Shashidhar v Minister for Immigration

[2016] FCCA 2857

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHASHIDHAR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2857

Catchwords:
MIGRATION – Student visa – “exceptional circumstances” – none shown – show cause produce – application to the FCCA dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cl.572.227

Cases cited:

AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68

Kim v Minister for Immigration and Citizenship [2009] FCA 161

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: VEERA VENKHATA NAGA NANDMA SIDDARUSHI SHASHIDHAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 22 of 2016

Judgment of: Judge Wilson

Hearing date: 20 October 2016

Date of Last Submission: 20 October 2016

Delivered at: Melbourne

Delivered on: 20 October 2016

REPRESENTATION

Applicant appeared in person

Solicitors for the First Respondent: Ms F Taah of Australian Government Solicitor

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application filed 6 January 2016 is dismissed.

2. The applicant pay the costs of the Minister fixed in the sum of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 22 of 2016

VEERA SHASHIDHAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. Pursuant to orders made by Registrar Buljan on 8 June 2016 the application for judicial review in this proceeding[1] was ordered to proceed as a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). The applicant applied for a Student Temporary (Class TU, Subclass 572) visa on 19 May 2015. The applicant arrived in Australia on 24 February 2015 as the holder of a Subclass 600 (Tourist) visa that expired on 24 May 2015. The applicant indicated that it was the applicant’s intention to study for a diploma and an advanced diploma of management. That visa was made offshore.

   [1] Application filed 6 January 2016.

2. On 21 May 2015 the applicant’s migration agent was told that the applicant needed to demonstrate the existence of exceptional circumstances in order to be eligible for the grant of a first student visa that was applied for online and onshore. The applicant’s visa application came before a delegate of the Minister for Immigration and Border Protection (“the Minister”). The delegate was not satisfied that the applicant demonstrated the existence of exceptional reasons. The delegate refused to grant the visa application. 

3. Being dissatisfied with the delegate’s decision, on 16 July 2015 the applicant applied to the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”). On

   
   

   3 December 2015 the applicant appeared before the Tribunal. The Tribunal examined the applicant’s application afresh. In its written reasons for deciding to affirm the delegate’s decision[2] the Tribunal stated that the applicant’s visa application was made onshore so in order to obtain the grant of a subclass 572 student visa the applicant needed to satisfy the criteria of cl.572.227 of the

   
   Migration Regulations 1994

   (Cth) (“the Regulations”). In paragraph 10 of its reasons the Tribunal stated that cl.572.227 of the Regulations required an applicant applying in Australia while already holding a Subclass 600 visa to provide exceptional reasons for the grant of a student visa. The Tribunal stated that it was a relatively high bar to satisfy the criteria of “exceptional reasons” and that it may include persuasion of such things as an improvement in bilateral relations or a significant economic benefit to Australia.[3]

   [2] Affidavit of Freda Taah filed 4 October 2016 at Annexure FT1.

   [3] Affidavit of Freda Taaf filed 4 October 2016, Annexure FT1 at [10].

4. In paragraph 11 of its reasons the Tribunal recorded the applicant’s intention to obtain another degree in Australia and that the applicant stated that the applicant was given incorrect advice through a migration agent and legal practitioner about the process that had to be followed when seeking a student visa. The Tribunal considered those matters and decided that they did not amount to exceptional reasons. The Tribunal considered that the applicant failed to provide evidence that satisfied the elements of cl.572.227 of the Regulations.

5. In the applicant’s application for review in this Court the grounds upon which the applicant relied were as follows –

   1.  This is an application for review of a decision of a delegate of the Migration & Refugee Division on 03 December 2015 to refuse to grant the applicant a student visa 

   2.  My visa application has been refused on the basis as I wasn’t satisfying the criterion of EXCEPTIONAL REASON criterion. 

   3.  I have tried myself to show the reason beyond my control to lodge the application for student onshore. 

   4.  I appeared before the Tribunal on 03 December 2015 to give evidence and present argument. 

   5.  Further “point” is raised at the hearing about I have to give exceptional reason to grant that visa. 

   6.  And finally, I say I do have compelling reasons which may meet the exceptional reasons, by obtaining to have a Degree from University, Australia.

   7.  I hope Federal Circuit Court has got jurisdiction in (sic).[4]

   [4] Application filed 6 January 2016 at p.3.

6. At the outset I stated that the Federal Circuit Court of Australia, of which I am a member, does have jurisdiction, and I will determine this issue. No definition is given in the Migration Act 1958 (Cth)

   
   

   (“the Act”) or in the Regulations of the phrase “exceptional reasons”. Some limited guidance has been given of the meaning of the phrase by Buchanan J in Kim v Minister for Immigration and Citizenship[5] (“Kim”). There his Honour held that exceptional reasons are reasons that are unusual or out of the ordinary. The Tribunal did not regard the reasons given by the applicant as being out of the ordinary or unusual in the way the phrase “exceptional reasons” is to be understood.

   
   

   Nor do I.

   [5] [2009] FCA 161.

7. In a show cause hearing the power of summary dismissal is not to be lightly exercised. The High Court so held that in Spencer v the Commonwealth,[6] as did the Full Court of the Federal Court of Australia in AMF15 v Minister for Immigration and Border Protection.[7] In making my determination in this case I have carefully read and kept in mind those authorities and the high statement of principle in them. That said, I am not satisfied that the applicant has raised an arguable case for the relief claimed, as is mentioned in r.44.12(1A) of the Regulations. The reasons recorded in paragraph 11 of the Tribunal’s reasons correctly encapsulate the applicant’s case. They do not amount to exceptional reasons. The grounds of review, discursive as they are, and even though they were prepared by a litigant in person, do not demonstrate exceptional reasons in the way that phrase is contemplated in the regulations as interpreted by Buchanan J in Kim. 

   [6] (2010) 241 CLR 118.

   [7] (2016) FCAFC 68.

8. The applicant has failed to persuade me, as he failed to persuade the Tribunal and the delegate, of the existence of exceptional reasons. The Tribunal made no jurisdictional error in this case. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 7 November 2016