SINGH v Minister for Immigration

[2016] FCCA 912

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 912

Catchwords:
MIGRATION – Judicial review – show cause hearing – student visa.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)
Federal Circuit Court Rules 2001 (Cth), r.44.12

Kim v Minister for Immigration [2008] FMCA 1577

First Applicant: BHARAT KUMAR SINGH

Second Applicant: GEETA SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1377 of 2015

Judgment of: Judge Harland

Hearing date: 15 April 2016

Date of Last Submission: 15 April 2016

Delivered at: Melbourne

Delivered on: 15 April 2016

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Mr Day

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application filed 1 September 2015 be dismissed.

2. The Applicant pay the costs of the Respondent fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1377 of 2015

BHARAT KUMAR SINGH

Applicant

GEETA SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This case is listed today for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).  At a show cause hearing, the applicant is limited to material that was before the Tribunal and the issue raised in show cause hearings is whether or not there is an arguable case for relief.  If there is an arguable case, then the matter proceeds to a final hearing.  If there is not an arguable case, then the Court can dismiss the matter at this stage.

3. The applicant applied for a Student (Temporary) Subclass 572 visa (“the visa”) whilst onshore in Australia.  The Migration Regulations 1994 (Cth) are quite strict in those situations, and in the category of visa he was applying for, as the Tribunal sets out, the applicant has to establish that there are exceptional circumstances applying to his situation that means he should be granted the visa.

4. Exceptional circumstances is a very high bar to meet.  By its wording, it means it has to be something out of the ordinary, something unusual, something special, and in this regard, the decision of Kim v Minister for Immigration [2008] FMCA 1577, which is a decision by Federal Magistrate Smith, discusses the nature of exceptional in paragraphs 7 and 12 in particular.

5. It is apparent from the Tribunal’s reasons at paragraphs 9 to 12 in particular that the Tribunal did consider the circumstances of the applicant.  It accepted the applicant’s explanation that he had to travel home to India to look after his sick mother.  It accepted that he wished to study and be able to then return home and work.  The Tribunal found that those circumstances do not fall into what is exceptional, and certainly it is not unusual to have people who have personal circumstances that result in them needing to go home and care for sick relatives.  It is not an unusual circumstance to have people want to study in Australia to improve their knowledge and also their prospects of working in their countries.  Those reasons do not fall into an exceptional circumstance which, by its wording in the legislation, means it has to be something out of the ordinary.

6. As indicated during this brief hearing, the bar is very high in establishing exceptional circumstances.  Certainly, the Tribunal and the Court has to apply the legislation and has to apply it in line with legal principles, and given that, having considered the decision and the application, it is clear that the application raises issues of merit, which is not what this Court is permitted to engage in; that is, that the applicant disagrees with the decision and wants to have that reargued on the substance of it or the merits of it. 

7. The applicant does not raise an issue of jurisdictional error in his application and that is not a criticism, because it is very difficult for litigants who are not lawyers to navigate the migration law in Australia and to be able to point to what a legal jurisdictional error is, and it is for that reason, particularly when people are unrepresented, it is necessary for the Court to also look at the decision to see whether or not there is anything that could indicate that there is jurisdictional error. 

8. In this case, I cannot see that there is any error.  It is clear that the Tribunal considered the claims of the applicant and considered whether or not they could fall into the category of exceptional reasons and found that they did not. 

9. The first respondent seeks costs in accordance with the Federal Circuit Court scale. I will make that order.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  21 April 2016