Ghotra v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 317
•13 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ghotra v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 317
File number(s): SYG 3084 of 2019 Judgment of: JUDGE GIVEN Date of judgment: 13 February 2025 Catchwords: MIGRATION – Whether Tribunal erred by misconstruing the term ‘exceptional reasons’ – where applicant twice foreshadowed discontinuance of proceedings and sought multiple adjournments Legislation: Migration Act 1958 (Cth) s 375A
Migration Regulations 1994 (Cth) cl 572.227
Cases cited: Arora v the Minister for Immigration and Border Protection [2017] FCA 484
Hoang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 695
Kim v Minister for Immigration and Citizenship [2008] FMCA 1577
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of hearing: 13 February 2025 Counsel for the Applicant: In person Solicitor for the Respondents: Mr Z McCaughan, Mills Oakley Lawyers ORDERS
SYG 3084 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DILPREET SINGH GHOTRA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
13 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 26 November 2019 is dismissed.
3.The applicant must pay the first respondent’s costs and disbursements of, and incidental to the application, fixed in the amount of $5,400.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until he date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed on 26 November 2019, the applicant commenced these proceedings seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 29 October 2019, which affirmed a decision of a delegate of the first respondent (delegate) to refuse to grant him a Student Temporary (Class TU) visa (visa).
BACKGROUND
The background to the proceedings is derived from the written submissions of the first respondent, but does not appear to be in dispute.
The applicant is a male citizen of India who arrived in Australia in August 2014, as the holder of a Subclass 600 Tourist visa (CB 58 to 59).
On 2 April 2015, the applicant applied for the visa on the basis of his enrolment in a Diploma of Management (CB 1 to 37).
On 28 May 2016, the delegate refused to grant the visa because the applicant had not established exceptional reasons for its grant as required by cl 572.227 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 58 to 62).
On 11 June 2015, the applicant applied to the (then) Migration Review Tribunal for review of the delegate’s decision (CB 63 to 74).
The applicant appeared before the Tribunal on 13 November 2015, and again on 15 July 2016, to give evidence and present arguments (CB 97 to 99 and 145 to 147). On 18 July 2016, the Tribunal affirmed the delegate’s decision and found that, at the time of the application, the applicant was not an eligible vocational education and training student because he was not enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector provided by an eligible education provider (CB 157 to 162).
The applicant subsequently applied to the (then) Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. On 20 December 2017, orders were made by consent remitting the matter to the Tribunal on the basis the Tribunal had denied the applicant procedural fairness in respect of information that was the subject of non-disclosure certificate under s 375A of the Migration Act 1958 (Cth)(Act)(CB 163).
The Tribunal
On 21 March 2018, the Tribunal (differently constituted) wrote to the applicant confirming that it was reconsidering his application for review (CB 164 to 165).
On 26 August 2019, the Tribunal invited the applicant to attend a hearing scheduled for 20 September 2019 (CB 170 to 171). The applicant failed to attend that hearing and the Tribunal dismissed the application for non-appearance (CB 176 to 186).
On 1 October 2019, the applicant’s representative provided a submission to the Tribunal claiming that the applicant’s phone number and residential address had changed and that, because the applicant had not notified the Tribunal of these changes, he had not received the invitation to hearing letter (CB 191).
On 9 October 2019, the Tribunal decided to reinstate the application on the basis that the invitation to hearing letter had not been sent to the representative, only to the applicant at his postal address (CB 195). The Tribunal could not be satisfied based on the information contained in its files that the hearing invitation had been sent by email to the email address the applicant had given to the Tribunal (CB 195).
On 9 October 2019, the Tribunal invited the applicant to a hearing scheduled for 29 October 2019 (CB 197 to 198).
On 28 October 2019, the applicant’s representative provided a current Confirmation of Enrolment, financial documents and submissions (CB 204 to 212).
On 29 October 2019, the Tribunal affirmed the delegate’s decision (CB 221 to 229).
The Tribunal’s decision
The Tribunal identified that the issue in the review was whether the applicant met cl 572.227 and set out the requirements of this clause (CB 225 to 227 at [19] to [20]). The Tribunal noted that “exceptional reasons” was not defined in the Act or Regulations but had regard to guidance in Departmental policy (CB 227 to 228 at [22] to [23]).
The Tribunal found, based on the applicant’s course of study and country of passport being India, that the applicable assessment level pursuant to IMMI 14/014 was level 3 and, as a result, the applicant must satisfy cl 572.227 (CB 228 at [27]).
The Tribunal found it did not need to make a decision regarding the applicant being enrolled in a streamlined course, which had been in issue before the previous Tribunal. That was because the applicant was no longer enrolled in a course of study (CB 228 at [28]).
The Tribunal considered the applicant’s submissions and evidence but was not satisfied the reasons provided by the applicant were exceptional reasons for the grant of a visa. It found that the applicant’s reasons were personal to him and related to his own study, career goals and benefits to he and his family. The Tribunal found the applicant’s claim that his study in Australia to the bachelor level would benefit Australia through his fees and taxes were also not exceptional or unique. The Tribunal had regard to the representative’s submissions and found that the claims that the applicant was a genuine student were also not exceptional reasons to warrant the grant the visa. The Tribunal also addressed the representative’s submission that in the past, when the applicant was the holder of a Subclass 402 visa, he would have been able to avoid meeting the current criterion. The Tribunal did not accept that the Student framework having changed in the intervening years, was exceptional or out of the ordinary so as to warrant the grant of the visa (CB 228 at [29]).
The Tribunal considered the claims presented by the applicant individually, and cumulatively, but did not accept that exceptional reasons for the grant of the visa were established. The Tribunal was not satisfied the applicant had established exceptional reasons for the grant of the visa. The Tribunal found the applicant did not meet cl 572.227 (CB 229 at [31]).
The Tribunal noted that other subclauses had equivalent provisions to cl 572.227 and, for the reasons given, found the applicant did not meet the requirements for these subclauses (CB 229 at [32]). The Tribunal accordingly affirmed the decision under review (CB 229 at [34] to [35]).
Application to this Court
As noted above, the applicant commenced these proceedings by an application to show cause filed on 26 November 2019.
The proceedings were initially docketed to another Judge of the Court (first primary Judge). On 19 December 2019, a Registrar of the Court made orders, by consent, for the preparation of the matter for hearing. The applicant was granted leave to file an amended application by 13 February 2020. The proceedings were stood over for callover before the first primary Judge on 5 May 2021, which fixture was later vacated and the proceedings transferred to the central migration docket. On 14 September 2023 the proceedings were called-over by a Registrar by telephone. On 6 March 2024 the proceedings were docketed to me and I made orders on that occasion listing the matter for hearing including a further grant of leave to the applicant to file any amended application by 30 May 2024. The applicant and first respondent were ordered to file written outlines of submissions 14 and 7 days prior to the hearing (respectively). After having been adjourned due to the Court’s unavailability, the proceedings were ultimately listed for hearing before me on 13 February 2025.
First proposed discontinuance and subsequent adjournment application
On 5 February 2025, the Court received an email from the applicant (copying the first respondent’s solicitors) which said the following:
I am writing to inform you that I have decided not to pursue my case further. I kindly request that you accept my decision to withdraw my file.
Please let me know what steps I need to take next to formalize the withdrawal process. I appreciate your prompt attention to this matter.
Thank you for your understanding.
(discontinuance email)
Upon receipt of the discontinuance email, the Court’s Registry wrote to the applicant to inform him of the process for filing a Notice of Discontinuance and provided him a link to the relevant form.
On 6 February 2025, the Court received an email from the applicant (sent ex parte) saying:
I hope this email finds you well. I am writing to retract my previous email dated [5/02/2025] regarding the withdrawal of my case file. After reconsidering, I wish to continue with the case.
However, I am currently facing some unforeseen medical issues. I am experiencing severe allergies on my ear and face, which are causing me significant stress and discomfort. Due to these health concerns, I require some additional time to prepare for the upcoming court date.
In light of these exceptional circumstances, I humbly request an extension of the court date. I would greatly appreciate it if we could schedule an alternative date that would allow me sufficient time to address my medical issues and adequately prepare for the case.
Thank you for your understanding and support during this challenging time. I am grateful for your consideration and look forward to hearing from you soon.
(adjournment request)
At my direction, my Associate forwarded the adjournment request to the solicitors for the first respondent (copying the applicant). On 7 February 2025, (being the Friday before the hearing fixture), the Court received a reply from the first respondent’s solicitors opposing the adjournment request on the following bases:
•The adjournment request is unsupported by any medical evidence documenting the applicant’s medical issues and health concerns, including as to their nature, duration, severity or impact on preparation for or attendance at a hearing.
•The adjournment request on its face seeks “additional time” for the applicant to prepare for the hearing. In circumstances where the matter has been on foot for over five years, the first respondent submits that the applicant has had more than adequate time to prepare for the scheduled hearing.
•There is no explanation as to what preparation the applicant needs to undertake prior to the hearing, nor any explanation as to how his health concerns have prevented this preparation.
•The adjournment request does not appear to suggest that the applicant is unable to attend the scheduled hearing. In the event such a claim were made, the first respondent submits that any inability of the applicant to attend the scheduled hearing (if evidenced) could be alleviated by remote appearance. The first respondent would not oppose leave being granted to the applicant to appear remotely, should the applicant make such a request and the Court be minded to consider this course of action.
On Saturday 8 February 2025, the applicant sent to the Court two emails in support of his adjournment request. The first email, sent at 8:52am explained that he was “experiencing severe itching on my entire face and body” and required “a short period to obtain a medical certificate to validate my situation”. The second email sent at approximately 6:02pm essentially repeated the content of the earlier email, saying that while he was “experiencing a severe allergic reaction” he would “make sure to attend”. By the later email the applicant said he was:
concerned about the potential risk of transmission to others
and that:
to ensure everyone’s safety, I kindly request to extend the date.
The later email concluded:
I would also appreciate the opportunity to discuss my merits in person, rather than receiving a decision online. I believe my presence will allow for a more comprehensive evaluation.
On Sunday, 9 February 2025 the applicant sent a further email to the Court attaching a medical certificate which said that he:
has a medical condition and will need rest from 05/02/2025 to 12/02/2025 inclusive.
On Monday 10 February 2025, the first respondent’s solicitor wrote to the Court to make the following observations about the medical certificate:
a.The medical certificate of Dr Verma, Myhealth Blacktown dated 9 February 2025 only provides that the applicant has a medical condition and will need rest from 5 February 2025 to 12 February 2025.
b.Relevantly, the medical certificate does not:
a.Identify any particulars of the medical condition to which it relates.
b.Identify how the dates during which the applicant requires rest were identified, or whether any physical examination of the applicant was performed.
c.Identify whether the medical condition is contagious, and if so, how it is transmitted.
d.Identify the extent of the limitation on applicant’s capacity to undertake any activity (if any), save that he needs rest in an unspecified quantity.
c.The images provided by the applicant bear a resemblance to the photograph of the applicant in the Court Book (CB1).
The first respondent maintained his opposition to the adjournment application on the following bases:
a.The information provided does not address the critical question whether, and if so why, the medical condition would prevent the applicant from travelling to the Court and participating effectively in a Court hearing.
b.The medical certificate provided does not indicate there is any risk of transmission to others or that the applicant is unable to travel or access the community. The applicant has suggested that he is suffering from allergies, which are not typically contagious.
c.If the applicant were unable to travel to the Court, any such limitation would be alleviated by remote appearance, subject to the leave of the Court. The nature of the application relates to the construction of a statutory provision. While the applicant has expressed a preference to appear in-person, there is no reason presented as to why he would be prejudiced or disadvantaged by a remote appearance.
Notwithstanding the considerable force in the first respondent’s submissions opposing the adjournment application, given that the limited period specified in the medical certificate and the availability of the Court later that week, I granted the applicant a brief adjournment and relisted the matter for hearing before me at 10:15am on 13 February 2025.
The parties attended that adjourned hearing. The applicant was unrepresented but was assisted by an interpreter in the Punjabi language. The first respondent was represented by a solicitor.
The Court outlined to the applicant the nature of the hearing and the limitations on the Court’s jurisdiction in judicial review. The Court then identified the documents on the file relevant to the hearing. The applicant did not avail himself of the opportunity to file an amended application. An Affidavit was filed in support of the originating application. To the extent that it annexed the delegate's decision and the Tribunal's decision, both of which are in the Court Book, it was not necessary to have regard to it.
However, the body of the Affidavit contained statements at [4] and [5] which appeared to constitute a potential second ground of review. The Court asked with the applicant whether he intended that those statements be taken as a ground of review. The applicant said that he did. The Affidavit was otherwise not received.
The first respondent filed written submissions in the proceedings as ordered on 3 February 2025. The applicant did not file any additional documents in accordance with the Court's orders in time, or at all.
The Court Book was tendered for the first respondent and marked as Exhibit “1R”.
Grounds of review
The ground of review contained in the originating application is as follows:
The Tribunal erred by misconstruing the term ‘exceptional’ reasons under Regulation 572.227.
PARTICULARS
The term ‘exceptional’ may be understood to be unusual or out of the ordinary as cited by His Honour Smith J in Kim v MIAC [2008] FMCA 1577. Whereas, the Tribunal misconstrued this term to include unique circumstances, as noted in
a) Paragraph 17 of the Tribunal decision records “The Tribunal questioned whether the evidence indicated these were exceptional reasons for the grant of student visa as they did not seem unique or exceptional…:
b) Paragraph 29 of the Tribunal decision records “….it is the view that these reasons are not exceptional or unique…”.
By [4] and [5] of the applicant’s Affidavit which will be treated as ground 2, the applicant additionally contends:
I attended a hearing at the Tribunal on 29 October 2019 to give evidence. I was asked to give exceptional reasons for applying for the student visa during the hearing.
I did not understand the meaning of the word exceptional reason before, during or after the hearing.
During submissions regarding ground 1 (which will be discussed below) the applicant said “I haven’t prepared myself. My mind is not working”. The applicant said that he had been sick for the last two to three weeks, and could not prepare for his case.
Second proposed discontinuance and subsequent adjournment application
It was at that juncture that the applicant made an adjournment application saying:
If I’m given some time, I will 100 per cent come prepared next time.
The adjournment application was opposed by the solicitor for the first respondent on the basis that the proceedings had been on foot for more than five years and that the applicant had recently been granted an adjournment in the circumstances which are detailed above at [26] to [33].
The second adjournment application was refused for the following reasons:
(a)these proceedings were commenced on 26 November 2019. The applicant has had five years to prepare for the hearing. The proceedings were listed before me initially by orders that I made on 6 March 2024. They were initially listed for June of last year, so at least since March of last year, the applicant ought to have been preparing for today's hearing;
(b)the applicant was notified of today's hearing earlier this year, following which, it appears that he sought to withdraw from his case and then, apparently, changed his mind in that regard. Earlier this week, the applicant sought an adjournment of the hearing which was listed for Monday;
(c)the applicant was granted an adjournment to today, which is a date beyond the date until when the medical certificate said the applicant should rest;
(d)the basis upon which the first adjournment was sought was that the applicant was experiencing a “severe allergic reaction” which he was concerned could be transmitted to others. Leaving aside the fact that it is dubious that an allergic reaction could be contagious, there was no basis upon which (from the general medical certificate), the Court could be satisfied that the applicant did in fact have any allergic reaction;
(e)none of the bases upon which the first adjournment was sought were that the applicant was unable to prepare for his hearing. It seemed, rather, that the applicant was saying he simply could not attend Court, primarily for the benefit of others;
(f)there are also concerns about when it was the applicant attended a doctor, given that he did not provide an ostensibly existent medical certificate until prompted. However, the Court is prepared to give the applicant the benefit of the doubt that he did, in fact, attend upon a medical practitioner on 5 February 2025. I am also prepared to give him the benefit of the doubt that, because the medical certificate said that the applicant should rest from 5 February 2025 to 12 February 2025, this carries with it the implication that if he was resting, he could not prepare for the hearing;
(g)however, as the first respondent properly submits, given the length of time since the proceedings were commenced and listed for hearing, I am not satisfied that there is any utility in granting a further adjournment. The applicant has had ample time to prepare, an adjournment to enable his recovery and there is no medical evidence to suggest that he is not capable of participating in today's hearing, notwithstanding his submission a short time ago that his mind is not working.
The Court observed that the applicant’s first adjournment request was preceded by an indication that he did not wish to continue with his application. The applicant was asked about this, while stating that the Court was by no means suggesting that he should discontinue, but observing that the intention had emanated from the applicant. The Court asked the applicant whether his reticence to participate in today’s hearing was because, as he had indicated previously, he did not wish to proceed. The applicant said that he wished to discontinue the proceedings.
The Court then adjourned for 15 minutes to enable the applicant to have discussions with the solicitor for the first respondent about his desire to discontinue. When the hearing resumed at 11:15am, the solicitor for the first respondent indicated that during the course of those discussions, the applicant had changed his mind once more and no longer wished to discontinue and now wished to proceed with the hearing.
The applicant then said he would like more time to seek legal advice as to whether or not he should proceed to judgment or otherwise discontinue the proceedings. I indicated to the applicant that this further adjournment application was refused for the reasons given at [44] above. Further, the applicant has also had since at least early February (being his first mention of discontinuance to the Court) to have sought and such legal advice.
Ground 1
Immediately preceding the second adjournment request, the Court had ground 1 of the application interpreted to the applicant and he was asked to speak to it. The applicant said that the Tribunal ought to have granted him the visa. The applicant said that he was asked why he should be granted the visa, and he said that he wished to study. The applicant said that many people before him “went from a tourist visa to a student visa”.
The Court explained the fact that some people may have satisfied the criteria which enabled them to a successfully apply in respect of a student visa when previously having held a non-substantive visa, did not inform whether the applicant could be granted a visa, absent also satisfying the requisite criteria. The applicant was repeatedly asked to identify the error on the part of the Tribunal as pertained to ground 1. The applicant said that the Tribunal asked him why he should be given a visa and what benefit it would have to Australia. The Court indicated that the decision record suggested that those were, in fact, reasons that the applicant had advanced to satisfy why he had established exceptional reasons and did not appear to have emanated from the Tribunal. The applicant otherwise said he did not know what the error of the Tribunal was.
The first respondent submitted that ground 1, taken at its highest, contends that the Tribunal misconstrued the definition of “exceptional circumstances” for the purposes of cl 572.227 by treating them as though they must be “unique”, as opposed to unusual or out of the ordinary (citing Kim v Minister for Immigration and Citizenship [2008] FMCA 1577 per Smith FM).
The first respondent further submitted that this ground fails immediately upon a fair reading of the Tribunal’s decision. The Tribunal consistently referred to the need for the applicant’s circumstances to be “unique or exceptional” (emphasis added) (CB 224 at [17] and CB 228 at [29]).
I agree with the first respondent’s submission that the Tribunal correctly identified that the term “exceptional circumstances” is not defined within the Act or the Regulations and that it had regard to relevant case law (CB 227 at [21] to [22]). The Tribunal addressed each of the applicant’s claims as to why his circumstances were said to be exceptional, finding that:
(a)the benefits that the applicant’s study would offer, including improving his future, his career and benefiting his family, would apply to many people studying in Australia (CB 228 at [29]);
(b)the benefits to Australia from the applicant’s study (through fees and taxes paid) would apply to many people studying and working in Australia (CB 228 at [29]);
(c)the applicant being a genuine student with strong family ties and available funds was true of many students studying in Australia (CB 228 at [29]); and
(d)the change statutory framework and applicant’s own lack of knowledge as to the implications of applying on a Tourist visa were not exceptional or out of the ordinary (CB 228 at [29]).
I accept the first respondent’s submissions that the Tribunal’s findings were plainly open to it and there is nothing to suggest that it misconstrued the meaning of “exceptional circumstances” or in any way misapplied the relevant legislation.
The first respondent as a model litigant has quite properly today drawn the Court's attention to more recent authorities in respect of the jurisprudence as to how the phrase which is contained in cl 572.227 of Schedule 2 to the Regulations of exceptional reasons should be construed. Relevantly, in Arora v the Minister for Immigration and Border Protection [2017] FCA 484 Greenwood J found at [21], that:
The Full Court also observed that when considering exceptional circumstances in the context of that statutory regime, regard had to be had to circumstances which could properly be characterised as “unusual” or “out of the ordinary” but that did not mean substituting the language of the Act, “exceptional circumstances”, with the phrase “unusual or out of the ordinary”: Cohn v Hatcher, Lander J at [58] to [63], Black CJ agreeing at [1], Wilcox J agreeing at [2]. The phrase adopted in the statutory regime in issue in these proceedings is “exceptional reasons”. It is a very broadly-based phrase engaging a wide range of circumstances which may be considered by the Tribunal on a case by case basis.
In Hoang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 695, Horan J found at [69] and [70], that:
The suggestion that cl 572.227 imposes a “high threshold” involves a gloss on the language used in the Regulations which may go beyond an explication of the ordinary meaning of the term “exceptional reasons”. There is a danger that such an approach could set a higher bar for the grant of a visa than the requirement to establish reasons that are “exceptional”, in the sense of out of the ordinary, uncommon, unusual or special. The term “exceptional reasons” in cl 572.227 is “a very broadly-based phrase engaging a wide range of circumstances which may be considered by the Tribunal on a case-by-case basis”, and some caution should be exercised against the substitution of different language to that actually used: see Arora v Minister for Immigration and Border Protection [2017] FCA 484 at [21] (Greenwood J).
Nevertheless, it may be noted that the Tribunal in Shashidhar had made similar observations about cl 572.227 involving a “a relatively high threshold requirement”: Shashidhar at [9]. This does not appear to have attracted any criticism in that case, in which Murphy J considered that “the expression ‘exceptional reasons’ in clause 527.227 must mean reasons that are unusual or out of the ordinary”: Shashidhar at [21]. Further, in post-hearing submissions provided with the leave of the Court in the present appeal, the Minister drew the Cout’s attention to the decision in Mehta v Minister for Immigration and Border Protection [2016] FCCA 748 at [10] , where Judge Harland referred to cl 572.227 as setting out “a very high bar for an applicant to pass because it is necessary for the applicant to establish exceptional reasons for granting that visa”.
I agree with those submissions of the first respondent in respect of ground 1. To the extent that there has been recent consideration of the phrase, "exceptional circumstances" and in particular the fact that, as the first respondent quite properly points out, the Tribunal used a particular expression a [29] of its reasons, it is useful to consider particularly the decision in Hoang by reference to the following part of [29]:
Secondly, as to his claim that by studying in Australia to the Bachelor level this will benefit Australia through fees and taxes paid as he will be able to work, the Tribunal is of the view that these reasons are not exceptional or unique and apply to many people studying and working in Australia and concludes with the words:
It is the use of the words, "not exceptional or unique" which could, at first blush, give rise to a concern that the Tribunal misconstrued “exceptional reasons” for the purposes of the relevant clause of the Regulations. However, having regard to Hoang at [69] and [70], I am not satisfied that there is any misconstruction or misapplication on the part of the Tribunal, nor any misapplication of that clause of the Regulations. At its height, particularly by the Tribunal's use of the alternative or unique, that sentence can be taken to mean that the Tribunal fully understood that the reasons needed only to be exceptional, as that phrase was understood at the time, and that it was not setting a higher threshold or bar by its statement. I am not satisfied that the Tribunal misdirected itself in any way, nor erred in the manner identified in Hoang. Accordingly, ground 1 must fail.
Ground 2
In relation to ground 2, despite the fact the applicant was given the opportunity to address it at hearing, he made no further submissions in that regard. The solicitor for the first respondent contended that if the allegation was one of a breach of s 360, as that error can be understood in light of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, that it did not reach the requisite standard because the applicant was aware of the dispositive of the issues in the review.
It is difficult to understand whether what is being alleged by ground 2 is, in fact, an SZBEL-style error. That does not appear to be particularly apposite in circumstances where there is no suggestion that the dispositive issue/s changed between the delegate and Tribunal phases in this case.
It might be that the applicant contends there to be a breach of s 359A error based on which he says was his subjective lack of understanding of the term “exceptional reasons” and that the Tribunal ought to satisfied ensured, as far as is reasonably practicable, that the applicant understands why it was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review. If that is his contention, I am not satisfied that the section was engaged in respect of the visa criteria themselves.
I accept the submission of the first respondent that s 357A of the Act, as it existed at the time, was an exhaustive statement of the natural justice hearing rule in respect of the content of that Part. I am not satisfied that there is any error on the part of the Tribunal for having failed to ensure that the applicant subjectively understood the expression, "exceptional reasons".
Further, I can see no procedural unfairness to the applicant in circumstances where there was no change in the dispositive issue throughout the delegate phase and, in fact, two Tribunal phases, albeit accepting that the matter was remitted (but on an entirely unrelated basis by this Court in 2017). The applicant was also legally represented through the first Tribunal phase. It is open to infer that (at least for the purposes of that stage of the Tribunal proceedings) the applicant had been made well aware by his legal representatives of the meaning of the expression and, in fact, the applicant had, throughout all phases including the delegate phase, needed to satisfy the decision makers that there were exceptional reasons in his case.
Further, I am satisfied that the Tribunal did in fact take steps to ensure that the applicant was aware of the issue that was dispositive of the review. Paragraph [16] of the Tribunal’s reasons stated as follows:
The applicant appeared before the Tribunal on 29 October 2019 and gave evidence. His representative attended the hearing. When it was explained that he is required to show exceptional reasons for the grant of the visa to meet cl. 572.227 as he applied onshore while the holder of s subclass 600 visa and is subject to Assessment Level 3, the applicant referred to the benefits his study of the Diploma of Business and then a Bachelor degree in Australia will have on him, his career, his future and his family. He referred to the benefits his study by paying fees would have on Australia and taxes when he works. His representative referred to his submission and noted that if the applicant had applied while the holder of the subclass 402 visa, which he held prior to the subclass 600 visa, he would not have had to show exceptional reasons. It was also discussed that after 1 July 2016 there is no requirement to shown exceptional reason for the grant of the student visa. The applicant noted his subclass 600 visa he held at the time he applied for was only valid for three months. The Tribunal asked whether he is currently enrolled in a streamlined course and he said he is not. The Tribunal asked whether he had successfully completed any course in Australia and he said he had not and referred to family issues in India and that he did not commence any course as he was unsure and worried as to whether his visa would be granted.
There is no suggestion from the Tribunal's record of decision that the applicant in any way suggested to the Tribunal member that he did not understand the issue dispositive of the review, nor that he did not understand the meaning of exceptional reasons. Absent transcript, the decision record is the best evidence of what occurred before the Tribunal.
Accordingly, to the extent that ground 2 as raised by the Affidavit document can be taken to make an allegation of an error on the basis of what the applicant now claims to be his subjective lack of knowledge as to the understanding of the expression "exceptional reasons" or "exceptional circumstances", I am not satisfied that there is any error. Accordingly, ground 2 also fails.
I will note also for the purposes of the reasons for judgment that at the commencement of the giving of these reasons ex tempore, the interpreter indicated that she had been asked by the applicant not to interpret the reasons for judgment to him. I confirmed with the applicant that he wished to proceed in this way, and he confirmed to me that he did. In any event and, as I explained to the parties prior to the commencement of the ex tempore reasons for judgment, the Court will make the order that the substantive orders today will not be entered until the time that the written reasons are published to the parties. Accordingly, I can see no procedural unfairness to the applicant in having proceeded without the ex tempore reasons having been interpreted to him in the Punjabi language. Accordingly, the application will be dismissed.
COSTS
Consequent upon the dismissal of the application, the solicitor for the first respondent made an application that the applicant pay some part of the first respondent's costs, fixed in the sum of $5,400. For the purposes of this part of the hearing, I insisted that the interpreter resume interpreting for the applicant. The applicant was asked as to what he wished to say in relation to whether costs should follow the event and, if so, in what amount. The applicant made submissions and asked if he could have a discount on the amount that the first respondent was seeking.
I explained to the applicant that he would receive correspondence from the first respondent's solicitors providing contact details for whom at the Department he could speak to about instalment payments and/or any reduction.
In all the circumstances of this case, I am satisfied that costs should follow the event. I am also satisfied that the amount is reasonable, having particular regard to the Court's scale but also additional administrative work that has occurred by reason of the applicant's correspondence regarding his initial foreshadowing of a withdrawal and also then significant correspondence surrounding his adjournment request earlier this week.
Accordingly, I will make an order in that amount.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 6 March 2025
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