Narendran v Minister for Immigration
[2019] FCCA 1617
•13 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NARENDRAN v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1617 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Student visa applied for onshore – necessity for “exceptional reasons” to be established – application for judicial review of decision of Administrative Appeals Tribunal – applicant did not claim or assert any “exceptional reasons” at Tribunal hearing – Administrative Appeals Tribunal did not find that the applicant satisfied the “exceptional reasons” test – applicant fails to establish jurisdictional error affecting the decision of the Administrative Appeals Tribunal – application dismissed. |
| Legislation: Corporations Law, s.597 Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510 ABT16 v Minister for Home Affairs [2019] FCA 836 An v Minister for Immigration (2007) 160 FCR 480 Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34 Shashidar v Minister for Immigration & Border Protection [2017] FCA 253 SZNVX v Minister for Immigration & Citizenship (2009) 112 ALD 475 |
| Applicant: | SARAVANA KUMAR ANGAPPA NARENDRAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2571 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 6 June 2018 |
| Date of Last Submission: | 20 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr J. McGovern |
| Solicitors for the First Respondent: | Clayton Utz |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 14 August 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2571 of 2017
| SARAVANA KUMAR ANGAPPA NARENDRAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of India aged 36 years, having been born on 25 February 1983.
By Application filed in this Court on 14 August 2017, he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 11 July 2017, which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister of Immigration and Border Protection (Minister) dated 26 July 2016, refusing to grant to him a Student (Temporary) (Class TU) (Subclass 572) visa (Student visa).
Background
The Applicant arrived in Australia on 21 January 2016 on a Visitor (Class FA) (Subclass 600) visa (Visitor visa). He then applied through his registered migration agent for the Student visa onshore on 17 May 2016.
Attached to his Student visa application form was a Letter of Offer from the Australian Academy of Management & Science Pty Ltd advising that the Applicant had been provisionally accepted as an international student in the following courses:
a)Certificate III in Commercial Cookery;
b)Certificate IV in Commercial Cookery; and
c)Diploma of Hospitality Management.
At the time of the lodgement of his Student visa application the Applicant did not satisfy cl.572.211(4) of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations) because he was not the holder of a visa subclass referred to therein. It therefore followed that at the time of decision the Applicant was required by cl.572.221(1) to satisfy a number of other criteria, including cl.572.227 which required that the Student visa application be made in Australia and, as the Applicant was subject to the highest assessment level for his proposed course of study, that he establish “exceptional reasons for the grant of a Subclass 572 visa”.
Relevantly, cl.572.227 of the Regulations provided as follows:
572.227
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 or subclasses:
….
(T) Subclass 600 (Visitor);
….
(ii)…
(iii)…
(iv) …
the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.
(emphasis added)
There was no doubt that the Applicant had made his Student visa application in Australia, held a Visitor visa and was subject to the highest assessment level for his proposed course of study. That left him with the need to establish exceptional reasons for the grant of the Student visa. The word “exceptional” is a simple non-technical word which means “unusual” or “out of the ordinary”: see Lindgren J in An v Minister for Immigration (2007) 160 FCR 480 at 482 [7].
In these circumstances, by letter dated 23 May 2016 the Department of the Minister (Department) asked the Applicant to provide a statement setting out his exceptional reasons for the grant of the Student visa in the following terms:
Request Detail
Initial student visa while in Australia
As you are an Assessment Level 3 applicant, you are not able to be granted an initial student visa in Australia unless exceptional reasons exist for the grant of the visa.
Exceptional reasons may include but are not limited to:
·the grant of the visa would be of benefit to Australia
·the applicant is a family member of a departing temporary resident, has been successfully studying in Australia for at least one (1) year and wishes to complete their current course of study or undertake further studies
·the applicant is a holder of an Occupational Trainee (subclass 442) visa, a Visiting Academic (subclass 419) visa, or a Training and Research (subclass 402) visa in the Occupational Trainee stream or the Research stream, and wishes to change to a student visa to undertake further studies in Australia.
Please provide a statement explaining your exceptional reasons for the grant of an initial student visa in Australia and any supporting evidence.
By email dated 7 June 2016 the Applicant’s registered migration agent forwarded to the Department a two page typed Response also dated 7 June 2016 (Response) from the Applicant which the registered migration agent stated set out the Applicant’s “compelling reasons”.
The “compelling reasons” given in the Response were in substance as follows:
a)he was living in India and unable to apply for a Student visa in India as he felt that it wasn’t necessary for him at the time and that at first he believed he only required a Tourist visa, thinking it was only going to be a normal visit to Australia;
b)however, shortly after he had applied for the Tourist visa to come to Australia, the city where he lived in India suffered from a major flood lasting more than six weeks which has left him feeling very vulnerable;
c)on 15 December 2015 he obtained the Tourist visa to visit Australia and arrived in Australia on 20 January 2016 but was in a confused condition and went back to India on 27 January 2016 where he got sick and lost sleep;
d)he came back to Australia on 2 March 2016 and now feels secure and safe and that the grant of a Student visa would make changes to his life;
e)he is afraid to even think about what he had to go through back in India and now has opportunities available to him that he would never have had back in India and he feared for the sake of his own life and his family and wanted to make a fresh start in life “learning new things, given new opportunities that I know I could use for the better of my life”; and
f)as he had worked in the hospitality industry in Australia he would like to study a commercial cookery course in Australia, and requested the authorities to grant him the Student visa “for my safe and secure life”.
Decision of Delegate
On 26 July 2016 the Delegate refused to grant a Student visa to the Applicant.
In his Decision Record the Delegate noted and reproduced a number of paragraphs from the Response and stated that he had taken it into consideration, but that it did not satisfy him that the Applicant had exceptional reasons for the grant of a Student visa and accordingly the Applicant did not meet cl.572.227.
The Delegate then noted that the Applicant was able to apply for a Student visa outside of Australia, but that he had not established exceptional reasons for the grant of a Student visa onshore. The Delegate proceeded in his Decision Record to note examples of possible exceptional reasons, but held that they did not apply to the Applicant’s position and circumstances.
The Delegate then considered the Student visa application against other subclasses of Student visas, but found that the Applicant did not satisfy the criteria for them either.
Decision of Tribunal
The Applicant lodged an application for merits review with the Tribunal through his registered migration agent on 10 August 2016 and forwarded a copy of the Decision Record of the Delegate to the Tribunal at the same time.
By letters dated 15 August 2016 and 6 June 2017 the Tribunal invited the Applicant to provide any further material or written argument which he might wish the Tribunal to consider, but he did not respond to these invitations. On 11 July 2017 the Applicant appeared before the Tribunal to give evidence and present arguments.
As recorded by the Tribunal at [10] of its Decision Record, the Applicant did not give to the Tribunal at the hearing any exceptional reasons on which he relied:
[10]The Tribunal gave a brief summary of what exceptional reasons may be. It gave an example where argument could be made out that bilateral relations would be enhanced between Australia and India in the form of the applicant’s participation in some type of student scholarship or student [exchange] program. It explained that this was only an example and could he think of any exceptional situation relating to himself which might satisfy such a test. There was a pause but he replied that he could not think of any.
In the result the Tribunal gave an oral statement of its decision on 11 July 2017, and on the same date published its written Decision Record.
At [3] – [5] of its Decision Record the Tribunal set out the relevant criteria to be satisfied for the grant of a Student visa, and noted that the Applicant had to establish exceptional reasons.
In the result the Tribunal found that the Applicant did not meet the exceptional reasons test, and affirmed the decision of the Delegate not to grant the Student visa to the Applicant.
At this point it is appropriate to note, with respect to the rationale for cl.572.227 and the meaning of ‘exceptional reasons’, the decision of Murphy J in Shashidar v Minister for Immigration & Border Protection [2017] FCA 253 at [21] – [26]:
[21] I was taken to nothing in the Act or Regulations to explain the underlying policy rationale for the requirement for exceptional reasons in cl 572.227, but I conclude from its terms and context that it is aimed at broadly restricting the availability of initial student visas for persons who apply for a student visa having entered Australia on another visa. Construed in the context of the usual or ordinary criteria for an initial student visa in cl 572.223, and understood having regard to the purpose of imposing greater restrictions when an application for such a visa is made by a visa holder who is already in Australia, I consider the expression “exceptional reasons” in cl 572.227 must mean reasons that are unusual or out of the ordinary.
[22] This construction is consistent with authority. In Kim (at [5]) Buchanan J reached the same view in relation to the expression “exceptional reasons” in an analogous clause in the Regulations in force at that time.
[23]The meaning of “exceptional” has been the subject of judicial consideration on numerous occasions. In Fay v Fay [1982] All ER 922 at 926 Lord Scarman said of the expression “exceptional hardship or depravity” in legislation dealing with matrimonial causes:
It is not possible to define with any precision what is meant by “exceptional” hardship or depravity. The imprecision of these concepts with the resultant impossibility of definition must have been deliberately accepted as appropriate by the legislature and is itself an indication that the determination of what is exceptional is essentially a matter for the judge. All can be said with certainty is…that the hardship suffered by the applicant (or the respondent’s depravity) must be shown to be something out of the ordinary.
(Emphasis added.)
To similar effect, in Re Washington [1967] QWN 10 Hart J said that “there must be an exceptional as opposed to an ordinary departure from accepted standards of behaviour”.
[24] In Baker v R (2004) 223 CLR 513; [2004] HCA 45 at [173] Callinan J referred with approval to the remarks of Lord Bingham in R v Kelly (Edward)[2000] QB 198 at 208 where his Lordship discussed the expression “exceptional circumstances” in the context of a decision not to impose a sentence of life imprisonment. His Lordship said:
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.
(Emphasis added.)
[25]In Hatcher v Cohn (2004) 139 FCR 425; [2004] FCA 1548 at [49] Kiefel J said of the expression “exceptional circumstances” in the Health Insurance Act 1973 (Cth):
‘Exceptional’ circumstances, in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances.
Her Honour’s approach was approved by the Full Court of this Court in Cohn v Hatcher (2005) 146 FCR 275; [2005] FCAFC 199 at [63] (per Lander J, with the approval of Black CJ and Wilcox J).
[26]The applicant in the present case held a Subclass 600 visa (being one of the subclasses listed in cl 572.227(c)(i)–(iv)) and he applied for an initial Subclass 572 student visa while already in Australia. In my view he was required to satisfy the Minister that there were reasons for the grant of the visa that were unusual or out of the ordinary.
(emphasis added)
Grounds of Attack on Tribunal Decision in this Court
The Applicant relied upon the following Grounds:
1. I applied [for] the student visa in Australia but the immigration refuse my visa on 26 July 2016.
2. I am the genuine student and want to study and I applied AAT for review my case but the AAT did not consider my interest and my attention for study.
3. I am not satisfied with the decision of AAT and DIBP.
4. I went to hearing on 11 July 2017 and represented myself.
5. I am totally unsatisfied about the decision from AAT and DIBP.
6. I am the applicant for judicial review of AAT decision.
7. I am also attaching the Administrative Appeal Tribunal notification of decision on my case dated 11/07/2017.
8. Administrative Appeals Tribunal was unfair to me by not considering my circumstances.
9. I am genuine student and my compelling circumstances to lodge onshore student visa was not considered.
10. Neither DIBP nor AAT considered my genuine compelling grounds for applying onshore student visa.
11. DIBP made error by not assessing my visa application in fairly matter. DIBP did not gave any weightage to my compelling circumstances.
12. Administrative Appeals Tribunal made judicial error by not giving fresh look into DIBP decision. AAT has legal responsibility to give fresh look by considering my circumstances but AAT affirmed the DIBP decision blindly, therefore depriving me from natural justice.
I initially observe that all of the Grounds are put in general and unparticularised terms and amount in reality to an impermissible attempt to invite merits review of the decision of the Tribunal. At the hearing in this Court the Applicant made no submissions in support of the Grounds.
Consideration
Grounds 1, 3, 4, 5, 6 and 7
None of these Grounds constitute an assertion of jurisdictional error. Even in the Applicant’s favour they cannot be transformed into a meaningful assertion of jurisdictional error and are not made out.
Ground 2
This Ground appears to indicate a misunderstanding of the nature of the decision the Tribunal had to make.
The Tribunal was not considering whether or not the Applicant was seeking to genuinely study in Australia, but rather whether or not he satisfied the necessary criteria for the grant of a Student visa.
This Ground fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 8, 9, 10 and 11
The first thing to be said about these Grounds is that the Applicant had to establish exceptional reasons rather than compelling circumstances, but in the Applicant’s favour I will regard his references to compelling circumstances as references to exceptional reasons.
However, the problem for the Applicant is that at the Tribunal hearing he did not claim or assert any exceptional reasons, but rather told the Tribunal “that he could not think of any” exceptional reasons. He has not suggested in this Court that [10] of the Decision Record of the Tribunal is erroneous. He does not suggest that he did in fact assert exceptional reasons at the Tribunal hearing and he does not tender any transcript of the Tribunal hearing, notwithstanding that he had accepted the onus of doing so if he wanted to rely on the transcript by consent order (2) made in this Court on 22 September 2017. He has not in this Court sought to explain or comment upon why he made no claims to have exceptional reasons at the Tribunal hearing. The Tribunal had sent two letters to him inviting submissions in relation to exceptional reasons, but he did not respond to those letters. His evidence at the de novo Tribunal hearing that he could not think of any exceptional reasons effectively abandoned the exceptional reasons earlier asserted in his Response.
In these circumstances there were no exceptional reasons for the Tribunal to consider. After all, it was for the Applicant to make out his case to the Tribunal for the grant of a Student visa, and for the Tribunal to then consider and determine whether it was satisfied with the case presented by the Applicant. As Gummow and Hayne JJ, in connection with a Protection visa, said in Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187]:
[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.
To similar effect the Full Court of the Federal Court of Australia in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at 561 [36] per Gray, Cooper and Selway JJ said:
[36]It is clear that s 425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671.
In Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365 at 413 [199] – [120] Graham J said as follows:
[199]The Tribunal member conducting an inquiry is obliged to be fair. However, the Tribunal is not in the position of a contradictor of a case being advanced by an applicant. In a case such as that brought by the first-named first respondent under her application for review to the Tribunal, it was for her to advance whatever evidence or argument she wished to advance and for the Tribunal to decide whether her claim that she was a refugee, within the meaning of the Refugees Convention had been made out. The Tribunal was not obliged to prompt and stimulate an elaboration which she may have chosen not to embark upon (per Gummow and Heydon JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte S154/2002 (2003) 77 ALJR 1909 at [57]-[58]).
[200]It is no part of the Tribunal’s function to serve as an applicant’s “nursemaid” (see De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364 at [8]; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [36]; R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330 at 345).
Bennett J said in SZNVX v Minister for Immigration (2009) 112 ALD 475 at 481 [29]:
[29]Finally, it is for the appellant to provide to the Tribunal whatever evidence or argument he wishes to advance in support of his claims (Abebe at [187] per Gummow and Hayne JJ). It is not for the Tribunal to make the appellant’s case for him. The Tribunal is not obliged to stimulate elaborations that the appellant did not choose to give or to act as his “nursemaid”…
Finally, as Perry J recently stated in ABT16 v Minister for Home Affairs [2019] FCA 836 at [25]:
Fourthly, the Full Court has held that the Tribunal is not required to engage in “constructive or creative activity” in order to identify an applicant’s claims: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[2004] FCAFC 263; (2004) 144 FCR 1 at [58] (the Court).
I note that the above statements of principle apply whatever may be the literacy of an applicant before the Tribunal. However, lack of facility in the English language cannot have any bearing on the Applicant’s failure in this case to claim exceptional reasons before the Tribunal in circumstances where he had stated in his Student visa application form that his preferred language was English, he appears to have drafted the Response himself, he indicated to the Tribunal in his Response to Hearing Invitation that he did not need an interpreter and he appeared at the Tribunal hearing and at the hearing in this Court without the need for an interpreter.
These Grounds fail to establish jurisdictional error.
Ground 12
I consider that the Applicant has failed to make out that the Tribunal merely “affirmed the DIBP decision blindly”, did not give its own meaningful consideration to the review application or otherwise deprived him of natural justice. The Decision Record of the Tribunal establishes that it came to its own independent decision on the material before it and after meaningful consideration of the merits of the review application.
This Ground fails to establish jurisdictional error.
Any Other Matters Which Could Establish Jurisdictional Error
Obviously the Decision Record of the Tribunal is short. However, that in itself cannot establish jurisdictional error if the Tribunal gave meaningful consideration to all of the relevant issues and claims.
In my view it is clear that both the Tribunal and the Applicant himself understood the necessity for the establishment of exceptional reasons. In the first sentence of [10] of its Decision Record (see [17] above) the Tribunal recorded that at the hearing it “gave a brief summary of what exceptional reasons may be”. The Tribunal was clearly aware of the necessity for the Applicant to establish exceptional reasons but the simple fact of the matter is that the Applicant chose not to seek to do so.
In those circumstances the brevity of the Decision Record of the Tribunal is understandable and does not establish that the Tribunal failed to give proper, genuine and realistic consideration to the Applicant’s claims.
A further matter was raised by the Minister as a model litigant. Mr McGovern, who appeared for the Minister at the hearing, pointed out that at [9], [12] and [14] of the Decision Record the Tribunal erroneously refers to “cl.572.211(3)(b)” as triggering the necessity for the Applicant to establish “exceptional reasons” for the grant of the Student visa. Of course, the reference in these paragraphs should have been to “cl.572.211(4)”, which led within the statutory framework to the Tribunal’s consideration of cl.572.227 and the requirement that the Applicant establish “exceptional reasons”.
Nevertheless, Mr McGovern submitted, and I accept, that this inapposite reference to cl.572.211(3)(b) does not establish jurisdictional error; rather it is an error that has not affected the outcome of the review application before the Tribunal.
The position here is similar to that considered by the Full Court of the Federal Court of Australia comprised of Buchanan, Perram and Rangiah JJ in Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34 at [48] – [50] where the following was stated:
[48] The Tribunal embarked on a review of the delegate’s decision to refuse the grant of a Partner Temporary visa and affirmed that decision. However, the Tribunal’s reasons consistently referred to cl 801.221(2), a provision that is applicable to a Partner Residence visa, not a Partner Temporary visa. The provisions to which the Tribunal ought to have referred are cl 820.211(2) and cl 820.221(1).
[49] While it is apparent that the Tribunal erred by referring to the wrong clause, there are two possible ways of construing that error. The first is that it was a mere clerical error — such an error would not be jurisdictional error. The second is that the Tribunal applied the wrong legislative provision — that would be jurisdictional error.
[50] However, it is unnecessary to decide whether the Tribunal’s error was jurisdictional or non-jurisdictional. That is because the error did not affect the outcome of the application before the Tribunal. The provisions of cl 820.211(2), 820.221(1) and 801.221(2) each contain a requirement that the applicant be the “spouse” of the sponsoring partner. The Tribunal decided that the applicant was never the “spouse” of Ms W as they were never in a “married relationship”, so the outcome of the application would have been the same even if the Tribunal applied the correct provisions, cl 820.211(2) and cl 820.221(1).
In any event there is a principle that even a mistaken assertion of the source of a relevant power or an incorrect assumption about that source does not necessarily invalidate an administrative decision. This principle is illustrated by the decision of the Full Court of the Federal Court of Australia in Mercantile Mutual Life Insurance Co Limited v Australian Securities Commission [1993] 40 FCR 409, where the Australian Securities Commission had mistaken the source of its power in authorising persons to make an application for an order pursuant to s.597 of the Corporations Law, and Black CJ at 412 stated the position of the Australian Securities Commission to be as follows:
It was under no statutory obligation to specify the source of the power under which it was acting and no consequence attached to the specification of a source of power that did not in fact exist.
This principle has been more recently confirmed in by French CJ, Hayne, Kiefel and Bell JJ in Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 at 16 – 17 [34]:
[34]… A mistake by an administrative decision-maker as to the source of his or her power to make a decision does not necessarily invalidate the decision if it is able to be supported by another source of power. Whether it can be supported by the other source of power will depend upon whether that power is subject to requirements which the decision-maker has failed to meet because of his or her belief as to the source of the power or for some other reason. As Heydon J said in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 362 [124]:
“If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power.”
Conclusion
None of the Grounds relied on by the Applicant establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 13 June 2019
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