Sharma v Minister for Immigration

[2015] FCCA 1157

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1157

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – application for a Student (Temporary) (Class TU) Subclass 572 visa – application dismissed.

Legislation:

Federal Circuit Court Rules2001 (Cth)

Migration Act 1958 (Cth), ss.360, 360(2)(b)

Migration Regulations1994 (Cth), Sch.2; cls.572.211, 572.211(2)(d), 572.227, 572.227(c)

Kim v Minister for Immigration and Citizenship [2008] FMCA 1577
Maan v Minister for Immigration and Citizenship[2009] FCAFC 150

SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64

First Applicant: NEHA SHARMA

Second Applicant: VISAHL TRIKHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 356 of 2014

Judgment of: Judge Hartnett

Hearing date: 13 February 2015

Delivered at: Melbourne

Delivered on: 7 May 2015

REPRESENTATION

The First Applicant: In Person

The Second Applicant: No appearance

Counsel for the Respondents: Ms Mitchell

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The application is dismissed.

2. The applicants pay the First Respondent’s costs fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 356 of 2014

NEHA SHARMA

First Applicant

VISAHL TRIKHA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is a judicial review application filed by the applicants on 28 February 2014.  The applicants seek to review a decision of the Migration Review Tribunal (‘the Tribunal’) dated 11 February 2014.  The Tribunal affirmed a decision of the First Respondent, by his Delegate (‘the Delegate’), not to grant the First Applicant a Student (Temporary) (Class TU) Subclass 572 visa (‘Subclass 572 visa’).

2. The grounds of application are as follows:-

   “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

   4. There are same cases which have got positive decision in High court, therefore I got hope that I could win the case I High Court

   5. Previously federal Circuit court has remitted my application back to Tribunal, then tribunal affirms not to grant visa.  This pushes me in to dilemma whether I could get the grant or not.”[1]

   [1] Application filed by the applicants on 28 February 2014.

3. The applicants rely upon an Affidavit sworn by the First Applicant on 28 February 2014, which, in essence, restates the grounds of application and annexes the Decision Record of the Tribunal dated 11 February 2014 (‘the Decision Record’).  The applicants further rely upon an Affidavit sworn by the Second Applicant, who is the spouse of the First Applicant, and thus a member of the First Applicant’s family unit, which adds no material facts to those already before the Court.

4. The applicants relied further on an Affidavit of the First Applicant sworn 23 December 2014.  In that Affidavit, the First Applicant, in letter of 16 December 2014 annexed thereto, and in paragraphs 4 and 5, said the following:-

   “4. On 6 November 2013, my MRT hearing was scheduled.  However, I had to request for the reschedule of that hearing as I was suffering from the gastroenteritis.  Considering my situation my hearing was postponed to 20 November 2013.  I submitted all the documents to my agent for the MRT hearing however as my medical situation didn't improved I was not able to attend the hearing.  I updated my condition to my agent, however my agent misinterpreted and informed MRT that I had no intention to attending the hearing and the Tribunal should make a decision on the basis of documents submitted.  MRT was not convinced with the documents submitted and again decided not to grant the student visa as I don't satisfy clause 572.227, and;

   5. I was not able to attend the hearing due to my medical conditions which was beyond my control and I believe that I would have explained my situation better if I would have been there.  I have attached my medical report as a proof of my medical situation during my MRT hearing dates.”[2]

   [2] Affidavit of the First Respondent sworn on 23 December 2014.

5. The Court notes the medical certificate referred to in paragraph 30 herein is dated 15 December 2014 and provided by Dr Wen Chen. It says:-

   “This is to state that Miss Neha Sharma

   attended this clinic on 05.11.2013 due to symptoms of gastroenteritis. Neha reported that she wasn’t well until 25.11.2013 and therefore she wasn’t able to attend court hearing during those days.

   Miss Neha Sharma was unable to attend court hearing

   from Thursday, 7 November 2013 to Monday 25 November 2013 inclusive.”

6. In the correspondence dated 16 December 2014, annexed to the Affidavit of the First Applicant sworn 23 December 2014, the First Applicant further said as follows:-

   “8. Currently I am studying Advance Diploma of Marketing and I wish to continue my further studies in the same field.  After completing [a] few courses in Australia I am now confident as well as eligible for higher education over here.  My previous studies have build (sic) confidence and helped me [a] lot to understand the education system of Australia.  It will also allow me some credit exemption towards my higher education which is an added advantage for me.  I have already started looking for my future course which I am planning to join after completion of current course.  As I am moving ahead with my studies I would like to request to the court to provide me an opportunity for continuing my studies. 

   9.  As per the clause 572.227, MRT has refused my review of my visa refusal mentioning (sic) that I don't have exceptional reason for the grant of the visa and they have mentioned that one of the exceptional reasons for the grant of the visa is that there would be benefit to Australia.

   In this regard, I would like to mention [a] few points which I believe is benefit to Australia from my visa grant (sic).

   ·     I have done few volunteer works (sic) including Sri Lankan Community Newspaper and few others which is an indirect benefit of Australian Community and Australia;

   ·     Based on my volunteer work I have also received job offer from Serendib News Network upon having full work rights in Australia.  I believe this shows my potential and future benefit to the Australian Organisations (sic) in the future after completion of my studies.

   ·     Finally, I have been working and paying tax to the Australian Government which will continue over my stay period, which is also a benefit to the (sic) Australia.”[3]

   [3] Affidavit of the First Respondent filed on X.

7. By Response filed 14 March 2014, the First Respondent seeks dismissal of the application with costs in accordance with the Federal Circuit Court Rules2001 (Cth) (‘the Rules’) fixed in the sum of $6,825. For the reasons which follow, the applicants’ application is dismissed and costs follow that event.

History

1. The First Applicant was born on 28 August 1987 in India.  She arrived in Australia on an Indian passport and Subclass 458 visa. Her arrival date was 17 April 2012.  The Second Applicant is her spouse.  The Second Applicant applied for the visa as a member of the First Applicant's family unit.  Hereafter in these reasons, I shall refer to the First Applicant as “the Applicant”.  The Applicant made application for a Subclass 572 visa on 15 October 2012. She was at the time in Australia.  Prior to her arrival in Australia, the Applicant had completed a Bachelor of Science and a Master of Science at Guru Nanak Dev University in Punjab, India.  Her Master’s degree was commenced in June 2008 and concluded on 12 August 2010.  The Applicant proposed to complete a Diploma of Business at the Victorian Institute of Technology in Australia, with a conclusion date of 30 September 2013.

2. In an appendix to her visa application, the Applicant provided an undated statement which is set out below:-

   “Dear Sir/Madam,

   I am in Australia currently living with my husband.

   I finished my M.Sc in August 2010.  I intend to complete Diploma of Business in Australia and return to India in search for a reasonable employment.  Getting my Australian Diploma would be of a great advantage to me.  This would mean a bigger and better chance of getting a job with my Masters from India.  Australian educational certificates are also recognised all over the world.  If not able to find a suitable job, I would be able to set up my own business for which my Diploma of Business would be an added advantage. 

   Moreover, while I do this course, I can live with my husband in Australia.  We got married very recently and we do not intend to live apart at this moment of time.  If I have to return to India to lodge my student visa application, my in-laws will not allow me to return to Australia to study or to live with my husband for several years.  I am ashamed to state that in our culture, I am supposed to look after my parents-in-law and obey what they decide and my husband will not be able to help me in this regard. 

   In view of the above, I request you to kindly grant me the visa applied for, so that I will be able to live with my husband and complete my studies.

   Thanking you in anticipation. 

   Neha Sharma.”

3. On 23 October 2012, the Delegate refused to grant the Applicant’s Subclass 572 visa on the basis that the Applicant did not meet cl.572.227, as set out in Part 572 of Schedule 2 to the Migration Regulations1994 (Cth) (‘the Regulations’).

4. Subdivision 572.227 of Schedule 2 (Subclass 572 Vocational Education and Training Sector) to the Regulations relevantly provides as follows:-

   “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:

   (A) Border (Temporary) (Class TA);

   (B) Business (Temporary) (Class TB);

   (C) Cultural/Social (Temporary) (Class TE);

   (D) Educational (Temporary) (Class TH);

   (E) Electronic Travel Authority (Class UD);

   (F) Expatriate (Temporary) (Class TJ);

   (G) Family Relationship (Temporary) (Class TL);

   (H) Interdependency (Temporary) (Class TM);

   (I) Long Stay (Visitor) (Class TN);

   (IA) Maritime Crew (Temporary) (Class ZM);

   (J) Medical Practitioner (Temporary) (Class UE);

   (K) Retirement (Temporary) (Class TQ);

   (L) Short Stay (Visitor) (Class TR);

   (LA) Superyacht Crew (Temporary) (Class UW);

   (M) Supported Dependant (Temporary) (Class TW);

   (N) Temporary Business Entry (Class UC);

   (NA) Tourist (Class TR);

   (NB) Visitor (Class TV);

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

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

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

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

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

   (BA) Subclass 485 (Skilled — Graduate);

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

   (iv) as a person:

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

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

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

5. The Applicant failed to satisfy the Delegate that she had exceptional reasons for the grant of her initial student visa onshore. The Applicant was required to establish same because she did not hold one of the visas referred to in cl.572.227(c) of Schedule 2 to the Regulations as referred to above.

6. On 7 November 2012, the applicants applied to the Tribunal for a review of the delegate’s decision.  During the course of the review by the Tribunal, the Applicant provided further evidence going to the establishment by her of “exceptional reasons” for the grant of a Subclass 572 visa.

7. On 22 February 2013, the Tribunal made a decision affirming the delegate’s decision that the Applicant did not meet cl.572.227 of Schedule 2 to the Regulations.

8. On 11 July 2013, following application to this Court for judicial review of the Tribunal decision of 22 February 2013, orders were made by consent of the parties, remitting the matter to the Tribunal for reconsideration.  On 8 August 2013, the Tribunal sent a letter to the applicants, care of Mr Gurbinder Singh, he being the authorised recipient of the applicants at that time, noting the remittal of the matter to it for reconsideration. 

9. By email of 5 September 2013, Jayapal Reddy Vadlakonda of Owlet Migration & Education Consulting informed the Tribunal of his subsequent appointment as the applicants’ authorised recipient.  In that email, the authorised recipient provided to the Tribunal a current Certificate of Enrolment of the Applicant. 

10. By letter of 8 October 2013, the Tribunal invited the applicants to appear before it to give evidence and present arguments at a hearing scheduled for 6 November 2013. The Tribunal requested, in that correspondence, that any additional documents or information that the applicants may wish to rely on during the hearing be provided to the Tribunal by 30 October 2013.  The Tribunal further noted, that if the applicants were not able to attend the hearing, they should advise the Tribunal as soon as possible.  The Tribunal said:-

    “Please note that the Tribunal will only change this date if satisfied that you have a very good reason for being granted an adjournment.  If the Tribunal does not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.  If you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.”[4]

    [4] Letter from the Migration Review Tribunal to Mr Vadlakonda Jayapal Reddy dated 8 October 2013.

11. By letter dated 30 October 2013 and addressed to the Tribunal, the Applicant made further submissions regarding her “exceptional circumstances” and provided supporting documents.  By email of 6 November 2013, the Applicant's authorised recipient advised the Tribunal that the Applicant would not attend the hearing that day as a result of illness.  A medical certificate was attached.  That medical certificate was provided by Dr Wen Chen and was dated 5 November 2013.  It certified that the Applicant was unable to attend a Court hearing from 6 November 2013 to 6 November 2013 inclusive due to gastroenteritis.

12. The Tribunal granted a postponement of the hearing and by letter dated 6 November 2013 to the applicants, care of their authorised recipient, the Tribunal invited the applicants to appear before it to give evidence and present arguments at a rescheduled hearing on 20 November 2013.  On 11 November 2013, the Applicant returned a completed “Response to Hearing Invitation” form indicating that the Applicant and her authorised recipient would attend the hearing on the adjourned date of 20 November 2013.

13. On 20 November 2013 at 12.42 pm, the Applicant’s authorised recipient contacted the Tribunal by email as follows:-

    “Dear officer,

    Good after noon to you,

    I would like to notify you that client doesn't have intention to attend the hearing and further she says that member could take the decision with submitted documents.  Therefore I wouldn't be appeared at hearing today as it is not worthwhile.

    Please contact me with out any hesitation if any queries regarding in this matter.

    Thank you very much,

    Have a good day.”

14. On 11 February 2014, the Tribunal affirmed the Delegate's decision to refuse to grant the applicants Student (Temporary) (Class TU) Subclass 572 visas.

The Tribunal Hearing

1. The Tribunal noted that the application before it was for a review of a decision made by a delegate of the Minister to refuse to grant the Applicant’s Subclass 572 visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal noted the relevant law correctly in paragraph 5 of its Decision Record. It stated that:-

   “An application for a student visa made in Australia where the applicant is seeking the grant of an initial student visa has a further time-of-decision requirement for certain classes of applicants - the applicant establishes exceptional reasons for the grant of the Subclass of visa specified for the course of study proposed to be undertaken by the applicant.  The additional requirement in the present case is to (sic) contained in clause 572.227...”

2. The Tribunal had before it the Department’s file relating to the applicants, the material referred to in the Delegate's decision and other material available to it from a range of sources. The Confirmation of Enrolment provided by the Applicant was for a Diploma of Marketing at the Australian Institute of Marketing from 2 September 2013 with the course ending on 31 August 2014. The Tribunal noted the Applicant was the holder of a Subclass 485 (Skilled-Graduate) visa, and therefore satisfied cl.572.211(2)(d) of Schedule 2 to the Regulations, this being a time of application criteria. By that fact however, the Applicant was required at time of decision to satisfy the criteria set out in cl.572.227 of Schedule 2 to the Regulations.

3. In its Decision Record, the Tribunal set out the information and evidence provided by the Applicant in support of her application and under the heading Findings and Reasons, and in paragraph 16, summarised the Applicant’s arguments as to her establishment of exceptional reasons for the grant of the visa.  The Tribunal referred to the Department’s guidelines, Procedures Advice Manual 3 (‘PAM 3’), which contained a description of “exceptional reasons” to include, but not be limited to, situations as set out in paragraph 20 of the Decision Record.

4. The Tribunal noted that such guidelines were not binding on it, but that they may be a relevant consideration when determining what constitutes “exceptional reasons” in an individual's circumstances.  In relation to those guidelines, the Tribunal was not persuaded that any of the arguments put forward by the Applicant applied.  The Tribunal noted, in paragraph 19 of its Decision Record:-

   “In considering whether ‘exceptional reasons’ have been established, these are not intended to be found by deciding whether the applicant has the ‘normal’ characteristics of an applicant who is not subject to the restriction in the criterion, nor by deciding whether she departs from the ‘normal’ characteristics of the group who is subject to the restriction.[5]  When determining whether ‘exceptional reasons’ have been established the Tribunal must assume that the applicant should not be granted the visa unless some reasons can be positively identified which justify the grant of the visa.[6]  Beyond such reasons being capable of being described as ‘exceptional’ in ordinary parlance there is no descriptive definition of the term.[7]”

   [5] Kim v MIAC [2008] FMCA 1577 (Smith FM, 27 November 2008 at [29], undisturbed on appeal – Kim v MIAC [2009] FCA 161 (Buchanan J, 26 February 2009).

   [6] Kim v MIAC [2008] FMCA 1577 (Smith FM, 27 November 2008 at [29], undisturbed on appeal – Kim v MIAC [2009] FCA 161 (Buchanan J, 26 February 2009).

   [7] Kim v MIAC [2008] FMCA 1577 (Smith FM, 27 November 2008 at [29], undisturbed on appeal – Kim v MIAC [2009] FCA 161 (Buchanan J, 26 February 2009).

5. The Tribunal’s findings are as accurately set out in the submissions of Counsel for the First Respondent.  They were that:-

   a)the Tribunal accepted that the Applicant had not breached any regulations or conditions of her visa in Australia or elsewhere;

   b)the Tribunal accepted that the Applicant misinterpreted the provisions of the Regulations at the time that she applied for the Subclass 572 visa;

   c)the Tribunal was not persuaded by the Applicant's arguments that completion of her undergraduate degree in economics, and her post‑graduate qualification in mathematics, or that her academic record was good, constituted an exceptional reason for the granting of the Subclass 572 visa;

   d)the Tribunal found the Applicant's desire to study marketing or business did not constitute an exceptional reason for the grant of a Subclass 572 visa;

   e)the Tribunal did not accept the Applicant's argument that it was desirable to obtain an Australian qualification, and that this could lead to better career prospects for her, was an exceptional reason for the grant of a Subclass 572 visa;

   f)the Tribunal noted the Applicant's claim that if she was to gain employment with an Australian organisation, Australian citizens would benefit because employees would be eager for her skills, but noted that the Applicant failed to identify how her skills or her economics degree or Masters in Mathematics were identified as being unique or in short supply in the Australian workforce. It therefore, did not accept the Applicant's claim that employers would be eager for her skills because of her qualifications and, therefore, Australian citizens would derive benefit from her study;

   g)the Tribunal did not accept the Applicant's argument that adding a diploma level course to her qualifications was desirable and would help her in the future when she returned to India.  In particular, the Tribunal noted that the Applicant failed to provide any evidence which would show that such a course was not available in India;

   h)the Tribunal did not accept the Applicant's submission that she would not be allowed to return to Australia if she had to travel back to India.  The Tribunal noted that the Applicant had already travelled to Australia with her husband whilst he held a visa and therefore, the Tribunal did not accept that she could not do that again if she wished;

   i)the Tribunal noted the Applicant's argument that she did not want to live apart from her husband but considered that the husband would remain with her whether in Australia or in India.  The Tribunal found that this was not an exceptional reason for the grant of a Subclass 572 visa;

   j)the Tribunal noted the Applicant had an offer of full-time employment in Australia but found that as a condition on student visas prevents full-time employment, that job offer was not an exceptional reason for the grant of a Subclass 572 visa;

   k)the Tribunal noted the Applicant's claim that she had received an offer of employment from an Indian employer conditional on her obtaining an Australian qualification but found that the offer of employment was not, in itself, an exceptional reason for the grant of the Subclass 572 visa;

   l)the Tribunal found that the reasons presented by the Applicant, individually and cumulatively, were insufficient to constitute exceptional reasons.  In particular, the Tribunal did not accept that any of the reasons put forward by the Applicant were “exceptional” in the ordinary meaning of the word for the grant of a Subclass 572 visa;  and

   m)the Tribunal found that the Applicant had failed to establish exceptional reasons for the grant of a Subclass 572 visa and, therefore, that the Applicant did not satisfy cl.572.227 of Schedule 2 to the Regulations.

Consideration

1. The application itself does not set out any proper ground of judicial review. In reality, the Applicant seeks merits review which is not a function of this Court.

2. The lack of established grounds in the application, and lack of any particularity in respect thereto, is not a matter for this Court to remedy by the construction of grounds for the applicants. A fair reading of the Tribunal’s decision does not lead the Court to conclude that the decision is affected by jurisdictional error. The factual findings of the Tribunal were open to it on the evidence before it. The Tribunal afforded the applicants procedural fairness. There is no breach of the requirements in Division 5 of Part 5 of the Act alleged, nor, in looking to the Tribunal’s decision, made out.

3. The Applicant was invited to attend a hearing to give evidence and present arguments in accordance with s.360 of the Act. The invitation itself complied with the requirements of the Act and Regulations. Whilst the Applicant initially confirmed in her Response to Hearing invitation, as forwarded by her then-authorised recipient, that she would attend the hearing, she subsequently informed the Tribunal, through the same authorised recipient, that she did not intend to attend, and that the Tribunal could make a decision on the documents already submitted.

4. Having regarding to s.360(2)(b) of the Act, there was no error in the Tribunal thereafter proceeding with its review without taking any further steps to invite the applicants to appear before it. The First Respondent, in submissions, noted the Applicant’s submissions attached to her Affidavit sworn 23 December 2014 and, in particular, her assertion that her authorised representative misrepresented her position on 20 November 2013, and that her true position was that she was too ill to attend the hearing on that date. That Affidavit attached the earlier referred to (in these Reasons, paragraph 5) medical certificate dated 15 December 2014. The Court observes the medical certificate is dated over 12 months after the relevant period. Whilst the Applicant attended the same clinic on 5 November 2013, as evidenced by an earlier medical certificate provided by her which resulted in an adjournment of the earlier scheduled hearing, the medical conclusion as to her inability to attend Court until 25 November 2013 appears to be based on the Applicant's own report to her doctor. There is, as submitted by Counsel for the First Respondent, no contemporaneous evidence of either the Applicant's health on 20 November 2013, or her assertion that her authorised recipient misinterpreted her position as to her attendance before the Tribunal on the rescheduled hearing date.

5. Even assuming that there was any such misinterpretation of the Applicant's position, that does not, of itself, give rise to any breach of procedural fairness or other jurisdictional error.  The Applicant herself took no steps to contact the Tribunal to correct or confirm her position, or to follow up on her application for review between the 20 November 2013 hearing and 11 February 2014 when the decision was made.  The Tribunal was entitled to proceed on the basis of the authorised recipient's information as contained in the email to it of 20 November 2013. There is no error or fraud on the Tribunal such as to vitiate its procedures. In SZFDE v Minister for Immigration and Citizenship, the High Court said:-

   “… there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. (SZFDE at FCR 399; ALR 72–3; ALD 33–4.)”[8]

   [8] (2007) 237 ALR 64 at [53].

6. The applicants were well aware of the issues arising for the Tribunal to consider.  They had been made so aware by the Delegate's decision of 23 October 2012, and the decision at the first Tribunal hearing which was dated 22 February 2013.  The Tribunal's decision turned on a finding that the Applicant had not established “exceptional reasons” for the grant of the Subclass 572 visa.  The Tribunal correctly noted that the term “exceptional reasons” is not prescriptively defined, and that recourse should be had to the ordinary meaning of the word.  The Tribunal also took into consideration the relevant Departmental guidelines known as the “Procedures Advice Manual” which it also correctly noted were not binding on it but may contain relevant considerations.  The Tribunal determined those matters of fact it was required to determine. This Court shall not interfere with such findings.

7. I accept the First Respondent’s submission that the Tribunal proceeded correctly in assuming that the Applicant should not be granted the Subclass 572 visa unless some reasons could be positively identified to justify the grant of the visa.  The Tribunal did consider the reasons put forward by the Applicant but, in the exercise of its very broad discretion, concluded that those reasons were not exceptional in the ordinary meaning of the word.  Such finding was open to it on the evidence before it and no mistake of law is apparent in the Decision Record of the Tribunal.

8. In Maan v Minister for Immigration and Citizenship[2009] FCAFC 150 Dowsett, Greenwood and Collier JJ said, in paragraph 51 therein:-

   “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.”

9. The Tribunal did not err in law.  The Tribunal considered the evidence put before it by the applicants.  The Tribunal made an assessment, criticised by the applicants, but one which was made within the Tribunal's jurisdiction.  The Tribunal assessed individually each of the circumstances as put forward by the Applicant and her agent as exceptional reasons for granting her a Subclass 572 visa.  It considered those circumstances cumulatively.  It had, as said by Smith FM in Kim v Minister for Immigration and Citizenship:-

   “…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.”[9]

   [9] [2008] FMCA 1577 at [30]

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 7 May 2015