Baig v Minister for Immigration
[2016] FCCA 570
•16 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAIG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 570 |
| Catchwords: MIGRATION – Review of decision of former Migration Review Tribunal – refusal of temporary student visas – on-shore application requiring exceptional reasons which could not be demonstrated – independent basis in any event to sustain the Tribunal decision |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Kabir v Minister for Immigration & Anor (2010) 118 ALD 513 |
| First Applicant: | SARA FIRDAUS BAIG |
| Second Applicant: | ABDUL HAMEED MOHAMMED |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2964 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2016 |
REPRESENTATION
The Second Applicant appeared in person
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The name of the second respondent is amended to “Administrative Appeals Tribunal”.
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,825 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2964 of 2014
| SARA FIRDAUS BAIG |
First Applicant
| ABDUL HAMEED MOHAMMED |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 30 September 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants student temporary (class TU) visas.
There are two applicants who are a husband and wife. The primary claims were made by the first applicant, Ms Baig. By the time this matter reached trial before me today, Ms Baig had left Australia and returned to India. She was granted a bridging visa B for that travel, valid for three months. That period has now expired. It follows that Ms Baig has no entitlement to return to Australia. Her trip to India was necessitated by her pregnancy and her need for family support in relation to that pregnancy. I understand from her husband, the second applicant, Mr Mohammed, that she still intends to return to Australia if possible.
Mr Mohammed remains in Australia and pursues the judicial review application on behalf of himself and his wife.
Background facts relating to the matter are otherwise dealt with in the Minister’s outline of legal submissions filed on 9 March 2016.
The applicants are citizens of India. On 23 January 2014, they applied for visas to undertake study in Australia.[1]
[1] Court Book, 1 (CB)
At the time she lodged the visa application, Ms Baig was in Australia on a VC 485 (Temporary Graduate) visa.[2] The course in respect of which she applied for the visa currently in issue (an Advanced Diploma of Management)[3] was specified as a type of course for a Subclass 572 (Vocational Education and Training Sector) visa.
[2] CB 13
[3] CB 23
It is common ground that clause 572.227 of the Migration Regulation 1994 (Cth) (Regulation) applied to Ms Baig:
a)she applied for the visa in Australia;[4]
b)she was subject to assessment level 4 for the relevant course of study;[5] and
c)at the time of her application, she met the requirements of clause 572.211 as the holder of a Subclass 485 visa.[6]
[4] Migration Regulations 1994 (Cth) cl 572.227(a)
[5] Migration Regulations 1994 (Cth) cl 572.227(b)
[6] Migration Regulations 1994 (Cth) cl 527.227(c)(iii)
Satisfaction of clause 572.227 required Ms Baig to “establish exceptional reasons for the grant of the visa”. As the Tribunal noted in its decision,[7] the term “exceptional reasons” is not defined in the Regulations, or in the Migration Act 1958 (Cth) (the Migration Act). In Kim v Minister for Immigration [2008] FMCA 1577, Smith FM considered the proper approach to assessment of whether an applicant has established exceptional reasons; his Honour’s reasoning in that regard was not challenged on appeal.[8] Federal Magistrate Smith stated:[9]
[T]he decision-maker is required to assume that a visa applicant caught by the criterion should not be granted the visa unless some reasons can be positively identified which justify, in the mind of the decision-maker, the grant of the visa. The reasons must be capable of being described as ‘exceptional reasons’ in ordinary parlance. Beyond this, it is impossible for the Court to be generally prescriptive as to what these reasons might be, or must be, as a matter of law. In effect, once it is concluded that the Regulations do not define the relevant circumstances for finding ‘exceptional reasons’ under cl.573.227 by providing a particular focus or comparison or subject matter, the criterion should be allowed to operate so that a decision-maker is given a nearly unconfined discretion to address the particular circumstances of the case, and to consider whether the applicant should be made an exception to a ban on the grant of the visa in Australia.
[7] CB 133[12]
[8] See Kim v Minister for Immigration & Anor [2009] FCA 161
[9] Kim v Minister for Immigration & Anor [2008] FMCA 1577 [30]
The Tribunal in the present case also referred to the departmental guidelines, known as “PAM3”, which described “exceptional reasons” as including but not limited to situations where;[10]
a)there is a “benefit to Australia” (for example where the “visa grant would improve bilateral relations or provide significant economic benefits to Australia”);
b)the applicant is a dependent of a departing temporary resident and has been studying in Australia for at least one year and wishes to complete his or her current course or undertake further studies;
c)the applicant held a Class TU visa in Australia when they were granted a specified temporary visa and now wishes to undertake further study or continue their course of study;
d)the applicant previously held a student visa and now holds a Subclass 676 (visitor) visa granted under s 361 (Ministerial intervention).
[10] CB 133 [14]
According to the decision of the Minister’s delegate,[11] Ms Baig was requested to provide additional information, namely the “exceptional reasons” she advanced for the grant of her student visa in Australia. On 3 February 2014, Ms Baig submitted the following response:
After doing my Bachelors in Technology from overseas with a theoretical & practical knowledge of information technology, I felt I was some were (sic) lacking some management skills, rather it would be a business management or a project management.
By taking this course I believe that it will help me redefine with technical and managerial skills with which I may be more competent to seek a position in professional industry arena. Information technology with a management skills is definitely an ADD-on always.
[11] CB 65
By letter dated 26 February 2014, the delegate notified Ms Baig that her visa application had been refused.[12] The delegate was not satisfied that she had established exceptional reasons for the purposes of clause 572.227 of Schedule 2 of the Regulations.[13] The delegate further found that as Ms Baig did not meet that clause, Mr Mohammed did not satisfy clause 572.322.
[12] CB 59
[13] CB 65
On 11 March 2014, Ms Baig lodged an application for review of the delegate’s decision.[14] On 25 September 2014, the applicants attended a hearing before the Tribunal.[15]
[14] CB 74
[15] CB 125
According to the Tribunal’s summary of Ms Baig’s evidence in relation to exceptional reasons at the hearing, Ms Baig stated that she was not currently studying, as the Certificate of Enrolment on the basis of which she had applied for the visa had been cancelled when she could not provide evidence of a valid student visa. Ms Baig also stated that she wanted to study to improve her skills and management skills overseas, so as to work in a business that may be set up, referring also to a retail food store that her husband’s family owned and in relation to which she desired to do more in future.[16] In addition, Ms Baig explained that when she and her husband had applied for a permanent visa they were 10 points short of the total required; and a migration agent had told them that one way to try and increase the points was for Ms Baig to study in Australia.[17]
[16] CB 134 [18]
[17] CB 134 [19]
After referring to the above evidence, the Tribunal noted Ms Baig’s prior qualification from the University of Hyderabad, her IELTS test results, and her husband’s part-time position with Optus, which he had held for 2.5 years.[18] It then stated:[19]
I have carefully considered the evidence and circumstances of the applicants. The circumstances as raised by Ms Baig are not exceptional, they are personal to her. Whilst I appreciate she and her husband obtained advice on what to do, and how to increase her husband’s potential points, this is clearly an indication that the study proposal was not genuinely for the applicant to study in Australia but a mechanism whereby this would improve her, and her husband’s, opportunity for permanent residence in Australia. The PAM3 guidelines do not cover the applicant’s situation.
I do not accept that the situation as detailed by the applicant, including the increase in her skills, the desire to increase her points for another type of visa, and the potential of working in the family business in India, are exceptional reasons.
Additionally the applicant has not undertaken any study in Australia apart from that associated with her IELTS test. She could have studied if she wished to and is not prevented from doing so by any visa she held. She has no evidence of any current enrolment in a course as required.
[18] CB 134 [20]
[19] CB 134–135 [21]–[23]
The absence of any evidence of current enrolment, or an offer of enrolment, created a further difficulty for Ms Baig. Clause 572.231 of Schedule 2 of the Regulations requires Ms Baig to be enrolled in, or the subject of a current offer of enrolment in, a course of study that is a principal course. The Tribunal found that Ms Baig also did not satisfy this criterion.[20]
[20] CB 135 [24]
The Present Proceedings
These proceedings began with a show cause application filed on 24 October 2014. At that time the applicants were legally represented. The application contains two particularised grounds;
1. The second respondent has made jurisdictional errors by misconstruing “exceptional reasons: in cl. 572.227
Particulars
(a)The second respondent excluded the applicant’s personal circumstances for consideration. “the circumstances raised by Ms Baig was not exceptional, they are personal to her” (Tribunal decision record at 21).
(b) The second respondent refused to consider the applicant’s circumstances because they are not covered in the first respondent’s PAM 3 policy guidelines.
(c) In Kim v Minister for Imigration & Anor [2008] FMCA 1577 (27 November 2008) at 30 in relation to what is the meaning of “exceptional reasons” Smith FM stated:
Rather, the decision-maker is required to assume that a visa applicant caught by the criterion should not be granted the visa unless some reasons can be positively identified which justify, in the mind of the decision-maker, the grant of the visa. The reasons must be capable of being described as ‘exceptional reasons’ in the ordinary parlance. Beyond this, it is impossible for the Court to be generally prescriptive as to what these reasons might be, or must be, as a matter of law. In effect, once it is concluded that the Regulations do not define the relevant circumstances for finding ‘exceptional reasons’ under cl.573.227 by providing a particular focus or comparison or subject matter, the criterion should be allowed to operate so that a decision-make is given a nearly unconfined discretion to address the particular circumstances of the case, and to consider whether the applicant should be made an exception to the ban on the grant of the visa in Australia.
(d) Therefore, it is an error to exclude the circumstances either personal or not covered by the policy guidelines PAM 3.
2.In determining whether the reasons given by the applicant are exceptional or not as referred to in cl.572.227, the second respondent has acted unreasonably and irrationally in the Wednesbury Corporation sense.
Particulars
(a)The applicant said that her study in Australia will assist her husband to gain more points in skills migration and they can gain Australian permanent residents, and an opportunity to gain an Australian PR is very important to them. The second respondent said that the reasons are personal.
(b)The second respondent said that she is engaged in genuine studies, because the purpose of her study is to increase their opportunity to gain Australian permanent residency.
(errors in original)
The applicants’ solicitors withdrew from the record in accordance with the Rules of this Court on 14 December 2015.
I have before me as evidence the court book filed on 17 December 2014. Only the Minister prepared written submissions in accordance with procedural orders made by me by consent on 26 November 2014. The applicants have also not taken up the opportunity afforded to them in those orders to file and serve an amended application or additional evidence. I invited oral submissions from Mr Mohammed, today. He explained the circumstances of his wife’s return to India and the difficult circumstance they both face due to their separation.
Mr Mohammed explained that he and his wife sought to better themselves in Australia by pursuing studies in order to support planned business activities in India. Mr Mohammed also explained that he had provisionally obtained loan finance for the purposes of the planned studies, but the bank loan was dependent on the grant of a visa which was refused. Mr Mohammed was not, however, able to advance a submission advancing the grounds of review set out in the application. Those are, of course, legal issues and he is at a disadvantage following the withdrawal of his lawyers.
There were two issues before the Tribunal. The first was whether the applicants were subject to the requirement to demonstrate exceptional reasons for the grant of the visa. The Tribunal determined at [10] of its reasons,[21] that they were so subject;
The ‘exceptional reasons’ for grant criterion applies where: the visa application was made in Australia; the applicant is subject to assessment levels 2,3,4 or 5, at the time of application; the applicant was either; the holder of a specified temporary visa; or if the applicant did not hold a substantive visa, immediately before ceasing to hold a substantive visa, the applicant held a specified visa.
[21] CB 133
Counsel for the Minister conceded that there appears to be a factual error in that paragraph by reference to multiple assessment levels. It appears that the Tribunal was referring to an out of date version of the relevant Regulations. Counsel submitted, and I accept, that the correct version of the Regulations, as at 14 December 2013, has the same outcome as was found by the delegate. It follows that the factual error made by the Tribunal at [10] of its reasons, was an error within jurisdiction.
The Minister’s submissions address the arguments raised in relation to the Tribunal’s finding that exceptional reasons had not been demonstrated. I agree with those submissions.
The application contains two grounds of review. By the first ground, Ms Baig contends that in finding that the circumstances that Ms Baig raised were not exceptional but were personal to her, and were not covered by the PAM3, the Tribunal misconstrued the “exceptional reasons” test.
As to the first of those matters, read fairly and as a whole it is apparent from the Tribunal’s reasons that the Tribunal did not dismiss the reasons that Ms Baig advanced simply because they were “personal” to her. The material following the Tribunal’s statement in this regard demonstrates that the Tribunal was aware of, and considered, each of the reasons that Ms Baig advanced, leading to the conclusion that they could not properly be characterised as exceptional, in circumstances where Ms Baig could have, but had not, sought to undertake any study in the period since she was notified of the visa refusal.[22]
[22] CB 134 [22]
In describing Ms Baig’s reasons as “personal”, the Tribunal likely meant no more than that the reasons Ms Baig advanced did not have a broader benefit to Australia, that being one of the circumstances to which the PAM3 refers.[23] The absence of such benefit, however, did not conclude the Tribunal’s inquiry, nor did the fact that the PAM3 did not cover the applicant’s situation, as is apparent from the reasoning which follows that statement.[24] The Tribunal had, of course, previously noted that the circumstances identified in the PAM3 were not exhaustive.[25]
[23] see [9] above
[24] CB 135 [23]
[25] CB 133 [14]
That was also an issue I considered in Liu v Minister for Immigration & Anor [2015] FCCA 2957 at [29] and [30]. I take the same view here. The Tribunal was not excluding the possibility that exceptional reasons may be demonstrated by personal circumstances.
The applicant next contends that the Tribunal acted unreasonably or irrationally in the Wednesbury sense. The basis of the alleged error is not entirely clear, but it would appear to stem, again, from the Tribunal’s statement that the reasons the applicant advanced were personal to her, in circumstances where she was motivated by a desire to obtain Australian permanent residency for herself and her husband.
The Tribunal had regard to the desire of the applicants to obtain permanent residency, and the advice they had received that study might be a way to achieve that goal. However, in its view, such motivation did not fall within the rubric of “exceptional reasons”. Instead, the Tribunal took it as an indication that the study proposal was a mechanism to improve the prospects of obtaining permanent residency. The Tribunal was fortified in this conclusion by the fact that the applicant had not undertaken any study when she was in Australia.[26]
[26] CB 135 [23]
A court “should be slow, although not unwilling, to interfere in an appropriate case” on the basis of illogicality or irrationality.[27] The relevant question is:[28]
…whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[27] Minister for Immigration and Citizenship v SZMDS (2011) 240 CLR 611 at [131] (Crennan and Bell JJ)
[28] Minister for Immigration and Citizenship v SZMDS (2011) 240 CLR 611 at [131] (Crennan and Bell JJ); see also at [40] (Gummow and Kiefel JJ)
For the reasons outlined above, the Tribunal’s conclusion in the present case is not one as to which logical or rational or reasonable minds would reach only one result, being the opposite conclusion to that which the Tribunal reached. It was the product of an evaluative judgement, as to which reasonable minds might differ. The fact that the Tribunal concluded that Ms Baig’s reasons were not exceptional does not make the decision illogical or irrational or unreasonable.
To the extent that the legal ground of unreasonableness is applicable in the present context (it not being apparent that there is an exercise of discretion which might be conditioned by it), the requirement “is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker”.[29] It is directed to decisions which lack an “evident and intelligible justification”.[30] For the reasons outlined above, the Tribunal’s decision was not of that character.
[29] Minister for Immigration and Border Protection v Li (2013) 249 CLR 332 at [30] (French CJ).
[30] Minister for Immigration and Border Protection v Li (2013) 249 CLR 332 [76] (Hayne, Kiefel and Bell JJ)
The Minister also submits and I accept, that there was an independent reason sustaining the Tribunal decision in that the applicants could not demonstrate a current enrolment in an approved course of study which was also a visa requirement. I agree with the Minister’s submissions.
Thus, even if I were wrong in finding that the Tribunal had not erred in its approach to clause 572.227 of Schedule 2 of the Regulations, the Tribunal determined that the applicant had also failed to meet the criterion in clause 572.231 of Schedule 2. This non-compliance on the part of Ms Baig, which is not challenged, constitutes an independent basis for refusing to grant Ms Baig a visa.
In VBAP of 2002 v Minister for Immigration [2005] FCA 965, North J accepted that the Refugee Review Tribunal (RRT) had breached s. 424A of the Migration Act, but observed that there were four independent bases for the RRT’s decision in the case, and that the breach of s. 424A would impugn only one of those bases.[31] Accordingly, his Honour dismissed the appeal from the decision of this Court to dismiss the application for review of the RRT’s decision. Similarly, in Kabir v Minister for Immigration (2010) 118 ALD 513, Siopis J stated that, although the Tribunal had made a jurisdictional error in that case, the circumstances were such that it could be concluded that even if there had been no jurisdictional error, the Tribunal would have been obliged to refuse the application.[32] His Honour therefore held that no error had been established in relation to the Federal Magistrate’s exercise of discretion to withhold relief.[33]
[31] VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965at [31]
[32] Kabir v Minister for Immigration and Citizenship (2010) 118 ALD 513 at [52]
[33] Kabir v Minister for Immigration and Citizenship (2010) 118 ALD 513 at [55]
On the basis of those authorities, I accept that the Tribunal’s conclusion as to clause 572.231 of Schedule 2, which the applicants do not challenge, would render futile any relief that the Court might have considered granting had it found error in the Tribunal’s approach to clause 572.227.
The applicants are unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
Accordingly, I will order that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied at the time of the filing of the application. Mr Mohammed expressed surprise as he was not previously aware that he was exposed to an adverse costs order. That may well be so but it was the responsibility of his former solicitors to inform him and his wife of the risks associated with the litigation. Ignorance of the general principle that costs follow the event, is not to my mind a reason for the Court to refrain from making a costs order.
I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,825 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 23 March 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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