Khudayberganova v Minister for Immigration
[2016] FCCA 2099
•11 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHUDAYBERGANOVA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2099 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Student visa applied for onshore – necessity for “exceptional reasons” – application for judicial review – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.41 Migration Regulations 1994 (Cth) |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 Kim v Minister for Immigration [2008] FMCA 1577 Kim v Minister for Immigration [2009] FCA 161 |
| Applicant: | MALIKA KHUDAYBERGANOVA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3369 of 2014 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 10 March 2016 |
| Date of Last Submission: | 16 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 11 November 2016 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms L Burnett. |
| Solicitors for the First Respondent: | Clayton Utz. |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 4 December 2014 is dismissed with costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3369 of 2014
| MALIKA KHUDAYBERGANOVA |
Applicant
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a female citizen of Uzbekistan aged 24 years, having been born on 2 December 1991.
By her Application filed in this Court on 4 December 2014 she seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of the decision the Migration Review Tribunal) (Tribunal), dated 11 November 2014, affirming a decision of the Delegate of the First Respondent (Delegate), the Minister for Immigration and Border Protection (Minister), dated 15 April 2014, refusing to grant a Student (Temporary) (Class TU) Vocational Educational and Training Sector (Subclass 572) Visa (Student Visa).
Background
The Applicant entered Australia on 4 November 2013 as the holder of a Visitor visa which expired on 4 February 2014 and on which date the Applicant applied for the Student Visa.
The Applicant is both intelligent and fluent in the English language. She studied for three years in England before coming to Australia and successfully completed a Bachelor’s Degree (Hons) in Business Management at Glyndwr University London. She comes from a successful family, with her father being a professor in medical science in Uzbekistan and a representative of Uzbekistan in the World Health Organisation. Her mother is a specialist in hygiene and food and her grandmother is a pharmacist.
She is now married and her husband has applied for a protection visa in Australia and she has given birth to a baby in Australia.
Decision of Delegate
Her application for a Student Visa was received by the Department of Immigration and Citizenship (Department) on 4 February 2014. It was common ground (and as was provided for by the combined effect of s.41of the Migration Act 1958 (Cth) (Act) and reg.2.05 of the Migration Regulations 1994 (Cth) (Regulations) and cl.572.227 of Subclass 572 of Sch.2 to the Regulations) that, as she applied onshore in Australia for a Student Visa while holding a Visitor Visa, she had to establish “exceptional reasons” for the grant of the Student Visa.
The application form for a Student Visa (in sections 28 and 49) invites an Applicant to address such “exceptional reasons” justifying the grant of a Student Visa. The Applicant did so by attaching a letter dated 3 February 2014 to her application form. This letter recited her immediate family history and her studies in London and stated her genuine intention to study in Australia and return to Uzbekistan to improve its health system.
By letter dated 7 February 2014 the Department requested the Applicant to provide additional information, and in particular to provide “exceptional reasons” for her on-shore application in accordance with cl.572.227 of the Regulations.
The Applicant asserts that by an email dated and sent 25 February 2014 she, amongst other things, asked the Department to “kindly please explain what reasons are you considering as compelling as you have requested this information a few days ago”. The sending of this email only arose at the hearing and Ms Burnett was unable to confirm or deny whether or not this email was received by the Department. After the hearing, by email of 15 March 2016, the First Respondent’s solicitors advised that the Department’s IT Support team had searched for and been unable to locate any email sent to the Department from the Applicant’s email address between 24-26 February 2014. By a later email, the Applicant continued to assert that she had sent this email. In the circumstances, doing the best I can and without the benefit of cross-examination, I find that on the balance of probabilities the Applicant did send this email and that, as seems clear, there was no response.
On 15 April 2014 the Delegate was not satisfied that the Applicant satisfied the prescribed criteria required by cl.572.227 to Sch.2 to the Regulations because the Applicant had not established “exceptional reasons” for a grant of the Student Visa, and therefore she refused the Student Visa to the Applicant.
Decision of Migration Review Tribunal
On 5 May 2014 the Applicant applied to the Tribunal for a merits review of the decision of the Delegate. Attached to the form of the application for review was an undated letter from the Applicant which gave additional information in support and complained that the Department had failed to advise her as to what were “exceptional circumstances”. She wrote:
“…I was also trying to ask the staff in Immigration Department as to what “exceptional circumstances” they want me to provide falling under the Assessment Level 3 because I am a holder of Uzbekistan passport. No answer has been given to me…”
The Tribunal, by letter dated 6 May 2014, acknowledged receipt of her application for review and invited the Applicant to provide material or written arguments for the Tribunal to consider.
By letter dated 18 September 2014 the Tribunal set a hearing date of 16 October 2014, and again asked the Applicant to provide all documents she intended to rely on to establish that she met the criteria for the Student Visa.
The Applicant attended the hearing before the Tribunal, which took place on 16 October 2014.
The Tribunal in its Decision Record of 11 November 2014 found that there was nothing in the Applicant’s circumstances that enabled the Tribunal to find that she had established the “exceptional reasons” necessary for the grant of a Student Visa and affirmed the decision of the Delegate.
Applicant’s Attack on Decision of Tribunal in this Court
The Grounds relied upon by the Applicant at the hearing were in Annexure A to her affidavit of 26 February 2016 which replicated Grounds 1 and 2 in her Application to the Court, but with the addition of submissions in support. Only Grounds 1 and 2 were relied upon at the hearing and they appeared in the affidavit as follows:
Ground 1.The MRT misunderstood my exceptional
circumstances.
Ground 2.The Department has also failed to respond to my
enquiry.
Ground 1
The expression “exceptional reasons” means reasons that are unusual, special or out of the ordinary. In this Court in Kim v Minister for Immigration [2008] FMCA 1577, Smith FM at [7]-[8] said as follows:-
[7]. The word ‘exceptional’ has dictionary meanings: “of the nature of or forming an exception; out of the ordinary course, unusual, special” (OED). It is commonly used in legislation when giving a decision-maker a power to identify circumstances or reasons justifying the lifting of a statutory rule, where it is intended that the rule will normally apply. On some occasions, the considerations which are intended to identify an exceptional case are expressly or implicitly shown in the framing of the power, but in others the relevant considerations are left undefined. In the latter situation, the decision-maker may appear to be given a very broad discretion to identify and weigh the considerations upon which he or she will decide whether to dispense with the normal rule.
[8]. Authorities which indicate the usual approach of a court on judicial review of dispensing powers were collected by French J in Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at [18]:
[18] The word “special” conditioning “reasons” or “circumstances” guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened. A Full Court has spoken of it as having content which is “…sufficiently understood not to require judicial gloss.” Beadle v Director-General of Social Security (1985) 60 ALR 225 at 228. If helpful to speak in terms of its meaning almost all of it comes from context. Thus man may be “special” in relation to animals generally but “… when you are speaking of poets, he may need to be a Milton.” Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578; 103 ALR 684 at 686 per Burchett J. It is an elastic instruction suitable for application across a range of situations: Jess v Scott (1986) 12 FCR 187; 70 ALR 185. This is just another way of pointing to its instrumental character. That application is not to be confined by precise limits or rules: Beadle at 228. Circumstances or reasons will not necessarily fall outside the designation of “special” because they fall within a class which is widely defined or because they are circumstances or reasons which can be foreseen before they arise: Hutchins; Jarlas Pty Ltd v Commissioner of Taxation (Cth) (1987) 14 FCR 510 at 527; 74 ALR 455 at 473. The core of the requirement for “special circumstances” or “special reasons” is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Minister for Community Services and Health v Chee Keong Thoo (1988) 8 AAR 245 at 261-262; 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32; 108 ALR 322. In Beadle the Full Court, having concluded that the term “special” was sufficiently well understood not to require a judicial gloss said the matter was one for the decision-maker, in that case the Director-General of Social Security.
An appeal from the decision of Smith FM was dismissed by Buchanan J in the Federal Court of Australia in Kim v Minister for Immigration [2009] FCA 161 with his Honour supporting the reasoning of Smith FM. Accordingly, the Tribunal had a wide discretion as to what matters it either individually or cumulatively considered in assessing whether the Applicant had shown “exceptional reasons”. In its Decision Record the Tribunal recited the Applicant’s circumstances including her family background, her previous successful studies, her desire to study in Australia and her desire to contribute to the health system in Uzbekistan upon her return there.
Nevertheless, in the result, the Tribunal found that there was nothing in the Applicant’s circumstances that enabled it to find “exceptional reasons”.
The Applicant is clearly dismayed at the Tribunal decision not to find “exceptional reasons”. She says that she never anticipated when she applied for the Student visa onshore that she would fail in that regard. Nevertheless, I am not involved in a merits review of the Tribunal’s decision but rather a review of whether or not the Tribunal engaged in a lawful exercise of power and whether or not its decision lacked legal reasonableness or was otherwise in breach of procedural fairness such that the Applicant suffered a practical injustice.
In my view, no jurisdictional error has been committed by the Tribunal and it cannot be said that its decision was arbitrary, capricious, illogical, irrational or lacked an intelligible justification. Rather, the Tribunal’s decision that it was not satisfied that the Applicant had established “exceptional reasons” was open to it on the evidence before it. These were matters for the judgment of the Tribunal and not for this Court.
I note that the Applicant quite candidly said that she knew that she could return to her home country of Uzbekistan and re-apply for a Student Visa and thereby would not have to show “exceptional reasons”. However, she variously said that such a course was very time-consuming, as Uzbekistan was about 30 hours of air travel away, and such a course would be financially consuming, and also complicated because there is no Australian embassy in Uzbekistan. All of this is perfectly understandable but it means that the necessary result is that having applied onshore the Applicant had to establish “exceptional reasons”, and the Tribunal as the body invested with the power to make a decision in that regard has found against her and in my view Ground 1 fails.
Ground 2
As I have said above, the Applicant is an intelligent, articulate and educated person and is quite able herself to understand the expression “exceptional reasons”. She was expressly requested by the letter of 7 February 2014 from the Department referred to in paragraph [8] above to provide “exceptional reasons” in support of her Student Visa application. It is for the Applicant to make and advance her case so as to establish to the satisfaction of the Minister or the Tribunal on review that the criteria for the grant of the relevant visa have been satisfied. As Gummow and Hayne JJ, in connection with a protection visa said in Abebe v The Commonwealth (1999) 197 CLR 510 at 576 ([187]):-
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Further, I am not reviewing the decision of the Delegate but rather the decision of the Tribunal and by the time the Tribunal hearing commenced, the Applicant knew from the decision of the Delegate that her Student Visa had been refused on the basis that she had not provided “exceptional reasons” for the grant thereof.
The transcript of the Tribunal hearing also establishes that the Applicant agreed with the Tribunal member that she understood that she was required to show “exceptional reasons”.
Finally, whether or not the email of 25 February 2014 referred to in paragraph [9] was sent, as I have found, does not appear to me to matter because, in my view, the Department is not bound or required to advise an applicant in connection with the relevant criteria applicable to the grant of a visa or advise on the evidence appropriate to satisfy those criteria. In particular, it was not for the Applicant’s case officer to advise about “what ‘exceptional reasons’ they want me to provide” or “what reasons are you considering as compelling”. If an applicant truly wants that sort of advice, he or she needs to make independent enquiries or engage a lawyer or migration agent to give such advice.
In conclusion, I can discern no jurisdictional error or procedural unfairness let alone procedural unfairness leading to practical injustice and accordingly the Application must be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 11 November 2016
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