Sharma v Minister for Immigration & Anor
[2018] FCCA 2152
•28 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHARMA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2152 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – whether the Tribunal erred by assessing the visa application as a vocational education application and whether the Tribunal applied the wrong visa criteria considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.351, 476 Migration Regulations 1994 (Cth) |
| Cases cited: CCC v Minister for Immigration [2001] FCA 682 Foroghi v Minister for Immigration [2001] FCA 1875 Kim v Minister for Immigration & Anor [2008] FMCA 1577 Singh v Minister for Immigration [2017] FCA 1365 SZRBA v Minister for Immigration [2014] FCAFC 81 |
| Applicant: | NATASHA SHARMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2360 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 7 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 28 September 2018 |
REPRESENTATION
| The Applicant appeared in person, with the assistance of Mr K Praashar as a McKenzie Friend |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application filed on 26 July 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2360 of 2017
| NATASHA SHARMA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant (Ms Sharma) seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 6 July 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Ms Sharma a temporary student visa.
Background facts relating to this matter are set out in the Minister’s initial outline of legal submissions filed on 16 May 2018.
Ms Sharma is a citizen of India who most recently arrived in Australia on 7 November 2015 as the holder of a visitor (Subclass 600) visa.[1]
[1] Court Book (CB) 12, CB 31
On 13 April 2016, Ms Sharma applied for a student (Subclass 572) visa to undertake a Diploma of Early Childhood Education and Care.[2] As Ms Sharma was the holder of a Subclass 600 visa at the time the application was made in Australia, she was required to establish that there were “exceptional reasons” for the grant of the visa.[3]
[2] CB 1-22
[3] Clause 572.227 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) at the relevant time. The subclasses of student visa have since been consolidated into Subclass 500
On 29 April 2016, the delegate wrote to Ms Sharma and invited her to provide a statement explaining her exceptional reasons for the grant of the visa.[4] On 21 May 2016, Ms Sharma provided a statutory declaration which repeated her request to be granted a student visa in order to “increase [her] knowledge and bridge the gap in [her] skills”.[5] She stated that she had been in Australia for the past 10 months, living with her brother and had met various individuals from whom she had learnt the “benefit of studying in Australia”.
[4] CB 62-68
[5] CB 69-72
On 2 June 2016, the delegate refused to grant Ms Sharma the visa because he was not satisfied that Ms Sharma had established exceptional reasons as required by clause 572.227 of Schedule 2 to the Regulations.[6]
[6] CB 73-82
The Tribunal
On 19 June 2016, Ms Sharma lodged an application for review with the Tribunal and provided a copy of the delegate’s decision to the Tribunal.[7]
[7] CB 83-84
By a letter dated 27 April 2017, Ms Sharma was invited to attend a hearing before the Tribunal on 25 May 2017.[8] Ms Sharma attended the hearing[9] and provided documents relating to her enrolment in a Diploma of Early Childhood Education and Care and proposal to complete further study.[10]
[8] CB 90-93
[9] CB 99-101
[10] CB 102-104
The Tribunal’s decision
On 6 July 2017, the Tribunal affirmed the decision under review.[11]
[11] CB 105-111
The Tribunal identified that as Ms Sharma was a citizen of India who held a visitor (Subclass 600) visa whilst in Australia, the issue was whether she was able to establish exceptional reasons for the grant of the student visa as required by clause 572.227 of Schedule 2.[12] The Tribunal noted that “exceptional reasons” was not defined in the Migration Act 1958 (Cth) (Migration Act) or Regulations but had regard to Departmental policy.[13] The Tribunal also had regard to whether there had been any judicial consideration of “exceptional reasons” and set out observations made by Smith FM in Kim v Minister for Immigration & Anor[14] including that an applicant should not be granted a visa unless some reasons can be “positively identified” which justified the grant of the visa.[15]
[12] CB 109, [6]-[7]
[13] CB 109-110, [9]
[14] [2008] FMCA 1577
[15] CB 110-111, [12]-[14]
The Tribunal considered the reasons given by Ms Sharma during the hearing and in the documents provided to the Tribunal.[16] While the Tribunal accepted that Ms Sharma would like to open a childcare centre on her return to India, it did not accept that going back to India to apply for the visa would affect Ms Sharma financially and socially, or that because her brother, mother and friends resided in Australia, this constituted exceptional reasons for the grant of the visa.[17] It did not accept, in light of Ms Sharma’s overall circumstances, that she had established exceptional reasons for the grant of the visa.[18] The Tribunal concluded that she did not meet clause 572.227 and affirmed the decision under review.[19]
[16] CB 111, [15]
[17] CB 111, [15]
[18] CB 111, [16]
[19] CB 111, [17]-[18]
In attempting to reproduce the text of clause 572.227,[20] the Tribunal erroneously extracted the text of what was at that time, clause 573.227 of Schedule 2 to the Regulations. There is a question whether the error constitutes a jurisdictional error or whether it should be characterised as a defect due to inadvertence, mistake, accident or clerical error which did not affect the exercise of the Tribunal’s power.[21] As discussed below at [30]-[32], there was no difference between the requirements in clause 573.227 and clause 572.227 and the Tribunal’s reasons indicate that it otherwise understood and applied the correct statutory test required by clause 572.227.
[20] CB 109, [8]
[21] SZRBA v Minister for Immigration [2014] FCAFC 81
The present proceedings
These proceedings began with a show cause application filed on 26 July 2017. Ms Sharma continues to rely upon that application. The application was technically deficient in that, although Ms Sharma had ticked the box on the form seeking an order that the decision of the Tribunal be quashed, she had not ticked the box on the form seeking also a writ of mandamus directed to the Tribunal. She had, however, ticked the box seeking another order which was to the same effect. With the agreement of Ms Sharma and counsel for the Minister at the trial of the matter on 7 August 2018, I amended the form myself.
There are four grounds in the application:
1. The delegate denied the applicant a procedural fairness
2. The Hon. Tribunal affirmed the delegate’s decision without considering my situation as it can affect me and family very badly.
3. I am seeking the Hon FCC to consider my case and give me an [opportunity] to stay in Australia by [reinstating] my student visa, so that I could complete my studies and satisfy my parents, as they are very worried about my situation.
4. My departure from Australia will cause lot of stress to me and my single mother and my brother who are Australian resident and citizen respectively.
My father passed away in 1988. My mother looked after both of us and then later on my brother supported me and my mother, as they both are now settled in [Australia] on permanent and long term basis, I will be the only person left alone and I have no other immediate family member in my home country to support me. It will be very hard for me to survive as a single girl in India, where safety of females is a huge issue, which can be seen in everyday’s [newspapers]. My [forced] exit from Australia can totally destroy my future and [career] cause mental stress.
The application is supported by a short affidavit filed with it which I received. I also have before me as evidence the court book filed on 14 September 2017. I also received as an exhibit[22] a bundle of documents concerning Ms Sharma’s completion of her Diploma of Early Childhood Education and Care and her current studies towards a Bachelor of Arts (Pathway to Teaching).
[22] Exhibit A1
This matter came before me for a show cause hearing on 23 May 2018. At that time, I made the following order:
1.Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted in relation to the following issues:
a. The visa application having been made for a clause 573 higher education sector visa but not supported, was it correct to assess it under clause 572 of the Migration Regulations 1994 (Cth), which apply in relation to a vocational education and training sector visa?
b. If the answer to the above is “yes”, is the error in [8] of the second respondent’s decision record a jurisdictional error?
The matter was listed for a final hearing in relation to the above issues on 7 August 2018. Both the Minister and Ms Sharma filed written submissions for the purposes of that hearing.
Consideration
There is no substance to the grounds of review advanced in the application. I agree with the Minister’s submissions in relation to those grounds.
Ground 1
Ground 1 makes a broad assertion that the delegate denied Ms Sharma procedural fairness. The Court has no jurisdiction to review the delegate’s decision.[23] Accordingly, this ground cannot succeed.
[23] Section 476(2)(a) of the Migration Act
Grounds 2 and 4
Grounds 2 and 4 contend that the Tribunal affirmed the decision without considering Ms Sharma’s situation and it could affect her and her family “very badly”. Ms Sharma states that her departure from Australia would cause “a lot of stress” to her and her single mother and brother in Australia. She states that she has no immediate family in India to support her, it would be difficult to survive as a single girl in India and it would “totally destroy” her future and career, causing mental stress. Ms Sharma made these submissions to the Tribunal at the hearing and they were expressly considered by the Tribunal. Relevantly, the Tribunal decision noted that Ms Sharma stated if she returned to India it would affect her financially and socially, as her brother, mother and friends are all in Australia.[24] As outlined at [11] above, while the Tribunal accepted that Ms Sharma would like to open a childcare centre on her return to India, it did not accept that going back to India to apply for a student visa offshore would affect Ms Sharma financially and socially, in the manner contended.[25] It also did not accept that because her brother, mother and friends are in Australia, this constituted an exceptional reason for the grant of the visa.[26] Whether Ms Sharma had established “exceptional reasons” and its conclusion that such circumstances had not been established was a finding of fact open to the Tribunal on the evidence before it.[27] Accordingly, this ground cannot succeed.
[24] CB 109, [5]
[25] CB 111, [15]
[26] CB 111, [15]
[27] Ibid
Ground 3
Ground 3 requests an opportunity for Ms Sharma to stay in Australia to complete her studies to satisfy her parents,[28] as they are “worried about [her] situation”. This ground does not identify any jurisdictional error in the Tribunal decision and constitutes a request for impermissible merits review. Accordingly, this ground cannot succeed.
[28] According to Ms Sharma, she has only one living parent
The additional matters which were the subject of the show cause order
Ms Sharma submits that she had submitted her application as a Subclass 573 higher education visa application but it was incorrectly assessed as a Subclass 572 vocational education visa application. She complains that the Tribunal did not question her about her future plans and submits that, if she had been asked, she would have explained her future pathway to higher education (which has indeed transpired). Ms Sharma also draws attention to her personal circumstances which would bear on an exercise of discretion by a decision maker but which do not assist the Court in assessing the validity of the Tribunal decision.
Ms Sharma contends that she is the victim of incorrect information being given to her by the Minister’s Department when she was selecting her course. She was seeking a higher education student visa (commensurate with her longer term goals) and she asserts that the Tribunal was in error in assessing her application as a vocational education application.
I prefer the Minister’s submissions in relation to the show cause issues raised by me.
First issue
The Tribunal made no error in reviewing the decision on the basis of Ms Sharma having made an application for a Subclass 572 visa. As explained by Perry J in Singh v Minister for Immigration:[29]
Subclasses 572 and 573 do not create classes of visa but merely prescribe criteria for the grant of a Student (Class TU) visa, depending upon the category of course that an applicant intends to undertake or is undertaking.
[29] [2017] FCA 1365 at [26]
It is uncontroversial that Ms Sharma sought to be granted a student visa on the basis of her enrolment, and in order to undertake studies, in two diploma courses.[30] Diploma courses were, at the time of visa application, courses specified by the Minister in a legislative instrument as a type of course within subclass 572.[31]
[30] See CB 4-5, CB 40 and CB 42
[31] See IMMI 14/015
Notwithstanding that Ms Sharma “ticked the box” on the visa application form[32] indicating she wished to apply for a Subclass 573 visa, this of itself is not determinative of the question as to what visa she was seeking to be granted. As Perry J noted in Singh at [28], the Tribunal’s task is to make the correct and preferable decision at the time that it made its decision. There was no evidence before the Tribunal that Ms Sharma was enrolled in, or sought enrolment in, a higher education course that would make her eligible to be considered for a Subclass 573 visa. To the contrary, Ms Sharma gave to the Tribunal further evidence that demonstrated she was enrolled in a diploma course at Bedford College.[33] Ms Sharma did produce an email from Bedford College indicating that she had asked the College to provide her, for the purposes of her Tribunal hearing, with some possibilities for further study at university.[34]
[32] CB 1
[33] CB 102-103
[34] CB 104
Had Ms Sharma intended to be assessed against the criteria for the grant of a Subclass 573 visa, the application would have been refused. That is because Ms Sharma would have needed to continue to be enrolled or have an offer of enrolment in a course specified in an instrument (being IMMI 14/015).[35] Alternatively, she needed to be enrolled in a course provided by an “eligible education provider” for the award of a Bachelor degree or a Masters degree by course work.[36]
[35] See subclause 573.231 at the relevant time
[36] See clause 573.223(1A) and the definition of “eligible higher degree student” in clause 573.111
The types of courses which would satisfy clause 573.231 were limited to Diploma (Higher Education), Advanced Diploma (Higher Education), Bachelor Degree, Graduate Certificate (Higher Education), Graduate Diploma (Higher Education), Associate Degree and Masters by Coursework.[37] Enrolment in “English Language Programs” and a Diploma of Early Childhood Education and Care within the VET sector were not enrolments in a course which met the requirements of clause 573.231 or clause 573.223(1A).
[37] See IMMI 14/015
Second issue
The error in [8] of the decision record occurred because the Tribunal extracted a part of clause 573.227, rather than the correlative part of clause 572.227. I accept that, by reference to the broader context of the Tribunal’s reasons, including references elsewhere to clause 572.227 (for instance at [3], [11] and [17] of the decision record) it is plain that the Tribunal had intended to extract the relevant portions of clause 572.227. The error being in the nature of an unintended oversight, the authorities require that a common sense approach to reading the Tribunal’s decision record should be employed.[38]
[38] See Foroghi v Minister for Immigration [2001] FCA 1875 at [48]; CCC v Minister for Immigration [2001] FCA 682 at [29]
Further, in light of the nature of the error in the present case, it is not open to me to find that the Tribunal failed to consider the case on its merits.[39] That is because first, by reference to [11] of the decision record it is clear that the Tribunal in fact considered and applied the criteria in clause 572.227, and secondly, the content of clause 572.227 and clause 573.227 were, in any event, substantively identical. Relevantly, it was a requirement of both subclass 572 and subclass 573 that an applicant, who at the time of application was the holder of a Subclass 600 visitor visa, needed to establish exceptional reasons for the grant of the visa.
[39] SZRBA v Minister for Immigration [2014] FCAFC 81 at [20]
In the circumstances, even had the Tribunal assessed Ms Sharma against inapplicable Schedule 2 criteria in the present case, this would have made no difference to the outcome of the review.
It is nevertheless unfortunate that Ms Sharma was not able to address the Tribunal on her complete education plans in which she remains engaged and on which she appears to have made good progress. If this matter were remitted to the Tribunal it would have to take account of the Bachelor of Arts course currently being undertaken by Ms Sharma. In short, Ms Sharma’s circumstances have changed, to her benefit, since the Tribunal made its decision. It would be open to the Minister, if he were so minded, to consider Ms Sharma’s current circumstances under s.351 of the Migration Act.
Conclusion
Ms Sharma has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 28 September 2018
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