Arora v Minister for Immigration and Border Protection

1. The application is dismissed.
2. The applicant pay the first respondent's costs of and incidental to the application to be taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GREENWOOD J: 1 This proceeding is concerned with an application for leave to appeal from orders and a decision made by the Federal Circuit Court of Australia on 8 December 2016: Arora v Minister for Immigration and Anor [2016] FCCA 3344. The applicant in the proceeding sent an email to the Federal Court of Australia on 1 May 2017 in relation to the listing of the matter which was to be heard at 11.30am on 1 May 2017. The applicant in that email received by the court at 10.11am on 1 May 2017 said this, relevantly: … I have the hearing [on] 11.30am on 1st may 2017 this morning. But unfortunately i got a small incident and i get slipped and [because] of that my knee got twisted and start hurting … so even i want [but] i [can't] walk so i have a small request to [honourable] court [that] if i can get some other time to represent myself i know [it's] very short request but if you can help will be appreciated. Thanks. 2 In response, the Court sent an email to the applicant at the address provided to the Court by the applicant for communications about proceedings before the Court and in that email the Court advised the applicant that the matter had been adjourned until 10.15am on Thursday, 4 May 2017. The matter was called on this morning in accordance with the adjournment to today which, of course, was made to accommodate the request of the applicant. This morning, the applicant failed to appear and investigations were made by my Associate to see whether the applicant was outside the Court or otherwise available. The applicant was not able to be located and the matter was then called on or about 10.30am. The applicant was called and failed to appear. 3 That may, in part, be explained by the circumstance that at 9.20pm last night the applicant sent an email to the solicitors for the Minister in which the applicant relevantly said this: My name is sourabh arora and … i had the hearing at 11.30am on 1st of may 2017. But unfortunately i got a small accident and my knee got twisted and i couldn't attend that day and i got another date on 4/05/2017 10.15am but still [it's] hard for me to make so i have a small request to you and the [honourable] court that if i can get some other time to represent myself will be appreciated. Thanks. 4 The email to the solicitors for the Minister, of course, makes it plain that the applicant received the email by which notification was given that the matter would be listed at 10.15am today. The applicant, as I say, has not appeared this morning. The solicitors for the Minister responded on 4 May 2017 to advise the applicant that the application for a further adjournment would be opposed and noted that no explanation had been properly given for the further request. Certainly, no medical certificates or other medical evidence has been provided in relation to the further request. The applicant is self-represented in the matter and I am invited by reason of the applicant's non-attendance this morning to dismiss the application pursuant to the Rules of the Federal Court of Australia which confer the power to dismiss the application in the event that the applicant fails to appear. 5 I do not propose to dismiss the application on that ground. Rather, I propose to address the substance and merits of the matter and deal with the application not on the procedural default basis but rather on the merits itself. 6 As to that matter, the application for leave to appeal recites three grounds. The first is that the Federal Circuit Court made a decision "without considering all facts and information and disregarding the evidence it had on file". The second ground is that the Federal Circuit Court erred in not assessing the review grounds submitted to the Tribunal in regard to "compelling and compassionate circumstances I had for not meeting the required migration regulation at the time of my visa application". The third ground is that the Federal Circuit Court failed to "see that [the] Tribunal did not allow procedural fairness and natural justice and erred in not having considered my exceptional circumstances". 7 The applicant filed an affidavit in support of the application for leave to appeal. That affidavit was filed on 19 December 2016 and it simply recites the three grounds which I have just mentioned. 8 By the principal proceedings in the Federal Circuit Court of Australia, the applicant sought to demonstrate that the Administrative Appeals Tribunal ("AAT") in its Migration and Review Division had fallen into jurisdictional error in reaching the decision that it reached in the discharge of the statutory review function. Before the Federal Circuit Court of Australia, the applicant asserted that jurisdictional error arose on three grounds. The first ground was that the Tribunal took into account irrelevant considerations. The second ground was that the Tribunal erred in law. The third was that the Tribunal failed to take account of relevant considerations. 9 Again, the applicant filed an affidavit in support of that application in which the applicant simply said that the Tribunal had handed down a decision on 15 February 2016 (the decision was attached to the affidavit) and that the Tribunal had erred in law. The Federal Circuit Court of Australia observed correctly that the grounds upon which the applicant relied in seeking to demonstrate jurisdictional error were devoid of any particularity and essentially had no content to them at all. The decision sought to be impugned was a decision of the AAT in which the decision-maker was called upon to determine whether or not it could be satisfied that the applicant had made good the condition governing the subclass of visa for which the applicant had applied. 10 Put simply, the relevant requirement which had to be made good was that the applicant had established exceptional reasons for the grant of a Subclass 572 visa. In order to do that the applicant contended before the Tribunal that a number of factors suggested that "exceptional reasons" for the grant of a Subclass 572 visa existed. The relevant statutory phrase is "exceptional reasons". The factors the applicant relied upon were these. First he was keen to study something of value to his future. Second, he did not receive accurate information about the visa criterion. Third, he was actually planning to return home to India but was persuaded that there were good career prospects in marketing, in Australia. Fourth, he did not go offshore to apply for the visa because he did not know about the criterion and it was inconvenient for him to do so. 11 The criterion he is talking about, of course, is the obligation to make good that exceptional reasons subsisted for the grant of a Subclause 572 visa, having regard to the statutory provisions to be found in cl 572.227. In addressing the question of whether exceptional reasons had been made good, the Tribunal reached a number of findings. I should mention that it did so in the context of the applicant having been given "further opportunity to propose further matters for the [T]ribunal to consider, but [the applicant] did not add appreciably to the points above". In that context, the Tribunal made a number of findings in relation to the preconditions which needed to be satisfied before the element of making good exceptional reasons was engaged. There was no controversy about those preconditions. The controversy is whether or not the Tribunal fell into error in its assessment of the exceptional reasons element of the requirements. 12 The Tribunal said these things: 23. The tribunal accepts the applicant's evidence that he held a Subclass 457 visa at the time of application. 24. The tribunal finds that to meet cl 572.227, the applicant must establish exceptional reasons for the grant of the visa. 25. As suggested to the applicant, the tribunal does not consider being ignorant of the visa criteria, or having received poor, inaccurate or incomplete advice, to constitute exceptional reasons for granting the visa. 26. The tribunal does not consider that matters of convenience (in making the application in Australia and not travelling offshore to make the application) constitute exceptional reasons for granting the visa. 27. Finally, the tribunal does not consider that any combination of the reasons proffered, or all of them taken together cumulatively, constitute exceptional reasons for granting the visa. 28. The tribunal finds that there are no exceptional reasons for granting the visa, and the applicant does not meet cl 572.227. 29. Each of the other subclasses within Class TU contains an equivalent criterion to cl 572.227, requiring that the applicant establish exceptional reasons for the grant of the visa. For the reasons above the applicant fails against each of those criteria and subclasses. 30. The tribunal affirms the decision under review. 13 Having regard to those reasons, the Federal Circuit of Australia turned to the question of whether there were grounds either articulated by the applicant or apparent on the face of the material which suggest that the Tribunal may have fallen into jurisdictional error. The Federal Circuit Court, in its reasons for judgment of 8 December 2016, recited aspects of the findings and reasoning of the Tribunal, and then observed at [13] that the Tribunal had found that the applicant did not meet cl 572.227 of Sch 2 of the Regulations. The Federal Circuit Court expressed agreement with that conclusion. 14 The Federal Circuit Court also observed at [14] that the applicant (who appeared before the Federal Circuit Court) said before the Court that he did not believe that the Tribunal "did anything wrong". The observations of the applicant to that effect suggest, of course, that the applicant was really inviting the Federal Circuit Court of Australia to review the merits and reconsider for itself the merits or otherwise of the position. Plainly enough, the Federal Circuit Court cannot take that course. It was necessary for the Court to be satisfied that there was error on the part of the Tribunal which constitutes jurisdictional error. 15 The question of whether an applicant, in the position of the present applicant, has demonstrated that exceptional reasons subsist for the grant of the visa is a question of fact, but one which must be judged against the background of the statutory framework which means that the Tribunal and the Court must have regard to the text, context and purpose of the legislation. The Federal Circuit Court approached the matter on the footing that the statutory term "exceptional reasons" contained within the Migration Regulations 1994 (Cth) made for the purpose of the Migration Act 1958 (Cth) has a meaning which is consistent with the observations of Buchanan J in Kim v Minister for Immigration and Citizenship [2009] FCA 161. 16 In that decision, Buchanan J observed that the statutory term "exceptional reasons" means reasons that are "unusual or out of the ordinary". The authority cited for that construction is Hatcher v Cohn (2004) 139 FCR 425 at [49] - [50]. 17 In that authority, Kiefel J was considering the relevant provisions of the Health Insurance Act 1973 (Cth) and, in particular, s 106KA of that Act. The relevant provisions in issue in that case concerned a Professional Services Review Scheme established under that Act which was directed to determining whether the provision of medical services may have contravened the Act. 18 The Health Insurance Act 1973 (Cth) set up a scheme for determining particular matters, and provided that if during a particular period the circumstances in which some or all of particular services were rendered by a practitioner amounting to a "prescribed pattern of services", the practitioner would be "taken" to have engaged in "inappropriate practice". However, that deeming effect would not arise having regard to whether s 106KA(2) was engaged. That section provided that if the person under review satisfies the committee that on a particular day or particular days during the relevant period, "exceptional circumstances" existed that affected the rendering or initiating of services by the relevant persons, conduct in connection with rendering or initiating services on that day or those days is not taken, by subsection (1), to have constituted engaging in inappropriate practice. 19 Thus, the question before Kiefel J was whether or not "exceptional circumstances" had been made good. In that context, her Honour regarded exceptional circumstances as being those circumstances which were unusual or out of the ordinary. The phrase in the present legislation, of course, is "exceptional reasons" not "exceptional circumstances". Her Honour's decision was subject to appeal. The appeal was successful and the orders her Honour made were set aside: Cohn v Hatcher (2005) 146 FCR 275. However, the appeal did not contradict the approach taken by the primary judge to the meaning of exceptional circumstances. Nevertheless, the statutory regime in the present application is entirely different and has its own text, context and purpose. 20 In order to determine whether or not "exceptional reasons" subsist, the statutory test would need to be examined carefully in the context of the text, context and purpose of the present legislation. In the appeal from Kiefel J, the Full Court of the Federal Court observed that it would be wrong to limit the circumstances which might be regarded as "exceptional". That follows, because the statute has used a phrase which adopts broad terms. 21 The Full Court also observed that when considering exceptional circumstances in the context of that statutory regime, regard had to be had to circumstances which could properly be characterised as "unusual" or "out of the ordinary" but that did not mean substituting the language of the Act, "exceptional circumstances", with the phrase "unusual or out of the ordinary": Cohn v Hatcher, Lander J at [58] to [63], Black CJ agreeing at [1], Wilcox J agreeing at [2]. The phrase adopted in the statutory regime in issue in these proceedings is "exceptional reasons". It is a very broadly-based phrase engaging a wide range of circumstances which may be considered by the Tribunal on a case by case basis. 22 In this particular proceeding, it is not necessary to examine in detail the precise text, context and purpose of the Act in order to answer the question of whether or not the Tribunal fell into jurisdictional error. That follows because the language of the particular condition is broadly framed and on any view of the matter, the applicant failed to put forward a calculus of factors which could be regarded as exceptional factors, thus giving rise to "exceptional reasons". In other words, this particular application is a very good example of what I regard as a gross failure to demonstrate factors which could be regarded as exceptional reasons for the grant of the visa. In the course of the Federal Circuit Court proceedings, the Federal Circuit Court observes in the reasons at [16] that the applicant told the Court that "a visa could be good for me". 23 It seems clear enough that the applicant failed to have regard to the conditions of the visa and failed to have regard to the need to put forward circumstances and factors which could reasonably and properly give rise to the conclusion that "exceptional reasons" subsisted for the grant of the visa. In my view, the Federal Circuit Court of Australia did not fall into error of any kind in addressing the question of whether the Tribunal had fallen into jurisdictional error. 24 The orders of the Federal Circuit Court of Australia are not attended by any error and thus it follows that the application for leave to appeal must be dismissed, not on the procedural ground of non-appearance, but rather on the substantial ground that the application has no merit whatsoever. 25 Thus, the application will be dismissed with an order that the applicant pay the costs of and incidental to the application for leave to appeal to be either agreed or taxed. I certify that the preceding twenty-five (25) numbered paragraph are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.