Lally v Minister for Immigration

[2014] FCCA 2835

FEDERAL CIRCUIT COURT OF AUSTRALIA

LALLY v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2835

Catchwords:
MIGRATION – Application for judicial review of Migration Review Tribunal decision – grounds wholly unparticularised – Tribunal’s decision clearly open on the materials and not revealing jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958

Migration Regulations 1994, cl.572.227

Kim v Minister for Immigration and Citizenship [2008] FMCA 1577
Kim v Minister for Immigration and Citizenship [2009] FCA 161

Applicant: JASVINDER SINGH LALLY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2100 of 2013

Judgment of: Judge Burchardt

Hearing date: 20 October 2014

Date of Last Submission: 20 October 2014

Delivered at: Melbourne

Delivered on: 12 December 2014

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr Lukic

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Amended Application filed 2 December 2013 be dismissed.

2. The Applicant is to pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 2100 of 2013

JASVINDER SINGH LALLY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter does not require greatly extensive reasons for judgment.  The applicant’s application filed 2 December 2013 seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal) dated 13 November 2013.  The Tribunal affirmed the decision of the delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The grounds of application are:

   “1.    S.477, Judicial review can be lodged within 35 days after tribunal review has been finalised

   2.    I am not happy with tribunal decision, applying for judicial review for legitimate decision 

   3.    I do have exceptional circumstances beyond the application lodgement previously”

3. The applicant’s affidavit filed contemporaneously merely repeats the second and third of those two assertions.

4. On 19 February 2014, Registrar Allaway made orders which inter alia would permit the applicant to file any amended application and written submissions.  Given his self representation and the lack of familiarity, I would infer, with our legal system, it is no surprise that he has done neither.

5. When the matter came before the Court, the applicant said he had put in his visa application in 2013.  He said he had an issue with his wife who had told him to work but he wished to study, and she then abused him.  He said he had completed a hospitality course and was undertaking a cooking course.  He has said that the Tribunal wanted to spoil his opportunities.

6. In response, counsel pointed out that the issue of abuse from his spouse was not raised before the Tribunal.  Counsel was otherwise prepared to rely upon the written submissions filed.

7. The decision of the Tribunal is at Court Book (“CB”) 171-176.  At paragraph 3 CB172, the Tribunal recorded that:

   “3. The delegate refused the visa application as the applicant did not satisfy cl.572.227 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the applicant did not satisfy cl.572.227 because he was not satisfied that the applicant demonstrated exceptional circumstances for the grant of the visa.”

8. The Tribunal set out the relevant law at CB 172-174.  It is clear from what the Tribunal set out that in order to achieve the visa he sought, the applicant had to establish exceptional reasons for the grant of a subclass 572 visa.

9. In dealing with the claims and evidence at CB 174 ,the Tribunal noted at paragraph 13 and following:

   “13.  At the hearing the applicant said that when he came to Australia he tried to obtain a job.  He said he has obtained a Bachelor in Hospitality Catering and Tourism in India but those studies they don’t have any value.  He said after completing his studies, he had three years’ experience as a Tandoori chef in India. 

   14.  I asked the applicant when he arrived in Australia.  He replied 2012.  I asked him what his reason for coming here was.  He replied that he came with his wife – she had Subclass 485 which ceased on 4 April 2012 and after that, she applied for a student visa which she now holds.  I asked the applicant if he could obtain a dependent student visa.  He said no, he wants to study. 

   15.  I asked the applicant if there were any other things he would like me to take account.  He said that he has finished 60% of his course and has also paid half of the course fees.

   16.  I then explained to the applicant the exceptional circumstances requirement set out in clause 572.227.  He appeared to have some difficulty understanding this so his representative offered to explain to him in his language. 

   17.  After that occurred, I asked the applicant again if there were any matters he would like me to take into account.  He said he followed his wife here to Australia to make their future here.  He said after some time they were having marriage problems.  He said he can’t go back to India as this would be embarrassing for him and his family. 

   18.  I asked the applicant’s representative if he wished to make submissions.  The representative said he wished to highlight for exceptional circumstances that the applicant did not previously hold a student visa as he came on a subsequent entrant skilled provisional.  He said at present his wife has been granted a student visa and if he has to leave the country and go back to India, it will necessitate a further application from India in circumstances where his studies are 60% complete.  The representative said the applicant has expended considerable sums of money to follow his wife to Australia and bearing in mind if he has to return he will have to go back to his home village.  He said they have an expectation he will complete his studies before coming back.  The representative said if he breaks his studies, partially complete studies are of no value.  The representative requested that I exercise the discretion to allow him to complete the balance of his studies then return.  The representative said then he may make the appropriate application if he wished to come back and be with his wife. 

   19.I asked the representative when the applicant’s studies are due to complete.  He replied 2015.  I suggested this was rather a long period to exercise a discretion to allow the applicant to complete the course. 

   20.  The representative said if the visa is refused the applicant will have to go back to India, explain to his family why he had to leave Australia and he will have to go through level 4 assessment in India to obtain a student visa.  The representative said he is here now and 60% complete and can finish his course off.”

10. The Tribunal went on at CB 175-176 to deal with Findings and Reasons. The Tribunal found that at the date the applicant lodged his visa application, 12 March 2003, he held a subclass 485 visa. The Tribunal found that the applicant must demonstrate exceptional reasons for a grant of a subclass 572 visa, as required by cl.572.227(c). The Tribunal said:

    “22.  I accept that the applicant wishes to study in Australia which would likely assist him in business or employment prospects in the future.  I accept that if the visa is refused, the applicant most likely would have to return to India without completing his current course of study.  I accept this would cause him embarrassment with his family and his village, and he would be inconvenienced and incur expense and may have to endure a period of separation from his wife if she chose to remain in Australia. I accept that if he wished to apply for a student visa from India, he would incur expense, delay and would need to satisfy the criteria for the visa.

    23.  ‘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.’

    24.  The matters raised by the applicant and his representative are not, in my view, exceptional reasons for the grant of a Subclass 572 visa, either singularly or cumulatively, which would justify the grant of the visa.  My principal reason for coming to this conclusion is that the applicant has chosen to undertake study in Australia on the premise that he would be granted a student visa.  The visa was not granted to him and his argument subsequent to that refusal is that he may now be embarrassed or inconvenienced or incur expense or that he should just be given a chance to finish his study before going home all fall flat in light of the reality that he has undertaken a course of action in circumstances where he did not secure the correct visa to enable his stay in Australia to do what he seeks.  In other words, he is the author of his own misfortune.  There is nothing exceptional about that.”

11. The Tribunal went on to find that the applicant was not entitled to the visa he sought. 

12. The Tribunal’s analysis of the law was, in my view, clearly correct. The Tribunal relied upon authority in Kim v Minister for Immigration and citizenship [2008] FMCA 1577, and the appeal upholding that decision in Kim v Minister for Immigration and Citizenship [2009] FCA 161. The Tribunal, in my view, extrapolated from the two decisions in Kim uncontroversially and accurately. Relevant passages of the decision are set out in the written submissions of the first respondent.

13. In my view, the Tribunal was well seized of its task, which was to decide whether or not exceptional circumstances existed such as to justify the granting of the visa the applicant sought.  The Tribunal applied itself to that task, in my view, entirely appropriately, bearing in mind the particular circumstances revealed by the application and the applicant’s evidence to the Tribunal. 

14. I would respectfully say that I would reach entirely the same conclusion as the Tribunal on the facts as disclosed and it is quite clear that the Tribunal did not fall into jurisdictional error in the way in which it disposed of the application.  It follows that the application is without merit and must be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  12 December 2014