Liu v Minister for Immigration
[2014] FCCA 936
•16 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIU v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 936 |
| Catchwords: MIGRATION – Review of decision Migration Review Tribunal decision – Refusal of grant of a Student (Temporary) (Class TU) visa – Applicant failed to establish there were exceptional reasons for the grant of a visa – Application dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth), cl.570.227 |
| Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 Maan v Minister for Immigration and Citizenship& Anor (2009) 179 FCR 581 |
| Applicant: | HAOJIE LIU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1069 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 7 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Mandarin interpreter. |
| Solicitor for the First Respondent: | Mr R. Ray of Clayton Utz |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance. |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
The application filed on 17 May 2013 be dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1069 of 2013
| HAOJIE LIU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Migration Review Tribunal (the “Tribunal”), being MRT Case Number 1109629, a decision of Tribunal Member S. Durvasula dated 23 April 2013, affirming the decision of a delegate of the Minister for Immigration and Border Protection (at the time of the decision the Minister for Immigration and Citizenship) (the “Minister”), to refuse to grant the applicant a Student (Temporary) (Class TU) visa.
In accordance with the Court’s orders made on 18 June 2013 the solicitors for the first respondent, the Minister, were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”), and has been marked Exhibit “A”.
By orders made by the Court on 18 June 2013, the applicant was granted leave to file and serve any additional affidavits upon which he wished to rely. The applicant was also granted leave to file and serve an outline of written submissions fourteen (14) days before the hearing. The applicant elected not to file any affidavit evidence or written submissions.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant is a holder of a Chinese passport (CB 67) and arrived in Australia on 5 July 2007 as the holder of a Temporary Business Entry (Class UC) Subclass 457 visa. The applicant came to Australia as a dependant of his parents. The Subclass 457 visa was granted on 18 June 2007 and expired on 18 June 2011. Since that time the applicant has had a series of Bridging visas.
The applicant’s parents applied for permanent residency on 14 June 2011; however, the applicant was not included in their application. The applicant’s parents were granted Class BW Subclass 856 permanent visas on 21 February 2012 (CB 67 at [11]).
The PRISMS record indicated that the applicant was enrolled at Cambridge Business College. The course, a Cambridge English Language Course (General English) (Elementary to Advanced), commenced on 28 May 2012 and the applicant studied there until 22 June 2012 when the visa was refused (CB 67 at [12]).
The applicant applied for a Student visa on 16 June 2011 on the basis that he was studying Intensive English at Castle College Pty Ltd (CB 67 at [13]).
The Delegate’s Decision
A delegate of the Minister refused the applicant’s visa application on 17 August 2011 on the basis that the applicant did not satisfy clause 570.227 of the Migration Regulations 1994 (Cth) (the “Migration Regulations”). The delegate found that this was the applicant’s first application for a Student visa, and the applicant had to show exceptional reasons in order to be granted a Student visa onshore, which he had not done. The applicant had previously been a dependant on a Subclass 457 visa and this ceased on 18 June 2011 (CB 67 at [14]).
The Tribunal’s Decision
On 14 September 2011 the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant appeared before the Tribunal on 22 April 2013. The applicant stated that exceptional reasons existed in his case. He claimed that he did not have a home in China and that both his parents were in Australia. He claimed that he would not have any financial support if he returned to China and he was not capable of living independently.
The Tribunal noted that the applicant’s parents and younger sister had been granted permanent residency in June 2011. The Tribunal asked why the applicant had not been included on his parents’ application (CB 68 at 18]). The applicant stated that he had originally intended to return to China. He claimed that he went back for a short time but did not like it, so he returned to Australia. The applicant went to China in February 2011 for approximately a month. The Tribunal noted that the applicant’s parents applied for permanent residency in June 2011. When asked as to why he was not included in his parents’ application, the applicant was unable to explain why. He stated that he went back to China in May 2012 and again found that he did not like it so came back to Australia (CB 68 at [19]).
The Tribunal noted that when he returned to China on the two occasions mentioned above, he was provided with food and accommodation with his paternal grandmother. He also had aunts and uncles and his maternal grandmother in China (CB 68 at [20]).
The Tribunal put to the applicant that he would have family support available to him if he had to return to China. The Tribunal put to the applicant that his parents could support him financially if he had to apply for a Student visa from overseas. The applicant stated that his grandmother had recently had surgery and that she was being looked after by his father’s younger sister. He stated that he did not want to be a burden on his father (CB 68 at [21]).
The Tribunal affirmed the delegate’s decision to the refuse the grant to the applicant of a Student visa on 23 April 2013 and notified the applicant accordingly.
Application before the Court
The applicant sought review of the Tribunal’s decision in this Court by way of application filed on 17 May 2013. At a directions hearing on 18 June 2013, the applicant was granted leave to file an amended application giving complete particulars of each ground of review relied upon by 23 July 2013. Despite being granted leave to do so, the applicant elected not to amend his Application, file any evidence in support or any written submissions. The applicant did, however, have an attachment to the Application titled “Attachment to Grounds of Application”. Under the heading “Orders sought by the Applicant” were two paragraphs. Acknowledging that the applicant is a self-represented litigant I will treat these paragraphs as submissions of the applicant and are set out below in the “Applicant’s Submissions”
The Application seeks the following Final Order, which is selected from the list of standard orders:
An order that the decision of the tribunal or Minister be quashed.
The applicant attached to the Application a document headed “Attachment to Grounds of Application”. The first heading is “Orders Sought by Applicant” which are referred to below. On the lower part of the Attachment is a heading “The Grounds of the Application are”:
1. I am a Chinese citizen and wish to be a genuine student. I can not apply for my student visa offshore as I cannot get any support and make a living in my home country. (Ground 3)
2. I always obey my visa condition and never breached it. I want to continue my study in Australia, however immigration and MRT would not allow me to apply in Australia. (Ground 4)
3. It is not fair for my visa to be refused, I hope the federal court can give me a fair decision based on my compelling situation.(Ground 5)
Applicant’s Submissions
As stated above, the “Orders sought by Applicant” which I have taken as submission are as follows:
1. I disagree with Immigration and MRT’s decision. They did not consider that I have compelling and companionate(sic) grounds to lodge my student visa onshore. I provided them my actual facts for unable to apply for student visa offshore as my whole family are Australian PR. (Ground 1)
2. Immigration should granted my visa for student visa and allow me to continue my study here. I am very disappointed with the MRT members attitude towards my review application and my actual difficult situation. (Ground 2)
At the hearing the applicant confirmed that he had not filed an amended application or written submissions, but elected to give his submissions orally. The applicant stated that he would like to apply for a Student visa. He claimed that he does not have relatives in China. He then stated that they live in a remote area and that he does not get in touch with them very often. The applicant claimed that he had never lived independently and if he was to return to China he would need financial support from his father.
The applicant claimed that currently he can stay in a house with his father in Australia. He stated that the living expenses in China are very high. The applicant stated that his mother’s brother had become ill and subsequently died, and that this left his mother “very weak”. He claimed that he wanted to study in Australia to look after his mother.
Minister’s Submissions
The Minister contends that the applicant makes five complaints in the Application, none of which clearly allege legal error on the part of the Tribunal. The applicant has not filed any submissions, so the Minister cannot adequately respond to the complaints. In any event the applicant’s main objection seems to be with the merits of the Tribunal’s decision. The Minister submits that this is insufficient to establish jurisdictional error.
The Minister argues that at the time of the applicant’s visa application, the Student visa comprised of a number of subclasses. The visa subclass varied according to the type of course an applicant wished to enrol in. In the present case the applicant nominated his intended course of study as “Intensive English” at Castle College Pty Ltd (CB 5). The relevant subclass of visa is therefore subclass 570, “Independent ELICOS Sector”.
The primary criteria for a Subclass 570 visa are set out in Part 570 of Schedule 2 to the Migration Regulations. In addition, where the visa applicant makes their application in Australia and has not previously held a Student visa, the applicant must satisfy cl.570.227 of Schedule 2 to the Migration Regulations.
Clause 570.227 has two limbs that must be satisfied at the time of the application. The first limb of cl.570.227 requires the applicant to hold one of a set of specified visas. The Tribunal found that the applicant did hold such visa, which was a Business visa (CB 69 at [24]).
The second limb of cl.570.227 requires that the applicant establish that there are exceptional reasons for the grant of a Student visa. It is this requirement that formed the basis for the delegate’s and the Tribunal’s decisions. The Tribunal found that the applicant had not established that there were ‘exceptional reasons’ for the grant of the visa. The applicant claimed at his hearing before the Tribunal that he had no family or financial support in China, and was not capable of living independently of his parents (CB 68 at [17]). The Tribunal did not accept that the applicant would not receive any support if he had to return to China to apply for the Student visa or that he was incapable of living independently. In rejecting the applicant’s claims, the Tribunal referred to the applicant’s oral evidence that he had visited China in 2011 and 2012, and on both occasions the applicant’s parents paid for his flights and his relatives “gave him free food and accommodation”. The Tribunal found that this evidence contradicted the applicant’s prior claims (CB 69 at [27]-[28]).
The Minister contends that the Application does not clearly distinguish between the ‘Orders Sought’ and the ‘Grounds of Application’. Both sections contain complaints about the Tribunal’s decision and are identified as the Five Grounds.
The Minister submits that the Five Grounds ask the Court to engage in merits review. The applicant’s true complaint is not that the Tribunal committed legal error, but simply that the Tribunal did not accept he had ‘exceptional reasons’ for making his application from Australia. This is not a proper basis for judicial review of the Tribunal’s decision. As was put by Wilcox J in Nikac & Ors v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65 at [81], “like beauty, exceptional circumstances lie in the eye of the beholder”. It has been held by the Full Federal Court that ‘exceptional circumstances’ are a matter of fact for the Tribunal that are not reviewable by the Court where they were open to the Tribunal on the material before it: Maan v Minister for Immigration and Citizenship & Anor (2009) 179 FCR 581. There can be no doubt in the present case that the Tribunal’s conclusion as to exceptional reasons was open to it on the evidence before it.
The Minister argues to the extent that the applicant’s grounds can be interpreted as alleging legal error, such error cannot be established.
The Minister submits that Ground One could be interpreted as an allegation that the Tribunal failed to consider the applicant’s claims. This is not correct. The Tribunal expressly considered and rejected the applicant’s claims to possess ‘exceptional reasons’: Maan (supra). The applicant has not, and cannot identify a claim that was not considered by the Tribunal.
The Minister claims that Ground Two complains about the “MRT member’s attitude”. To the extent this ground can be construed as an allegation of bias, it is an unparticularised and unevidenced allegation. Bias must be strictly alleged and proved: Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507 and SZQFV v Minister for Immigration and Citizenship & Anor [2011] FMCA 927. The applicant has not done so. The applicant has not put a transcript or other evidence of the conduct of the Tribunal hearing before the Court, and an allegation of bias is not sustainable on the face of the Tribunal’s Decision Record.
The Minister submits that Grounds Three and Four cannot be constructed as alleging legal error.
Ground Five of the Application could be construed as alleging a breach of procedural fairness. The Tribunal plainly complied with the procedural fairness obligations codified in Division 5 of Part 5 of the Migration Act, so no specific breach has been alleged.
At the hearing Mr Ray, appearing for the Minister, submitted that the applicant’s Application is in substance a request for merits review. Mr Ray brought the Court’s attention to the decision of Smith FM in Kim v Minister for Immigration & Anor [2008] FMCA 1577. Mr Ray contends that after examining the nature of the test in cl. 570.227 of the Migration Regulations Smith FM found that exceptional reasons was indicative of a relatively unbound discretion and the effect of his finding is set out at [30], where he stated:
30. Rather, the decision-maker is required 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.
Mr Ray then took the Court to Kim v Minister for Immigration and Citizenship [2009] FCA 161 where Buchanan J, in upholding Smith FM’s interpretation of exceptional reasons, stated at [16]:
16. However unwelcome the decision of the MRT might be to the appellant and regardless of whether minds might differ about how the factors relied upon by the appellant might, in individual cases, be assessed the matters relied upon by the appellant and the assessment of her circumstances were matters for the judgment of the MRT. They are not matters for judgment by this Court and were not matters for judgment by the FMCA. The appellant was required to establish, to the satisfaction of the relevant decision maker, that there were exceptional circumstances for her to be granted a subclass 573 visa. She did not do so. She has now failed, notwithstanding the careful submissions on her behalf, to establish any jurisdictional error by the MRT or any error by the Federal Magistrate.
Mr Ray submits that the oral submissions made by the applicant at the hearing and Five Grounds in the Application are caught by the above statement as they do not disclose allegations of legal error reviewable by this Court.
Consideration
It was explained to the applicant that the only power that this Court has is to review the decision of the Tribunal to see whether the Tribunal has carried out its role according to law and that the material that the Court is limited to looking at is the contents of the Court Book (which is the evidence filed in the proceedings) and in particular the Decision Record. This Court cannot undertake a merits review of whether he should, in fact, have been granted a visa.
As with many applicants in this jurisdiction, the applicant in these proceedings is a self- represented litigant with a limited understanding of litigation generally and, particularly, this Court’s rules and the legislative framework in which he seeks to bring these proceedings. I note the recent observations of his Honour Judge Harman in Deacon v Castle [2013] FCCA 691, which were proceedings brought under the Family Law Act 1975 (Cth). His Honour’s observations appear at [75]-[78] where he stated:
75. Whilst it is common for parties before this court to be self represented, the same rules of practice, procedure and, importantly, evidence apply to them as apply to parties who are capably legally represented.
76. One of the purposes for the inclusion of Division 12A may well have been to seek to obviate against difficulties faced by self represented litigants in preparing material to be filed with the court in support of their application or response. However, the requirement of due process can never obviate against the equal dispensation of justice.
77. The creation of different or unequal requirements as regards the production of evidence, by represented and self represented parties, is inappropriate. To countenance same would be to deny due process to the represented party and, in reality, both parties though especially to the party who is legally represented and required to answer a case which is potentially unanswerable.
78. The rules of evidence have evolved over a significant period and have since 1995 been codified by Parliament. The rules of evidence are designed to ensure the integrity of the process and to ensure that each party before the court is able to do that which is enshrined within our legal process (as far back as Magna Carta) and being the right to properly meet and test a case which one is called upon to answer.
This lack of understanding has caused the applicant some difficulties in the preparation of his case, particularly in respect of:
a)The fact the Court is carrying out its function of judicial review of the Tribunal’s decision and that these proceedings are not further phases of presentation of the Student visa application to the Minister’s delegate or the Tribunal;
b)The fact this Court is not conducting merits review;
c)The concept and identification of jurisdictional error in the conduct or decision record of the Tribunal; and
d)Allegations of errors which, in effect, are purely expressions of disappointment with the outcome of his respective visa application and subsequent and related proceedings in the Tribunal.
In preparing these reasons I wish to make it abundantly clear to the applicant that the Court appreciates the difficulties he faces in the preparation and presentation of his case as a self-represented litigant. In these circumstances, I note the observations of Lucev FM (as he was then) in Reynolds v Minister for Health & Anor (2010) 247 FLR 425 at [60]. His Honour stated:
60. The role of a federal court in relation to self-represented litigants has been broadly described by the Federal Court as a requirement to be fair Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28 at para 24 per Graham J, citing Malouf v Malouf (2006) 65 NSWLR 449 at 452 per Bryson JA. That does not entail being unfair to the other party. Such guidance as is provided by a federal court to a self-represented litigant is not for the purpose of advantaging the self-represented litigant in the litigation, or disadvantaging the other party or parties, but rather to ensure that the case proceeds, so far as is possible, in a manner consistent with the interests of justice Brehoi at paras 6–7 per Beaumont J.
Lucev FM also stated at [19]-[20] of Reynolds:
19. A hearing of this matter is likely to take at least three days, and possibly more, even with orders requiring the evidence-in-chief of the parties to be filed by way of affidavit.
20. This matter is not “a relatively simple one” Walker v Aztec Steel Pty Ltd [2010] FMCA 68 (Aztec Steel).. in which it might be appropriate to allow a non-lawyer to appear, as was the case in Aztec Steel where the company was allowed to be represented by one of its officers, having regard to:
a) the matter being a relatively simple one;
b) the officer of the company having been allowed to appear at the first directions hearing in the matter;
c) the applicant being initially self-represented, and then not appearing at the final hearing; and
d) the objects of the FM Act and the FMC Rules Aztec Steel at para 9 per Lucev FM.
In determining the approach that should be adopted in dealing with this application I agree with the submissions prepared by Mr Ray, representing the Minister, particularly at [20]-[26]. The issue that does emerge, although not specifically pleaded, is whether the Tribunal failed to take into account the applicant’s “exceptional circumstances” when assessing whether the applicant satisfied cl.570.227 of Schedule 2 of the Migration Regulations.
In the Tribunal’s Decision Record under the heading “Claims and Evidence” at [8]-[14] it sets out a summary of the applicant’s circumstances and the Student visa he was pursuing. As the applicant was onshore, it was a requirement for him to show “exceptional reasons” in order to be granted a Student visa. The Tribunal notes that when the applicant applied to the Minister, he did not provide any exceptional reasons, nor did he provide any documents in support of his claim when he appeared before the Tribunal. A summary of the possible claims of “exceptional reasons” are set out in the Decision Record at [17]-[21].
The term “exceptional reasons” is not defined in the migration legislation, however, it has been addressed in a number of decisions of this Court and the Federal Court which are discussed below.
The Oxford English Dictionary defines the word “exceptional” as:
Of the nature of or forming an exception; out of the ordinary course, unusual, special.
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 unidentified. In the latter situation, the decision-maker may appear to be given a very broad discretion to identify and weigh the considerations upon when deciding whether to dispose with the normal rules or not.
In Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at [18] his Honour French J (as he then was) refers to the authorities which indicate the usual approach of a Court on judicial review of dispensing with the normal rule. His Honour stated:
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) 7 ALD 670 ; 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 ; 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 ; 14 IR 341. This is just another way of pointing to its instrumental character. That application is not to be confined by precise limits or rules: Beadle (above) at ALR 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: Re Hutchins; Jarlas Pty Ltd v FCT (1987) 14 FCR 510 ; 74 ALR 455 at 473 ; 18 ATR 987. 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) 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 ; 27 ALD 309 ; 108 ALR 322. In Beadle (above) 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.
In Boscolo v Secretary, Department of Social Security (supra), the Secretary of the Department of Social Security had power to allow a welfare beneficiary to receive a higher single rate of pension, rather than the lower rate applicable to couples, if satisfied “that the person should, for a special reason in a particular case not be treated as a member of a couple for the purposes of this Act”. French J said that this required the decision-maker “to focus on the position of the one person, not the couple and to assess whether that person should for a special reason not be treated as a member of the couple.” It was found that the Tribunal had failed to focus on the relevant circumstances in its consideration and the matter was remitted.
There is a diverse range of legislation that contains provisions for a decision-maker to address “exceptional circumstances/exceptional reasons” and a number of authorities suggest that a Court should examine legislation which confers the “exceptional circumstances/reasons dispensing power”, so as to identify the normal “rule”, a class of person who is subject to it, and the purposes of making them subject to the normally applying rule. In matters where this is discernable, it may provide a logical starting point for the consideration why an exception should be made for a particular person. The legislation may show that it is intended to apply a particular focus in an assessment of the applicant’s circumstances, or of some extrinsic circumstance, or a comparison with the circumstances of other people to decide whether the applicant has present “reasons” which justify making an exception to the normal rule.
The legislative context of the present criterion is a scheme to regulate entry and residence in Australia through the grant of visas “in the national interest”. In effect, an unconfined construction would treat the words “exceptional reasons” for the grant in cl. 570.227 as providing no more than the decision-maker may give effect to any rational reason for dispensing with the preclusion which would otherwise apply to the applicant. The “reasons” could be found in the personal circumstances of the visa applicant which have a rational bearing on the discretion to grant him or her the visa. The power may also allow a decision-maker to find sufficient justification for lifting the preclusion arising from a wide range of other circumstances or considerations.
Mr Ray has assisted the Court in his submissions, identifying the primary criteria for a Subclass 570 visa and, in this case, where the visa applicant makes his application in Australia and has not previously held a Student visa, the applicant must satisfy cl. 570.227 of the Migration Regulations. Two limbs of that clause must be satisfied at the time of the application, namely:
a)That the applicant hold one of a set of specified visas; and
b)That the applicant establishes that there are exceptional reasons for the grant.
The first limb succeeds on the basis that the applicant formerly held a Business visa, now expired and has the current status of a Bridging visa, neither of which appears on the specified list in cl. 570.227(c). It is the second limb, being the establishment of exceptional reasons that appears to be in dispute.
I agree with Mr Ray’s submissions, set out at [25] above, which deal with the failure of the applicant to claim or establish that there were exceptional reasons that would in his case justify the grant of the visa.
Any claim that the Tribunal was not focused on the issue of exceptional reasons cannot be sustained. The Decision Record clearly states the legislative framework that applies. Under the heading Claims and Evidence the personal circumstances of the applicant are clearly stated. In the Findings and Reasons of the Decision Record, the Tribunal specifically addresses whether the applicant satisfies the requirement of cl. 572.227. At [26], [27] and [28] of the Findings and Reasons the Tribunal member recites the applicant’s present circumstances, the situation that has led to the position that his parents are now resident in Australia on valid visas, and the links that he has in China to other family members. The Tribunal considered the applicant’s circumstances, both individually and cumulatively, and focused on whether exceptional reasons necessary to satisfy the requirements of cl. 570.227 existed. The Tribunal was not satisfied that the level of satisfaction required to meet the requirement was reached.
I agree with the written submissions prepared by Mr Ray at [27] above, which address the issue of exceptional circumstances and the authority of Maan (supra) at [51] where the Full Court:
51. Although the expression “exceptional circumstances” is not defined in the regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. (cf Baker v R (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]–[25]).
In Maan (supra) the Court found in respect of the issue of exceptional circumstances there had been a finding of fact by the Tribunal, this was clearly open to the Tribunal and revealed no jurisdictional error on its part.
The decision in Maan (supra) has been considered, followed and applied in a number of cases before this Court and the Federal Court. In Patel v Minister for Immigration and Citizenship [2010] FCA 918, his Honour Marshall J made the following observations at [16]-[17]:
16. The Federal Magistrate considered that Mr Patel was seeking a review of the merits of the Tribunal’s finding of fact that exceptional circumstances did not exist in Mr Patel’s case. At [20], her Honour said:
...I do not consider that the Tribunal’s decision falls into the category of case that was so unreasonable that no reasonable decision maker could have made it. It simply appears that the Tribunal assessed the claims that the applicant made and formed a view that was open to it, namely, that they did not constitute exceptional circumstances.
17. The above approach by her Honour does not reveal any appealable error. The Tribunal did not fall into jurisdictional error by making findings of fact that were open to it on the evidence before it, namely that Mr Patel’s accommodation situation and news about his grandfather’s death did not constitute exceptional circumstances beyond his control, which excused his failure to attend his course. As the Full Court said in similar circumstances in Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 at [52]:
...findings of the Tribunal in respect of the exceptional circumstances submitted by the appellant were findings of fact, clearly open to the Tribunal, and do not reveal jurisdictional error.
More recently, in the decision of Hasim v Attorney-General of the Commonwealth [2013] FCA 1433 his Honour Greenwood J when considering an offense of “people smuggling”, carried out a review of the terms “exception” and “exceptional” in respect of their application in the Crimes Act 1900 (NSW). As indicated above, the term exceptional appears in a number of different pieces of legislation, where the term itself is not defined. The Hasim decision examines the term in a broader context, but is of assistance when applying the term in respect of the Migration Regulations. His Honour makes the following observations at [52]-[60]:
52. The New Oxford Dictionary of English defines the terms “exception” and “exceptional” in this way:
exception noun
a person or thing that is excluded from a general statement or does not follow a rule
- phrases the exception proves the rule proverb the fact that some cases do not follow a rule proves that the rule applies in all other cases. take exception to object strongly to: be offended by:
exceptional adjectiveunusual: not typical: ... unusually good: outstanding.
53. Although the term “exceptional circumstances” is not defined in the Crimes Act or Regulations made under that Act, Lord Bingham of Cornhill CJ gave emphasis to the “ordinary familiar” nature of the adjective “exceptional” in Reg v Kelly (Edward) (C.A.) [1999] UKHL 4; [2000] 1 Q.B. 198 at 208, BD. In that case, Lord Bingham CJ, speaking of the expression “exceptional circumstances” in s 2 of the Crime (Sentences) Act 1997 (UK) (circumstances required for a decision not to impose a sentence of life imprisonment), said this at p 208:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
54. See also Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573, Callinan J at [173][175].
55. The Full Court of this Court in Maan v Minister for Immigration and Citizenship [2009] FCAFC 150, Dowsett, Greenwood and Collier JJ at [51] found the observations of Lord Bingham CJ in R v Kelly of assistance in understanding the correct approach to the content of the term “exceptional circumstances” although of course the content of the term must be determined having regard to the statutory context within which it appears.
56. In Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648, McHugh J construed the term “exceptional circumstances” in the following context. At the relevant time, s 12 of the Migration Act1958 (Cth) provided that the Minister may order the deportation of a noncitizen who has been convicted in Australia of an offence for which he or she was sentenced to imprisonment for a period of not less than one year, and who, at the time of the commission of the offence, has been present in Australia as a permanent resident for less than 10 years. In May 1983, the Minister gave Parliament details of a policy, the Criminal Deportation Policy, which would guide decisions made under s 12 of the Migration Act. The policy set out broad criteria to be applied. The policy noted that a person had a right of appeal to the Administrative Appeals Tribunal (“AAT”) against a decision that he or she be deported.
57. Paragraph 4 of the policy stated that the recommendations of the AAT should be overturned by the Minister “only in exceptional circumstances and only when strong evidence can be produced to justify his [or her] decision”. The policy required the Minister to table in Parliament a statement of reasons if he or she decided to deport a person contrary to the recommendations of the AAT.
58. In that context, his Honour said this at p 684:
No doubt the term “exceptional circumstances” is vague. But since the policy declares that recommendations of the AAT will be overturned only in exceptional circumstances and only when strong evidence can be produced to justify the Minister’s decision, mere disagreement with the findings or recommendation of the AAT does not constitute “exceptional circumstances”. The reference in the policy to “exceptional circumstances” and “strong evidence ... produced to justify” a departure from the recommendation of the AAT suggests that the policy contemplated that ordinarily the Minister would not reject a recommendation unless further evidence came into his or her possession. It would be going too far, however, to hold that the Minister will always breach the policy in refusing to follow a recommendation of the AAT unless he or she is in possession of evidence which was not before the AAT. The terms of the policy should not be read pedantically. If the critical findings of the AAT were unreasonable, for example, the Minister would be entitled to assert that the case was exceptional and that strong evidence existed to overturn the AAT’s recommendation.
59. In applying that conception to the circumstances of the case before McHugh J, his Honour also said this at p 684:
In the present case, however, the findings of the AAT were based and reasonably open on the evidence. Whether or not the Minister disagreed with them, they cannot be described as unreasonable. Moreover, it is not easy to see how the four matters to which I have referred constituted “exceptional circumstances” or “strong evidence”. In the end, however, it is for the Minister and not for the Courts to say whether there were “exceptional circumstances” and “strong evidence” available to justify his decision.
60. The Minister’s consideration of exceptional circumstances under the Criminal Deportation Policy was also considered in Nikac v Minister for Immigration and Ethnic Affairs [1988] FCA 400; (1988) 20 FCR 65 by Wilcox J. Three reasons were identified by the Minister as demonstrating to the satisfaction of the Minister “exceptional circumstances”. One factor was a risk of recidivism to the Australian community. Wilcox J observed that in relation to that matter the question was always the extent of the risk and the nature of the offence likely to be committed if the person offended again. Wilcox J expressed “extreme difficulty” in seeing how the factors going to that matter identified by the Minister could amount to “exceptional circumstances” but said this at p 81:
Notwithstanding my own view about the Minister’s conclusions that the circumstances in the [case of Mr Nikac] are “exceptional”, I do not think that it is possible to say that the Minister’s contrary view is devoid of plausible justification. The term “exceptional circumstances” postulates a criterion which is both vague and subjective. Every case is different, so that there are always some aspects of a case which may be regarded as exceptional. The question inevitably arises: exceptional compared with what? Even if it be conceded that there is nothing very exceptional about drug offences appearing upon a list of convictions, there will always be differences in the circumstances of those offences. For example, I would not myself have thought that the particular offences committed by Mr Nikac were of such a nature as to constitute a reason for taking the unusual step of declining to accept the recommendation of the Tribunal, by whom both the offences and all the other relevant circumstances were considered. But it is impossible to categorise a different view as being devoid of plausible justification. Like beauty, “exceptional circumstances” lies in the eye of the beholder.
(Emphasis added)
Mr Ray also directed the Court’s attention to the decisions in Kim (supra), being the primary decision of his Honour Smith FM and the subsequent appeal before his Honour Buchanan J. Those decisions addressed the interpretation of “exceptional reasons” by the Court (see [32]-[34] above). His Honour Buchanan on appeal made the following important observations at [5]-[6] and [9]:
5. On the present appeal no issue is taken with the approach of the MRT that “exceptional reasons” mean reasons that are unusual or out of the ordinary. That approach is in accordance with authority (see eg Hatcher v Cohn (2004) 139 FCR 425 at [49]–[50], Cohn v Hatcher (2005) 146 FCR 275 at [47]–[48], [63]).
6. A decision of the MRT is only reviewable judicially for jurisdictional error. Judicial review is not available to review the merits of decisions of the MRT or to substitute some different judgment about the factors which it assesses and the weight which it gives to them.
…
9. The Federal Magistrate examined the statutory context set by the Migration Act 1958 (Cth) (“the Act”) and a number of authorities and concluded that there was no identifiable definition which operated to confine the discretion of a decision maker required to decide whether exceptional reasons had been established for the grant of a subclass 573 visa.
The important aspects when determining of whether exceptional circumstances/reasons are established are effectively summarised in the decision of Maan (supra) per Dowsett, Greenwood and Collier JJ where their Honours found “the findings of the Tribunal in respect of the exceptional circumstances submitted by the appellant were findings of fact, clearly open to the Tribunal, and do not reveal jurisdictional error”.
In respect of the other grounds that have not been pleaded but have been identified as the basis of possible complaint with the Tribunal Decision, I agree with the written submissions prepared by Mr Ray that the alleged errors claimed by the applicant cannot be construed as jurisdictional errors and there is no basis on which they can be sustained. Consequently, the Application should be dismissed with costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 16 May 2014
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