of the Federal Circuit Court's decision or substantial injustice if leave were refused. The proposed grounds did not identify jurisdictional error, largely sought impermissible merits review, the Tribunal had considered the relevant genuine temporary entrant matters including Direction No. 53, there was no evidence of denial of procedural fairness, ss 424A and 424AA did not apply to the review, and no breach of ss 359A or 359AA was shown.

Court Disposition

Application for leave to appeal dismissed.

Orders

  • ['The application for leave to appeal filed on 12 December 2016 be dismissed.' "The applicant pay the first respondent's costs as agreed or taxed."]