KUMAR v Minister for Immigration

[2015] FCCA 2497

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2497

Catchwords:
MIGRATION – Application to review decision of the Migration Review Tribunal – whether the Tribunal erred in consideration of whether the Applicant had established exceptional reasons for the grant of a student visa – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.65

Migration Regulations 1994 (Cth), cl.572.227 of Sch.2, condition 8201 of Sch.8

Kim v Minister for Immigration and Citizenship [2009] FCA 161
Kim v Minister for Immigration & Anor [2008] FMCA 1577
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63

Applicant: SATISH KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 736 of 2014

Judgment of: Judge Barnes

Hearing date: 4 September 2015

Delivered at: Sydney

Delivered on: 4 September 2015

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The Application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $3,700.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 736 of 2014

SATISH KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal (now known as the Administrative Appeals Tribunal) dated 24 February 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa. 

2. The Applicant came to Australia on 4 October 2012 as the holder of a Subclass 676 Tourist visa. He applied onshore for a Student (Subclass 572) visa on 3 January 2013. One of the criteria to be satisfied at the time of decision was the criterion in cl.572.227 of Schedule 2 to the Migration Regulations 1994 (Cth) (the “Regulations”) which relevantly provided:

   If:

   (a) the application was made in Australia; and

   (b) subject to clause 572.227A, the applicant is subject to the highest assessment level for the relevant course of study; and

   (c) at the time of application, the applicant met the requirements of clause 572.211:

   (i) as the holder of a visa of one of the following classes:

   …

   (NA) Tourist (Class TR);

   (NB) Visitor (Class TV);

   (O)Working Holiday (Temporary)(Class TZ); or

   (ii) as the holder of a special purpose visa; or

   (iii) as the holder of a visa of one of the following subclasses:

   (A) Subclass 303 (Emergency (Temporary Visa Applicant));

   (B) Subclass 427 (Domestic Worker (Temporary) – Executive);

   (BA) Subclass 485 (Skilled – Graduate);

   (C) Subclass 497 (Graduate – Skilled); or

   (iv) as a person:

   (A) who was not the holder of a substantive visa; and

   (B) Who, immediately before ceasing to hold a substantive visa, was the holder of a visa mentioned in subparagraph (i), (ii) or (iii);

   the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.

3. The delegate found that the Applicant did not satisfy this criterion because he failed to establish exceptional reasons for the grant of the visa. 

4. The Applicant sought review by the Tribunal.  He attended a Tribunal hearing.  He provided documentation in support of his application, including in relation to his past studies, activities and his intended studies in Australia.

5. In its reasons for decision the Tribunal referred to the fact that the delegate had invited the Applicant to explain what the exceptional reasons for the grant of a student visa onshore were that he considered applied in his case.  It summarised the Applicant’s response.

6. The Tribunal recorded that at the Tribunal hearing on 17 February 2014 the Applicant and his brother gave evidence and that it explained to the Applicant the requirement that, as the holder of an Indian passport who proposed to study in Australia, he had to establish there were exceptional reasons for the grant of a student visa onshore.  The Tribunal also explained that it would be focussing on this issue of exceptional reasons for the purposes of the review.

7. The Tribunal set out in some detail the evidence of the Applicant about why he had applied for a student visa in Australia, and why he had not returned to India to apply. It put to him that most people issued with a visitor visa were not allowed to study or work. The conditions on his visitor visa were discussed. According to the Tribunal reasons for decision (the only evidence before the Court of what occurred in the hearing), the Applicant explained that he came to Australia on a three month tourist visa which permitted him to engage in study that did not exceed three months. As explained by the Applicant today, this was a reference to Condition 8201 of Schedule 8 to the Regulations which provides:

   While in Australia the holder must not engage for more than three months in any studies or training.

8. At the Tribunal hearing the Applicant described the business studies he had undertaken whilst holding a visitor visa and explained that he intended to undertake further studies for a period of not more than a year and then to return to India to continue running the family business.  The Tribunal asked the Applicant about what he considered to be exceptional circumstances and sought similar evidence from his brother.

9. After hearing from the Applicant’s brother, the Tribunal gave the Applicant a further opportunity to provide evidence in relation to the existence of exceptional reasons for the grant of the visa onshore.   

10. In its findings and reasons the Tribunal stated that the issue was whether the Applicant satisfied cl.572.227. It found that having regard to the subclass of visa the Applicant was seeking, the fact he was the holder of an Indian passport, and the assessment level to which he was subject, the Applicant was required to satisfy the criterion in cl.572.227 and to establish exceptional reasons for the grant of the visa.

11. The Tribunal set out in some detail extracts from the decision of Smith FM in Kim v Minister for Immigration & Anor [2008] FMCA 1577 in relation to the concept of “exceptional reasons” for the grant of a student visa for which a person applied while in Australia.  In particular the Tribunal referred to the fact that Smith FM had stated (at [7]) that the word “exceptional” meant “out of the ordinary course, unusual, special” and (at [13]) had stated that the “normal rule” was that a person holding a class of visa within cl.572.227 with an assessment level related to the country of origin higher than 1 would not be granted a subclass 572 visa if he or she applied while in Australia.

12. As the Tribunal observed Smith FM also indicated in Kim (at [30]) that the decision-maker was:

    … [r]equired 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”.

13. The Tribunal stated that it had considered the reasons the Applicant had given as exceptional and had “observed the reasons” in Kim.  It summarised the reasons given to the delegate (that the Applicant had completed year 12 in India and had good practical knowledge in repairing and maintaining electrical goods and appliances; that he had visited colleges in Sydney and found the education system in Australia similar to India; that he felt that the knowledge of running a business in a proper way was missing; that he wanted to gain training in business management; that the Indian economy was growing at a very fast pace; and that there were many multinationals going to India and considerable growth in the industrial sector).

14. The Tribunal also set out that the reasons the Applicant had given to it on review were that he wished to study in Australia and develop business skills to grow his business in India and claimed that if he returned to India to apply for the visa offshore it would take a long time for the visa to be processed and there would be a substantial gap in his studies after the studies he completed in February 2013.

15. The Tribunal did not accept that the delays in an offshore application, the Applicant’s desire to enhance his business management skills or the existence of a gap in his studies constituted exceptional reasons to grant the visa onshore.  It found that having considered the reasons advanced individually and cumulatively, it could not identify any exceptional reasons for the grant of the visa.

16. The Tribunal found that the Applicant did not meet the requirement of cl.572.227. Nor was there any evidence that he met the criteria for any other subclass of Student visa. It affirmed the decision of the delegate to refuse to grant him the visa.

17. The Applicant sought review by Application filed in this Court on 21 March 2014.  The only ground in the Application is expressed as follows:

    Within my original visa granted permission to study was allowed.

18. On its face, this is no more than a bare statement of fact reflecting the application of condition 8201 to the Applicant’s original Tourist visa. The fact that the Applicant was able to engage in study that did not exceed three months was noted by the Tribunal in its reasons for decision. It was not considered adversely by the Tribunal. The Tribunal understood that the Applicant had completed some study in Australia in February 2013 and considered his claim that if he had to apply for a student visa offshore there would be a gap in his studies. However it was not satisfied that such circumstances, either of themselves or considered with the other matters the Applicant raised, constituted exceptional circumstances within clause 572.227.

19. As the First Respondent submitted, the issue of whether exceptional circumstances exists is a factual question for the Tribunal.  Nothing was identified by the Applicant as giving rise to a jurisdictional error in that respect.  The Tribunal summarised and considered (in the exercise of its broad discretion) the reasons given by the Applicant, both to the delegate and to the Tribunal.  It also considered his brother’s evidence.  It had regard to the principles in Kim in assessing such asserted reasons.  In particular, it considered the reasons both individually and cumulatively (see the Federal Court decision in Kim v Minister for Immigration and Citizenship [2009] FCA 161 at [15] per Buchanan J which upheld the decision of Smith FM at first instance). It concluded that such reasons were not exceptional “in ordinary parlance” (see Kim at [30] per Smith FM).

20. Insofar as the Applicant takes issue with the Tribunal’s conclusion (as appeared to be the case today), this was a factual question for the Tribunal. Its findings were open to it on the material before it and merits review is not available in this Court.

21. For the sake of completeness, I note that it appears from the Tribunal’s account of the Tribunal hearing that it specifically brought to the Applicant’s attention the relevance of the issue of exceptional reasons for the grant of the visa.  In any event, such issue was clearly identified in the delegate’s decision, so that it cannot be said that the applicant was not on notice of the dispositive issue on the review (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63).

22. The Applicant conceded in oral submissions that he was not able to identify any error in the Tribunal’s reasoning or procedures.  Jurisdictional error has not been established.  Accordingly the application must be dismissed. 

23. The Applicant has been unsuccessful.  The Minister seeks costs in the sum of $3,700.  This is considerably less than the amount provided for in the Federal Circuit Court Rules 2001 (Cth) as an indicative amount. There is nothing in the circumstances of this case to warrant a departure from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent. The amount sought is appropriate and reasonable in light of the nature of this and other similar matters.

24. The Applicant indicated that he would pay these costs, but just needed more time.  I do not propose to make an order in relation to the time for payment.  The Applicant’s circumstances are a matter that may be taken into account by the Minister in determining when and how to seek to recover such costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date: 11 September 2015