Batcha v Minister for Immigration

[2016] FCCA 1224

FEDERAL CIRCUIT COURT OF AUSTRALIA

BATCHA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1224

Catchwords:
MIGRATION – Constitutional writs – refusal of student visa – no “exceptional reasons”.

Legislation:

Federal Circuit Court Rules 2001 (Cth), s.44.05(2)(c)

Migration Act 1958 (Cth), s.477(2)

Migration Regulations 1994 (Cth), cl.572.227, 572.231 of Sch.2

Cases cited:
An v Minister for Immigration (2007) 160 FCR 480
Kim v Minister for Immigration & Anor [2008] FMCA 1577
Kim v Minister for Immigration [2009] FCA 161
M64/2015 v Minister for Immigration (2015) 327 ALR 8
MZABP v Minister for Immigration [2015] FCA 1391
Shi & Ors v Minister for Immigration (2015) 231 FCR 354

Applicant: ABDUL HAKKIM ANWAR BATCHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3079 of 2014

Judgment of: Judge Dowdy

Hearing date: 8 February 2016

Delivered at: Sydney

Delivered on: 26 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Newman (solicitor).

Solicitors for the Applicant: Newman & Associates.

Counsel for the Respondent: Ms Krishnan (solicitor).

Solicitors for the Respondent: Australian Government Solicitor.

ORDERS

1. Order pursuant to s.477(2) of the Migration Act 1958 (Cth) that the time for the Applicant to make his application to this Court be extended up to and including 6 November 2014.

2. Dismiss the Further Amended Application filed in Court 8 February 2016 and the Application filed 6 November 2014 and Amended Application filed 7 August 2015.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3079 of 2014

ABDUL HAKKIM ANWAR BATCHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant is a male Indian national aged 33 years of age, having been born on 9 July 1982. 

2. He seeks by his application filed 6 November 2014 that a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of the decision the Migration Review Tribunal) (Tribunal) dated 25 September 2014 be quashed with a writ of mandamus being directed to the Tribunal requiring it to determine the Applicant’s application according to law.  The Tribunal had affirmed the decision of a Delegate (Delegate) of the first respondent (Minister) to refuse to grant to the Applicant a Student (Temporary) (Class TU) visa.

3. That original application was succeeded by an amended application filed on 7 August 2015.

4. However, when the matter was called on for hearing, Mr Newman, who appeared on behalf of the Applicant, informed the Court that no reliance was now to be placed on the original application or the amended application, but that he was seeking leave to file on behalf of the Applicant a further amended application (Further Amended Application). 

5. The Further Amended Application contained two grounds, being as follows:

   1.  The Court should allow an extension of time for the bringing of this application for the reasons that the delay in the initial filing was of just 7 days and that no prejudice to the respondent was suffered and, further, the amended application itself raises important issues.

   2.  The tribunal erred in its jurisdiction and in law when, in considering a claim for a student on-shore visa, it failed to exercise an unconfined but reasoned discretion by rigidly applying a stated departmental policy of doubtful validity, namely, the guidelines as reproduced at Court book 91, and ignoring evidence before the tribunal and contrary to its findings that there was no evidence of a current Confirmation of Enrolment.

6. I granted leave to the Applicant to file in Court the Further Amended Application notwithstanding opposition from the Minister because it was not suggested that if it was filed the Minister would need an adjournment and notice in substance had been given of Ground 2 in the Applicant’s written submissions dated 22 January 2016. 

Extension of Time

1. The Applicant needs to obtain the leave of the Court under s.477(2) of the Migration Act 1958 (Cth) (Migration Act) to extend the 35-day period by seven days. He has complied with s.477(2) of the Migration Act in that an application for an extension order has been made in writing to this Court which specified why he considered that it was necessary in the interests of the administration of justice to extend time being:

   I missed the date due to the misinformation of the time limit for the review, as someone had advised me that I have 28 days plus seven working days.

2. I note at this point that I indicated to Ms Krishnan, who appeared for the Minister, and Mr Newman, that I would approach the issue of whether or not there should be an extension of time in accordance with the two-stage process discussed by Mortimer J in the recent decision of MZABP v Minister for Immigration [2015] FCA 1391. In other words, I indicated that I would first determine whether or not there should be an extension and, for that purpose, attempt to gauge the strength of the Applicant’s case in substance at a reasonably impressionistic level and then, if I decided that leave should be granted, I would give my reasons for granting an extension when I gave my written judgment on the substance of the application.

3. In the result, after hearing submissions, I considered and was satisfied that it was in the interests of the administration of justice to grant an order of extension for the required seven days and indicated at the hearing on 8 February 2016 that I would do so. 

4. The reasons for my granting this extension are as follows:

   a)an extension of seven days is not a very long period;

   b)the Minister did not suggest prejudice;

   c)whilst there was not any particularly impressive sworn explanation for the delay, in the absence of a suggestion of prejudice to the Minister I did not consider that the failure to explain it in greater detail or by the affidavit required by r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) ought to militate against a grant of leave. In this respect, in so far as is necessary, I dispense with that part of r.44.05 which required the Applicant to support his application by affidavit and give further evidence explaining why it was necessary in the interests of the administration of justice for the Court to grant an extension;

   d)I considered that the Applicant’s assertion of a denial of procedural fairness warranted scrutiny by the Court; and

   e)the fact that if leave was not granted the Applicant had no right of appeal to the Federal Court.

5. Accordingly, I propose to order that pursuant to s.477(2) of the Migration Act the Court is satisfied that it is necessary in the interests of the administration of justice to extend the time for the filing of the application made by the Applicant to this Court up to and including 6 November 2014.

Relevant Background

1. The Applicant applied onshore on 2 October 2013 for a Student (Temporary) (Class TU) Vocational Education and Training Sector (subclass 572) visa (Student visa). That application was made in circumstances where his Visitor Visa Subclass FA-600 expired the next day on 3 October 2013. At no other stage has the Applicant ever held a visa under the Migration Act.

2. In support of his application the Applicant enclosed three Confirmation-of-Enrolment documents indicating that for periods commencing in October 2013 and extending to October 2015 he intended to undertake three courses in accounting at Australian Vocational Learning Centre Pty Ltd. 

3. As an Indian citizen, the Applicant was assessed as level 4 for the purposes of the criterion found in cl.572.227 of Sch.2 to the Migration Regulations 1994 (Cth) (Migration Regulations) which, at the time of the decision, required the Applicant to establish exceptional circumstances for the grant of a Subclass 572 visa.

4. On 14 October 2013, the Delegate of the Minister wrote to the Applicant’s agent pointing out that the Applicant had to demonstrate exceptional reasons for the grant of a Student visa onshore, and invited comments from the Applicant concerning any exceptional grounds which he might have.

5. On 7 November 2013, the Applicant’s representative responded, stating that:-

   a)if the Applicant applied offshore he may not be able to secure admission to the course which commenced on 18 October 2013;

   b)due to the short time frame allowed for joining the course it was impracticable for the Applicant to return to his country to apply offshore;

   c)that admission of foreign students and exchange in culture would foster bilateral relations and give rise to economic benefit to Australia; and

   d)that the Applicant is doing business in Malaysia and will return to Malaysia after completion of his course to continue his business.

6. The Delegate then in her Decision Record dated 28 November 2013 refused to grant the Student visa because the reasons provided by the Applicant were not exceptional for the purposes of cl.572.227 of Sch.2 to the Migration Regulations.

7. On 16 December 2013, the Applicant applied to the Tribunal for review of the Delegate’s decision. On 25 September 2014, the Applicant appeared before the Tribunal and said as follows:

   a)he had applied for permanent residence in Malaysia;

   b)his application will promote bilateral trade relations, noting that Australia is in the process of signing a Free Trade Agreement with Malaysia;

   c)his application was submitted onshore due to a situation beyond his control;

   d)the grant of the visa would benefit the Australian education industry and improve business prospects with Malaysia/India;

   e)in Malaysia he has been ‘doing business’ and working at a 7-11 type store;

   f)he is not studying and has no current offer of enrolment; and

   g)the last time he attended for any study was January 2014 and since then has been waiting at home for the outcome of the application, praying and going to the mosque. The Tribunal put to the Applicant that he has been working, which he denied.

8. At the hearing in this Court it was common ground that at the time of decision it had been necessary for the purposes of cl.572.227 of Sch.2 to the Migration Regulations that the Applicant had to establish “exceptional reasons for the grant of a Subclass 572 visa”.

9. It was also common ground at the hearing in this Court that it had been necessary at the time of decision for the Applicant to satisfy cl.572.231 of Sch.2 to the Migration Regulations which provided that:

   The applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is:

   (a) a principal course; and

   (b) of a type that was specified for Subclass 572 visas by the Minister in a legislative  instrument:

   (i)    made under regulation 1.40A; and

   (ii)   in force at the time the application was made.

Tribunal Decision

1. In its Decision Record of 25 September 2014 the Tribunal affirmed the Delegate’s refusal of the Student visa. In short, the Tribunal found that the reasons which the Applicant had given for wanting to study in Australia were not exceptional, but personal to him and related to his own claimed study and career goals. The Tribunal did not accept there was any benefit to Australia or bilateral benefit of any nature or significance. It considered that the Applicant was using the Student visa process to maintain his stay in Australia and it did not accept that the Applicant had any genuine intention to study and that therefore the Applicant did not satisfy cl.572.227 of Sch.2 to the Migration Regulations.

2. The Tribunal also found that cl.572.231 of Sch.2 to the Migration Regulations had not been met by the Applicant because there was no evidence before the Tribunal that the Applicant was enrolled in or had a current offer of enrolment in any applicable course of study. It went on to find that there was no evidence that the Applicant met any other criteria for either a Subclass 576 or Subclass 580 visa, being the remaining subclasses of Class TU.

3. The Tribunal, therefore, affirmed the Delegate’s decision under review not to grant the Applicant a Student (Temporary) (Class TU) visa.

4. I record at this point that paragraph 5 of the Tribunal’s Decision Record seems to be completely inapt and inaccurate, and has probably, I surmise, been the result of cutting and pasting with another decision.  However, the Applicant places no reliance on the contents of paragraph 5 in support of his present application in this Court. 

Attack on Tribunal Decision – Ground 2

1. Mr Newman’s arguments in support of Ground 2 (see [5] above) may be summarised as follows:

   a)Australia is made up of immigrants and is not an elitist society and it could not be the intention of the Australian Parliament that the PAM3 Student Visa Assessment Guideline (PAM3) should be applied rigidly, but the Tribunal had so applied it here against the Applicant;

   b)the Minister had no warrant or remit to make a “policy” like PAM3 for student visas because it was elitist and the only persons who could come within its terms were the children of the elite;

   c)the fact that the Applicant admitted to the Tribunal that he was not enrolled in a course of study and had no current offer of enrolment was caused by the system that is in operation whereby he could not study in Australia because he did not have a student visa and so his inability to be able to satisfy cl.572.231 of Sch.2 to the Migration Regulations should not have been held against him.

Consideration

1. There is a large body of law to the effect that the Minister is entitled to lay down policies for the guidance of his or her delegates in making decisions under the Migration Act. It is sufficient in the first instance to refer to the recent decision of the High Court of Australia in Plaintiff M64/2015 v Minister for Immigration (2015) 327 ALR 8 which, in fact, concerned the application of PAM3.

2. In the plurality judgment of French CJ, Bell, Keane and Gordon JJ at (supra) 21 ([54]) the following was said:

   54.    Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike.²¹ In particular, policies or guidelines may help to promote consistency in “high volume decision-making”,²² such as the determination of applications for Subclass 202 visas. Thus in Re Drake and Minister for Immigration and Ethnic Affairs (No 2),²³ Brennan J, as President of the Administrative Appeals Tribunal, said that “[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable” because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by “diminishing the importance of individual predilection” and “the inconsistencies which might otherwise appear in a series of decisions”.²⁴ The subjectivity of the evaluation by a decision-maker in a case such as the present highlights the importance of guidelines. The importance of avoiding individual predilection and inconsistency in making choices between a large number of generally qualified candidates by the application of the open-textured criterion of “compelling reasons for giving special consideration” is readily apparent.

3. At (supra) 24-25 ([68]-[69]) Gageler J said:

   68.    It is open to the Minister in the exercise of non-statutory executive power to lay down a policy for the guidance of his or her delegates in making those determinations. Indeed, it is inconceivable that the Minister would not do so. In Nevistic v Minister for Immigration and Ethnic Affairs,³⁵ Deane J emphasised the importance of the adoption and consistent application of policy to the avoidance of substantial injustice in administrative decision-making, which involves “competition or correlativity between rights, advantages, obligations and disadvantages”. Each applicant must always be entitled to have his or her application for the exercise of a decision-making power determined on its merits. But the merits of an application cannot always adequately be considered by reference to the circumstances of the applicant alone.

   69.    Where, as here, the statutory question is whether the decision-maker should be persuaded that there are compelling reasons for giving special consideration to granting one of a finite number of permanent visas to a particular applicant, the correct or preferable decision in the individual case cannot be divorced from the correct or preferable decision across the range of cases in which an exercise of that decision-making power can be expected to be sought. Blinkered and individualised decision-making would be a recipe for maladministration.

4. I note that at [2.2] of the Readers’ Guide to PAM3 the following is stated:

   PAM3 instructions are statements of departmental policy and procedure.

   Being statements of departmental policy, PAM3 instructions must be considered and given due weight by ministerial delegates (decision-makers) in deciding applications and exercising associated decision-making powers.  Policy must not, however, be regarded as inflexible and decision-makers must not give it the same force as law.

5. The specific nature of PAM3 in the context of an argument that it constrained the meaning of exceptional circumstances was stated by Besanko J in Shi and Others v Minister for Immigration (2015) 231 FCR 354 at 361 ([30]–[31]):

   30. The first ground of appeal is that the judge erred in not holding that the Tribunal had committed a jurisdictional error by applying the criteria in the policy in PAM3 in a way that precluded a proper consideration of whether there were exceptional circumstances within the Regulations. As I understood it, the appellant’s argument was not that the Tribunal could not have regard to the policy in PAM3, but that the Tribunal erred in considering itself bound to conclude that matters not considered exceptional circumstances under the policy could not be considered exceptional circumstances under the Regulations.

   31. PAM3 does not constitute directions by the Minister under s 499(1) of the Migration Act 1958 (Cth). As Gray J said in El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 at [45], PAM3 is not a binding document, and it is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Regulations.

6. I further note that [89.1] of that part of PAM3 which relates to the assessment of on shore Student visas deals with exceptional reasons for the grant of a visa.  It is explicitly stated there that under policy, exceptional reasons may include, but are not limited to certain examples which are then given and which include benefit to Australia by improving bilateral relations or providing significant economic benefits to Australia.  A series of other examples of potentially exceptional circumstances are then set out.

7. Turning now to the Decision Record of the Tribunal, I do not consider that there is any proper basis for a suggestion that the Tribunal applied PAM3 with any illegitimate rigidity either at all or such as to constitute jurisdictional error.

8. At paragraph 11 of its Decision Record the Tribunal correctly noted that the term “exceptional reasons” is not defined in the Migration Act or the Migration Regulations.

9. It is convenient to expose the Tribunal’s view of “exceptional reasons” by reproducing paragraphs 12 to 14 of its Decision Record which are in the following terms:

   12.An applicant subject to cl.572.227 must establish that there are ‘exceptional reasons for the grant of [the particular subclass of] visa’. ‘Exceptional reasons’ are not intended to be found by deciding whether the visa applicant has the ‘normal’ characteristics of an applicant who is not subject to the restriction in the criterion, nor by deciding whether he or she departs from the ‘normal’ characteristics of the group who is subject to the restriction. When determining whether ‘exceptional reasons’ have been established, the decision-maker must assume that the visa applicant ‘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’. Beyond such reasons being capable of being described as ‘“exceptional’ in ‘ordinary parlance’, there is no prescriptive definition of the term. The decision-maker has ‘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’. Kim v MIAC [2008] FMCA 1577 (Smith FM, 27 November 2008) at [29], undisturbed on appeal – Kim v MIAC [2009] FCA 161 (Buchanan J, 26 February 2009).

   13.Under departmental guidelines (PAM3) ‘exceptional reasons’ may include but are not limited to situations where:

   there is a ‘benefit to Australia’ (for example where the ‘visa grant would improve bilateral relations or provide significant economic benefits to Australia’)

   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 her or his current course or undertake further studies

   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

   the applicant previously held a student visa and now holds a Subclass 676 (visitor) visa granted under s.351 (Ministerial intervention).

   14.These guidelines are not binding upon the Tribunal but may be a relevant consideration when determining what constitutes “exceptional reasons” in the individual circumstances.

1. Nothing in this consideration by the Tribunal of what constitutes “exceptional reasons” establishes jurisdictional error.  The Tribunal was obviously conversant with the cases of Kim & Anor v Minister for Immigration [2008] FMCA 1577 per Smith FM and on appeal therefrom of Kim v Minister for Immigration [2009] FCA 161 per Buchanan J. Both Smith FM and Buchanan J, in their respective judgments, referred to “exceptional reasons” meaning reasons that are unusual or out of the ordinary. That accords with the view of Lindgren J in An & Ors v Minister for Immigration (2007) 160 FCR 480 at 482 ([7]) that:

   7. The word “exceptional” is a simple non-technical word. It means “unusual” or “out of the ordinary” and is used in that sense in Sch 2 … of the Migration Regulations 1994 (Cth) (the Regulations).

   and the view in the same case of Emmett J at 496 ([82]) that the word exceptional should be understood as meaning unusual or atypical.

2. Accordingly, I reject Mr Newman’s attack in support of Ground 2 summarised at [25(a)] and [25(b)] above.

3. That leaves Mr Newman’s argument in support of Ground 2 summarised at [25(c)] above. In my view that argument also fails. Under cl.572.231 of Sch.2 to the Migration Regulations the Applicant had to establish that he was either enrolled in or the subject of a current offer of enrolment in a course of study (see [20] above).

4. The simple fact of the matter is that the Applicant could establish neither of the alternatives comprised in cl.572.231 of Sch.2 to the Migration Regulations. The only tangible evidence as to why he could not comply with either of the alternatives was given by the Applicant himself to the Tribunal at the hearing on 25 September 2014 where at paragraphs 19 and 21 of the Decision Record the Applicant is recorded as having said to the Tribunal:

   19.    … He would like to study accounting. He said he is not studying now and has no current offer of enrolment. He claimed that he had studied at a college in October 2013 but then hurt his hand in an accident and so couldn’t study for 2 weeks. He showed the Tribunal photos of his injured fingers. The Principal of his college told him there “was no limitation on his study” and he could study. Despite this he didn’t, as they were “pressing me to pay fees” and he thought to commence in a later intake. The last time he attended for any study was in January 2014.

   …

   21.    The applicant said he had a loan to study in Australia though it was “temporarily stopped” but could be reactivated once he was granted his visa. It was put to him this was irrelevant as he did not meet the exceptional reasons for the grant of a visa, and further he did not meet the requirement that he needed to be produce evidence of current study and enrolment.

5. In these circumstances the Applicant, at the time of the decision, was unable to satisfy cl.572.231 of Sch.2 to the Migration Regulations and the Tribunal committed no jurisdictional error in so finding.

Conclusion

1. In my view the Applicant has failed to establish any jurisdictional error by the Tribunal and his application to this Court must be dismissed with costs in favour of the Minister.  I reserve for later consideration the quantum of such costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:  26 May 2016