SINGH v Minister for Immigration

[2016] FCCA 2599

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2599

Catchwords:
MIGRATION – Application for Student (Temporary)(class TU) visa – cl.572.227 – whether applicant needed to show exceptional reason for grant of visa – whether applicant demonstrated exceptional reasons.

Legislation:

Acts Interpretation Act 1901, s.15AB(1)

Migration Act 1958 (Cth),

Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016
Migration Regulations 1994 (Cth), cll. 572.2, 572.211, 572.221, 572.222, 572.227, 572.234,

Cases cited:
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Drake v MIEA No. 2 (1979) 2 ALD 634
Karras, Monserrat Gonzales v Minister for Immigration & Multicultural Affairs Cabal, Teresa Pasini v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167
Mills v Meeking (1990) 169 CLR 214
Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1
Parramore v Duggan (1995) 183 CLR 633

Applicant: MALVINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 515 of 2016

Judgment of: Judge Jarrett

Hearing date: 7 October 2016

Date of Last Submission: 7 October 2016

Delivered at: Brisbane

Delivered on: 7 October 2016

REPRESENTATION

Solicitors for the Applicant: Legal Guru Pty Ltd

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The amended application filed on 1 August, 2016 be dismissed;

2. The applicant pay the first respondent’s costs of and incidental to the amended application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG515 of 2016

MALVINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is an Indian national.  He first entered Australia in 2009 as the holder of a Student (Temporary) (Class TU) visa. Subsequent to the grant of that visa, he was granted a further student visa in 2012 whilst he was in Australia.  He lodged a further Student (Temporary) (Class TU) visa application, which was subsequently refused.

2. The applicant sought a review of the decision to refuse his further application by a migration review tribunal.  Whilst awaiting the outcome of the review application, the applicant was offered an employment opportunity and lodged an application for a Temporary Business Entry (Class UC) (subclass 457) visa. 

3. The subclass 457 visa application was approved on 27 October, 2014.

4. On 30 September, 2015 whilst in Australia, the applicant applied to the first respondent for another Student (Temporary) (Class TU) visa in order to study a Diploma of Leadership and Management leading to an Advanced Diploma of Leadership and Management.  At the time of the application the applicant still held his Temporary Business (subclass 457) visa.  The subclass 457 visa was due to expire on 27 October, 2015.

5. On 27 November, 2015 a delegate of the first respondent refused the application for the Student (Temporary) (Class TU) visa on the basis that the applicant did not meet cl. 572.227 of the Migration Regulations 1994 (Cth).

6. On 13 December, 2015 the applicant applied for a review of the delegate’s decision by the second respondent.  On 18 May, 2016 the Tribunal made a decision affirming the delegate’s decision under review.  It is that decision that is the subject of these proceedings for the issue of constitutional writs to quash the second respondent’s decision and to remit the visa application for determination according to law.

Why did the applicant fail before the AAT?

1. Unsurprisingly, the AAT turned its attention to the primary criteria that the applicant needed to establish for the grant of a subclass 572 visa.  Clause 572.2 of Schedule 2 of the Regulations sets out those primary criteria.  Relevantly, at the time of the applicant’s application, the Regulations provided:

   572.21—Criteria to be satisfied at time of application

   572.211

   (1)  If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).

   (2)  An applicant meets the requirements of this subclause if the applicant is:

   (a)  the holder of a visa of one of the following classes or subclasses:

   (xv)  Temporary Business Entry (Class UC);

   …

   572.22—Criteria to be satisfied at time of decision

   572.221

   (1)  Unless, at the time of application, the applicant met the requirements of subclause 572.211(4), the applicant satisfies the criteria in clauses 572.222 to 572.234.

   (4)  An applicant meets the requirements of this subclause if:

   (a)  the applicant is the holder of a Subclass 560, 562 or 572 visa that is subject to condition 8101; and

   (b)  the application was made on form 157P or 157P (Internet); and

   (c)  the applicant gives to the Minister evidence that the applicant has commenced a course of study for which the visa held was granted.

   …

   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:

   (N)  Temporary Business Entry (Class UC);

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

2. The applicant met the requirements of cl.572.221(1) because his application was made in Australia, he was subject to the highest assessment level for the relevant course of study and he met the requirements of cl.572.221(2) in that at the time of his application he was the holder of a Temporary Business Entry (Class UC) visa.  He did not meet the requirements of cl.572.221(4).

3. Because the applicant did not satisfy the requirements of cl.572.211(4) of the Regulations he needed to satisfy cll.572.222 to 572.234 of the Regulations, and relevantly for this application, cl.572.227.  Consequently, he needed to establish exceptional reasons for the grant of the subclass 572 visa.

4. The applicant failed to establish the relevant exceptional circumstances both before the first respondent’s delegate and, more importantly for present purposes, the AAT.  I will deal with the second respondent’s reasons for so deciding later in these reasons.

Grounds of Review

1. The applicant presses three grounds of review.  I will deal with each one in turn, although both parties submitted that grounds one and two were linked.

2. Ground 1 is in the following terms:

   1. The Applicant asserts that the Tribunal made a finding that was error in jurisdictional fact in considering that the application for the student visa made by the Applicant was an application for an initial student visa.

3. The applicant argues that the criterion in cl.572.227 only applies, or should only be applied, to applicants for a student visa who have not previously held a student visa of the type applied for or granted whilst the applicant was in Australia.

4. On that basis, the applicant argues that because the applicant had previously held a student visa of the type applied for and granted whilst the applicant was in Australia, cl.571.227 should not be applied to his application and it was wrong of the AAT to require him to establish exceptional reasons for the grant of the visa.  He submits that on the basis of the previous student visas held by him, which were lodged and approved onshore, the AAT has fallen into error in its characterisation of the applicant’s application as one for an “initial student visa”.

5. To succeed on his argument the applicant must demonstrate that, despite the text of cl.572.221 of the Regulations, that criterion ought to be read so that it only applies to applications by applicants for the relevant student visa who have not previously held a student visa of the type applied for or granted whilst the applicant was in Australia.

6. The applicant’s construction finds no support in the text of cl.572.221.  Recognising that, the applicant sought to draw upon extrinsic material to reveal the true meaning of cl.572.221 for which he contended.

7. He first identifies the first respondent’s Policy and Advice Manual which provides guidance to decision makers regarding, amongst other matters, this criterion.  It elaborates on circumstances that may be considered exceptional enough for the approval of a visa application like that made by the applicant.

8. The applicant points out that PAM3 provides:

   Clause 57x.227 precludes most AL 2 and 3 applicants in any student visa subclass from being granted an initial student visa in Australia unless the applicant establishes exceptional reasons for the grant. …

9. He argues that the first respondent’s delegate acted consistently with the Policy because on 22 October, 2015 the first respondent’s department wrote to the applicant enclosing a checklist for his assistance.  The checklist provided (my emphasis):

   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.

10. He argues that when the first respondent’s delegate refused his visa application, he did so on the basis that the applicant’s application was for an “initial student visa”.  That phrase appears in the delegate’s reasons for decision in the following context (again, my emphasis):

    On 16 November 2015 you submitted a response to the Department in which you stated your reasons for the grant of your initial Student visa in Australia. I have taken into consideration your response however I am not satisfied that you have established exceptional reasons for the grant of the visa and therefore you do not meet cl. 572.227.

11. Thereafter, the delegate went on to consider the application against the criteria I have identified above. 

12. The AAT also used the phrase “initial student visa” in its reasons.  At paragraph [9] of the AAT’s statement of reasons it said (my emphasis):

    9. Clause 572.227 precludes most AL 3 applicants from being granted an initial student visa while in Australia unless the applicant establishes exceptional reasons for the grant.

13. To the extent that both the delegate and the AAT referred to cl.572.227 and its requirements applying to applications for initial student visas, the reference was not incorrect.  The criterion does indeed apply to applications for student visas where the applicant has not held a student visa of the type applied for previously.  But its application is not confined to those types of applications.  Insofar as the Policy Advice Manual might tend to suggest that cl.572.227 applies only to such visa applications, it is erroneous.

14. The Policy Advice Manual does not have any legislative authority.  Where it is inconsistent with the Regulations or the Migration Act 1958 (Cth), the Act or the Regulations prevail.

15. Moreover, in any event the AAT was not bound to apply the Policy Advice Manual at all.  Speaking of a similar policy type document Brennan P (as Sir Gerard then was) in Drake v MIEA No. 2 (1979) 2 ALD 634 at 642 said:

    It is one thing for the Minister to apply his own policy in deciding cases; it is another thing for the Tribunal to apply it.  In point of law the Tribunal is as free as the Minister to apply or not to apply that policy.  The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all in fulfilling its statutory function.  In fulfilling its function, the Tribunal being independent of the Minister, is free to adopt reasoning entirely different from the reasoning that lead to the making of the decision under review.  But it is not bound to do so.

16. As remarked by Merkel J in Karras, Monserrat Gonzales v Minister for Immigration & Multicultural Affairs Cabal, Teresa Pasini v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at:

    Government policy and guidelines are matters to which an administrative tribunal may have regard and apply.  The particular regard to be had, and the weight to be given, to the policy and guidelines is a matter for the tribunal.

17. Secondly, the applicant points to the Explanatory Statement for the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 dated April, 2016 relating to the proposed changes to the student visa subclasses.  He argues that the statements in the Explanatory Memorandum confirm the intention of cl.572.227 to apply only to applicants making a student visa application in Australia for the first time.  In particular, the applicant emphasises that the statement notes “the new simplified student visa framework will remove current restrictions on applicants from certain countries needing to demonstrate exceptional reasons for grant of an initial student visa in Australia.”

18. Whilst s.15AB(1) of the Acts Interpretation Act 1901 (Cth) provides that a court might have regard and give consideration to extrinsic material that is capable of assisting in the ascertainment of the meaning of a provision, it may only do so in the circumstances set out in that subsection. The circumstances are confined to those set out in ss.15AB(1)(a) and (1)(b). Subsection 15AB(1)(b) has no application because the relevant provisions are not ambiguous or obscure and the ordinary meaning conveyed by the text of the relevant provisions does not lead to a result that is manifestly absurd or is unreasonable.

19. The Explanatory Memorandum does not assist to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act.  That is to say, s.15AB(1)(b) is not engaged in this case.  In any event, the clear words of cl.572.221 cannot be displaced by the Explanatory Memorandum.

20. In my view, there is no warrant in the present case to have resort to either the Policy Advice Manual or the Explanatory Statement.

21. The text of the relevant criterion does not refer to an “initial student visa”.  Nowhere in any of the relevant regulations does that phrase appear.  It is not part of the text of either cll. 572.221 or 572.227 of the Regulations.  A plain reading of cl.572.221 required the applicant in this case to satisfy cl.572.222 to 572.234 (including cl.572.227).

22. As the first respondent argues, in order to construe the legislation in the way contended for by the applicant it would be necessary to read into the express language of cl.572.227(a) the words “initial student visa” prior to the word “application” or alternatively, to alter the express language of cl.572.221 (1) to ‘‘prior to the application”.  Reading additional words into a legislative provision is not a step a court will ordinarily take: Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 12; Mills v Meeking (1990) 169 CLR 214 per Mason CJ and Toohey J at 223-224. It is a course which is usually only taken where, without doing so, the literal meaning of the words in question would “lead to an incongruous result”, or would defeat the objects of the Act, or would be “capricious” or “irrational”: Parramore v Duggan (1995) 183 CLR 633 at 644 and 638; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 305, 311 and 321. None of those principles are engaged in the present case.

23. This ground reveals no jurisdictional error.

Ground Two

1. This ground is in the following terms:

   2. The Applicant asserts that the Tribunal made a finding that was error in jurisdictional fact as the First and Second Respondent failed to take into consideration the fact that the Applicant had previously held an Australian student visa.

2. Given the rejection of the applicant’s argument that the AAT had misconstrued the Regulations and ought not to have insisted upon the applicant establishing exceptional reasons for the grant of the visa, this ground has little merit.

3. The AAT did not fail to take into account the fact that the applicant had previously held a student visa.  It referred to that fact in its reasons for decision and was plainly aware of the applicant’s visa history.

Ground Three

1. Ground 3 of the amended application for review is in the following terms:

   3. The Applicant asserts that the Second Respondent, in assessing the exceptional circumstances for the grant of the visa, failed to take relevant considerations into account which was an error of jurisdiction.

2. The AAT identified all of the matters that the applicant raised to make out the relevant exceptional reasons that the applicant was bound to demonstrate if his application was to be successful.  The AAT described those matters in the following way:

   14.    … He stated that he did not want to extend his subclass 457 visa due to problems with his sponsoring employer, that he has an Australian citizen girlfriend, and that he has previously completed studies in Australia and complied with the conditions of his student visa. He enclosed copies of his several educational certificates in support. He stated that he wished to gain further expertise for his future employment by undertaking new Australian courses in leadership and management

   15.    At the hearing, the applicant stated that he could have renewed his subclass 457 visa easily, for another year, but he does not want to spend his whole life working in a restaurant. He said he wanted to develop his management skills so he enrolled in a course in Australia and applied for a student visa. The Tribunal asked why he did not return to India and apply there for a student visa. The applicant responded that he has a girlfriend in aus, they are not married or cohabiting but she is emotionally dependent on him and she is a student so she could not go back to India with him.

3. The applicant did not suggest that the tribunal misunderstood the matters raised by the applicant to demonstrate the necessary exceptional circumstances. 

4. The applicant submits that in assessing the exceptional circumstances for the grant of the applicant’s student visa, the AAT has confined itself only to the types of circumstances outlined in the Policy Advice Manual.  More particularly, the applicant suggests that the AAT did not take into account the fact that the applicant wished to pursue further study in Australia, having studied here in the past, notwithstanding that he did not at the time of his application, or of the decision, hold a student visa.  The applicant argues that the AAT confined its consideration to this aspect of the Policy Advice Manual:

   Former student visa holder or temporary visa holder

   If the applicant holds a “temporary residence” visa, under policy, exceptional reasons exist if they:

   •   have previously held a student visa and

   •   while still in Australia as the holder of the student visa, were granted a class of “temporary residence” visa listed in 57x.211 (2) and

   •   now wish to change back from “temporary residence” status to a student visa to undertake further study.

5. The applicant argues that the tribunal did not give consideration to the applicant’s desire to study again in Australia, even though he held no current student visa.

1. However, a consideration of the AAT’s reasons reveal that the Tribunal was aware that the phrase “exceptional reasons” is broadly approached (citations omitted):

   10. ‘Exceptional reasons’ in the context of cl.572.227 are not intended to be found by deciding whether the visa applicant has the ‘normal’ characteristics of an applicant who is not subject to the restriction in the criterion, nor by deciding whether he or she departs from the ‘normal’ characteristics of the group who is subject to the restriction. When determining whether ‘exceptional reasons’ have been established, the decision-maker must assume that the visa applicant ‘should not be granted the visa unless some reasons can be positively identified which justify, in the mind of the decision-maker, the grant of the visa’.

   11. Beyond such reasons being capable of being described as ‘exceptional’ in ‘ordinary parlance’, there is no prescriptive definition of the term. Similar to the phrase ‘exceptional circumstances’ in the context of visa cancellation, the emphasis of ‘exceptional reasons’ is on the term ‘exceptional’, and the term is one which may have a wide operation and no definition which limits its application should be adopted unless the limitation appears from the words of the relevant statutory provision.4 The decision-maker has “a 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”. Exceptional reasons may be demonstrated by personal circumstances.

2. The AAT thereafter considered the assistance offered by the Policy Advice Manual and then moved to its findings on the relevant issue (my emphasis):

   16. The circumstances applying to the applicant cannot, in the Tribunal’s view, be characterised as “exceptional”.

   17. Relevant Departmental policy provides a number of guides to what may constitute “exceptional circumstances”. The present case does not come within any of these examples. The Tribunal is not limited to those examples but they provide an indication of the level of exceptionality which may be applicable. The third dot point set out above, reproduced from the Departmental policy, does not apply to the applicant since he was not, as the holder of a student visa in Australia, granted any other temporary visa. He held only student visas and bridging visas. Neither does the fourth dot point apply, because although the applicant previously held a student visa, he is not now the holder of either of the identified subclasses of visa granted under s.351 of the Act.

   18. The applicant’s circumstances are not exceptional. It is contemplated under the student visa program that persons would study in Australia on a temporary basis and return to their home country with their qualifications. It is not exceptional that a person who does so might wish at a later time to engage in further study in Australia. The student visa program permits the making of a further student visa application from offshore, not while onshore except in exceptional circumstances. The desire to pursue further education is not, in that context, exceptional. Neither is it exceptional that a person present in Australia might enter into a romantic relationship with an Australia citizen or permanent resident.

3. In my view, the AAT considered the very matter to which the applicant now complains the AAT gave no attention.  The AAT considered the applicant’s desire to study in Australia in the context of his previous studies and the fact that he had held student visas in the past.  The AAT did not conclude its inquiry simply by virtue of the finding that the Policy Advice Manual did not cover the applicant’s situation.

4. This ground of review reveals no error.

Conclusion

1. The grounds of review in the amended application do not demonstrate any jurisdictional error on the part of the AAT.  In those circumstances, the amended application must be dismissed with costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date: 7 October 2016