Arora v Minister for Immigration

[2016] FCCA 3344

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARORA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3344

Catchwords:
MIGRATION – Student visa – applicant failed to show “exceptional reasons” to Tribunal – no “exceptional reasons” shown on this application for judicial review – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cl.572.227 of sch.2

Cases cited:

AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68

Kim v Minister for Immigration and Citizenship [2009] FCA 161

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: SOURABH ARORA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 305 of 2016

Judgment of: Judge Wilson

Hearing date: 8 December 2016

Date of Last Submission: 8 December 2016

Delivered at: Melbourne

Delivered on: 8 December 2016

REPRESENTATION

Applicant in person

Solicitor for the 
 First Respondent: Mr Young of Sparke Helmore

ORDERS

1. The application filed 18 February 2016 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 305 of 2016

SOURABH ARORA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

Introduction

1. On 6 July 2016, Registrar Buljan of this Court ordered this proceeding to go forward on a show cause basis pursuant to r.44.12 of the

   
   Federal Circuit Court Rules 2001 (Cth)

   . 

2. On a show cause hearing, the judge has the power, among others,

   
   

   to dismiss the whole proceeding if satisfied that an arguable case is not raised by the applicant.

3. According to the High Court decision of Spencer v Commonwealth of Australia[1] and the decision of the Full Court of the Federal Court in AMF15 v Minister for Immigration and Border Protection,[2] the power of summary dismissal of a case is not to be exercised lightly. I have applied the principle in those cases to the task that faces me in this case.

   [1] (2010) 241 CLR 118.

   [2] [2016] FCAFC 68.

4. In my judgment, the applicant has not raised an arguable case in this proceeding, with the consequence that I dismiss this case for the reasons that follow.

Background

1. The applicant is an Indian national. While in Australia as the holder of a Temporary Business (subclass 457) visa, he applied for a

   
   

   Student (Temporary) (Class TU 572) visa on 26 May 2015.[3] At the date of his visa application, cl.572.227 of sch.2 of the

   
   Migration Regulations

   1994 (Cth) (“the Regulations”) applied, requiring the applicant to demonstrate the existence of exceptional reasons for the grant of a visa. The phrase “exceptional reasons” was considered by Buchanan J of the Federal Court of Australia in Kim v Minister for Immigration and Citizenship[4] (“Kim”) to mean reasons that are unusual or out of the ordinary. The Administrative Appeals Tribunal (“the Tribunal”) did not regard the reasons given by the applicant as being out of the ordinary or unusual in the way the phrase “exceptional reasons” is to be understood.

   [3] Court Book filed 7 July 2016 at pp.1-22.

   [4] [2009] FCA 161.

2. Nor do I.

3. On 29 May 2015, the Department wrote to the applicant requesting information in support of the visa application and it specifically invited the applicant to provide a statement that addressed his exceptional reasons for the grant of a visa.[5] Then followed a collection of exchanges between the Department and the applicant. Importantly,

   
   

   in none of those exchanges did the applicant put forward information in the nature of exceptional reasons. To this day, the applicant has not put forward any material that addresses the notion of exceptional reasons.

   [5] Court Book filed 7 July 2016 at pp.41-46.

4. On 2 July 2015, the delegate for the Minister refused the visa that the applicant sought.[6] On 16 July 2015, the applicant applied

   
   

   to the Tribunal for the review of the delegate’s decision.[7] On

   
   

   12 January 2016, the Tribunal invited the applicant to appear before it to give evidence and make submissions on 28 January 2016,[8] which the applicant did. On 15 February 2016, the Tribunal affirmed the delegate’s decision.[9] As a result, the Tribunal refused to interfere with the decision to refuse the applicant the visa.

   [6] Court Book filed 7 July 2016 at pp.59-62.

   [7] Court Book filed 7 July 2016 at pp.63-73.

   [8] Court Book filed 7 July 2016 at pp.77-79.

   [9] Court Book filed 7 July 2016 at pp.87-92.

Before this Court

1. The applicant applied to this Court contending that the Tribunal made a jurisdictional error.[10] He relied on three grounds, all of which recited incantations that might have illuminated (if proved) the existence of jurisdictional error but none of which was supported by particulars, explanation, elaboration or content. The grounds asserted were –

   [10] Application filed 18 February 2016.

   1.  MRT took account of irrelevant considerations

   2.  MRT erred at law

   3.  MRT failed to take account of relevant consideration[11]

   [11] Application filed 18 February 2016 at p.3.

2. The Tribunal dealt with this applicant’s application for merits review in its capacity as the Administrative Appeals Tribunal, not the

   
   

   Migration Review Tribunal, as the applicant’s grounds of review indicated. When filing his initiating application to commence this judicial review application before me, the applicant relied on his own affidavit in which he deposed that –

   1.  MRT has handed its decision on 15/02/2016

   2.  The decision is attached to the affidavit

   3.  The MRT erred at law[12] 

   [12] Affidavit of Sourabh Arora filed 18 February 2016.

3. Again, no details were given about the so-called errors of law.

Consideration

1. In my judgment, the Tribunal made no error of law. To the contrary,

   
   

   the Tribunal’s decision was correct in law. The Tribunal recited that –

   a)the application was made on-shore while the applicant held a subclass 457 visa; 

   b)while holding an Indian passport, the applicant intended to study a vocational course in marketing, thereby attracting the operation of subclause 572 at the specified assessment level 2; 

   c)it rejected the applicant’s assertions of ignorance about the visa criteria or that he received inadequate or erroneous advice; and

   d)it rejected the applicant’s travelling off-shore as constituting “exceptional reasons”.

2. The Tribunal found the applicant did not meet cl.572.227 of sch.2 of the Regulations. I agree with that conclusion.

3. Today, the applicant said he did not believe the Tribunal did anything wrong.

4. The Minister relied on the wrong authority in his written submissions in this case.[13] The correct case for an interpretation of “exceptional reasons” is Buchanan J’s decision in Kim, not the decision of a magistrate to which the Minister referred.

   [13] First Respondent’s Written Submissions filed 24 August 2016.

5. No arguable case was raised in this proceeding. The Registrar quite properly determined that this case should proceed as a show cause hearing. I have held that it had no merit whatsoever. Today,

   
   

   the applicant told me “a visa could be good for me”. Undoubtedly that is right. However, such a comment does not demonstrate the existence of jurisdictional error.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 22 December 2016