Perik v Minister for Immigration and Anor (No.2)

[2015] FCCA 3359

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERIK v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 3359

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student Temporary (Class TU) visa – whether the Tribunal allowed the applicant a fair hearing – whether the Tribunal failed to take into account a relevant consideration – whether the Tribunal applied the correct test – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – Application for adjournment – no utility – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth) cl.572.227

Applicant: SAMARJEET SINGH PERIK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1816 of 2015

Judgment of: Judge Street

Hearing date: 15 December 2015

Date of Last Submission: 15 December 2015

Delivered at: Sydney

Delivered on: 15 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms R Krishnan
Australian Government Solicitors

ORDERS

1. The orders made earlier today be set aside.

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $3627.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1816 of 2015

SAMARJEET SINGH PERIK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 2 June 2015 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) Visa.

2. The matter was earlier the subject of an application under r.13.03C(1)(c) due to the absence of the applicant.  The applicant did appear later in the morning and, by consent, the earlier orders, under r.13.03C(1)(c), were set aside.

3. The applicant is a national of India and applied on 5 March 2014 for a temporary work (Class GC) Training and Research visa.  On 11 July 2014 that temporary work (Class GC) Training and Research (sub-class 402) visa was granted to the applicant.

4. That visa contained important information about the visa and what it permitted the applicant to do. That visa expired on 12 March 2015. On 4 February 2015 the applicant applied for a student visa whilst in Australia. The delegate identified, by letter dated 6 February 2015, that the applicant would need to establish exceptional reasons under cl.572.227 in order to be granted the visa. By a decision made on 3 March 2015 the delegate found that there were no exceptional reasons and that the applicant did not satisfy the prescribed criteria for any sub-class of a visa within the Student (Temporary) (Class TU).

5. The applicant sought a review of the decision before the Tribunal and by letter dated 17 April 2015, the Tribunal invited the applicant to appear to give evidence and present arguments on 19 May 2015.  The applicant appeared before the Tribunal on 19 May 2015 to give evidence and present arguments and was assisted by the interpreter and represented by his registered migration agent.  The Tribunal received written submissions at the hearing in which the applicant alleged he had been misled by an Australian based company providing training in India which had encouraged the applicant to come to Australia. 

6. The applicant’s agent contended that these were exceptional reasons.  The Tribunal accepted that the applicant may have been misled by an Australian based educator, but found that was not an exceptional reason. That adverse finding by the Tribunal was open.

7. The Tribunal explored with the applicant why he could not return to India and apply to study. The applicant identified that there was a monetary reason why he did not wish to do so.  At the hearing on 19 May 2015, at which the applicant attended and gave evidence and presented arguments, additional time was sought by the applicant to provide submissions in relation to the applicant's complaint to the ombudsman and Department and to provide a copy to the Tribunal. 

8. The Tribunal provided a further week for the applicant to do so and on 25 May 2015 the Tribunal received written submissions which the Tribunal identified were taken into account.  Those submissions did not however provide a copy of any correspondence to either the Ombudsman or the Department. The submissions did request a further extension to provide more evidence.  The Tribunal decided that no further extension should be granted.

9. The Tribunal found that the applicant did not satisfy cl.572.227 of Schedule 2 to the Regulations and found that there were no exceptional reasons established by the applicant to warrant the grant of a Student (Temporary) (Class TU) visa.

10. The grounds of the application are as follows:

    1. The  Migration  Review  Tribunal  ("Tribunal'')  failed  to  have  regard  to  relevant  consideration thereby denying the applicant procedural fairness

    PARTICULARS

    a) The Tribunal did not apply a proper test to determine the meaning of the term ''exceptional". The Tribunal failed to review relevant case law to determine the meaning of this term. The Tribunal wrongly favoured the Department's Policy Advice Manual in assessing the meaning of this term.

    b) The Tribunal wrongly decided that the applicant circumstances  did not constitute exceptional reasons for the grant of student visa. In doing so, the Tribunal formed a very narrow view of the term "exceptional" which was not the intention of the legislation.

    2.     The decision of the Tribunal is contrary to natural justice.

    PARTICULARS

    a) The intention of the legislative provisions of the Migration Act 1958 relevant for the review of decision is to allow the person natural justice. The Tribunal denied the applicant natural justice by taking into consideration the guidelines in Policy Advice Manual to determine the meaning of exceptional reason. This approach was wrong as the Policy Advice Manual's has no binding effect on the Tribunal. Further the guidelines of this term in Policy Advice Manual is very narrow and not a true reflection of the legislative intentions.

    b)  The Tribunal failed to give adequate time to the Applicant to arrange documents to support the claim for exceptional reasons.

11. In relation to ground 1, a suggestion that there was a relevant consideration that was not taken into account has no substance.  No relevant consideration was identified to make out any jurisdictional error in that regard.  In so far as it is alleged that the Tribunal denied the applicant procedural fairness, it is apparent that the Tribunal complied with the statutory requirements to invite the applicant to attend the hearing to give evidence and present arguments and that the applicant had a genuine hearing.  There is no substance in the proposition that the applicant was denied procedural fairness by the Tribunal. 

12. The reference to the Tribunal not applying the proper test in relation to the meaning of exceptional reasons is without substance.  The Tribunal correctly identified that there was no prescriptive definition of "exceptional reasons" and that the decision-maker has a discretion to address the particular circumstances of the case and it is for the Tribunal to determine whether those reasons are exceptional reasons.

13. There was nothing wrong with the identification of the test by the Tribunal in that regard.  There was no requirement for the Tribunal to summarise case law and, to the extent that the Tribunal identified that it had had regard to the Department guidelines, that was an appropriate matter for the Tribunal to take into account and does not establish any jurisdictional error. 

14. As above, it was open to the Tribunal to find that the applicant's complaint about being misled by an Australian-based company was not a basis upon which there were exceptional reasons for the grant of a Student (Temporary) (Class TU) visa to the applicant.  Nothing raised by ground 1 identifies any jurisdictional error.

15. In relation to ground 2, the assertion that the applicant was denied natural justice is without substance.  It was appropriate for the Tribunal to take into account the guidelines, and there is no substance in the assertion of error that is raised in particular 2(a). 

16. In relation to ground 2(b), it is apparent that the applicant was on notice in relation to the nature of the critical issue that he needed to address from the letter sent by the delegate to the applicant on 6 February 2015, namely, that he had to establish exceptional reasons.  Moreover, it is apparent from the reasons of the Tribunal that during the hearing before the Tribunal on 19 May 2015 it raised with the applicant the breadth of meaning of the term "exceptional reasons" and the scope of the discretion provided to the Tribunal in determining the circumstances of a particular case. 

17. The only grounds upon which the applicant requested one week to put on further material was by reference to a proposition he was making a complaint to the Ombudsman and the Department.  As the Tribunal points out, no such complaint was provided to the Tribunal in the week provided for a further submission and that the further submissions did not establish any exceptional reasons.

18. The applicant requested a further opportunity to provide further evidence after having earlier obtained a one week extension for further submissions.  The only grounds of that application again appears to relate to the complaint sought to be pursued with the Ombudsman and the Department, neither of which would have been of any utility in circumstances where the Tribunal was prepared to assume that the applicant had been misled. 

19. The refusal to grant a further extension of time in the circumstances of this case cannot be said to lack an evident and intelligible justification.  There was no denial of procedural fairness by the Tribunal in deciding to determining the applicant's application in the present case.

20. From the bar table the applicant sought an adjournment of the hearing today.  That adjournment apparently was for the purpose of ascertaining further information about the meaning about "exceptional reasons" so that the applicant could put further submissions as to alleged error by the Tribunal. 

21. These proceedings were commenced on 30 June 2015.  A Registrar of the Court fixed the matter for hearing, making directions on 6 August 2015.  Those directions provided an opportunity for the applicant to file an amended application, put on evidence, affidavit evidence, and also provide submissions.  No such documents were filed by the applicant. 

22. On the material before the Court no notice was given of any application for an adjournment prior to today’s final hearing and the identified purpose of the adjournment would be of no utility.  A further adjournment in relation to the applicant ascertaining further information about exceptional reasons is not a matter that would give rise to the identification or establishment of any error by the Tribunal in the present case.  I am satisfied that an adjournment would only unnecessarily increase the cost to the parties and utilise limited Court time. The adjournment was opposed by the first respondent and it is for these reasons that the adjournment was refused. 

23. The application fails to identify any jurisdictional error and nothing said by the applicant from the bar table identified any basis upon which there could be said to be any jurisdictional error by the Tribunal.  Accordingly, the application is dismissed. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 17 December 2015