(2) The applicant must pay the first respondent's costs in the amount of $5,000.
[2]
Ms Kim came to Australia in 1999 at the age of nine with her parents and brother, and remained here as a secondary visa holder on a series of temporary business visas given to her father. She went to primary and high schools in Sydney, and enrolled in further education. Her parents returned to South Korea in 2007, and her last substantive visa expired on 12 August 2007. She remained living with her brother at Rockdale, and in February 2008 she commenced a three year Bachelor of Applied Finance course with a college run by Macquarie University. To permit this study, she applied on 8 May 2007 for a 'higher education sector' subclass 573 student visa.
Under the Migration Regulations Sch.2 cl.573.227, most applicants who are subject to an 'assessment level' higher than level 1, and who have not previously held a student visa, are precluded from being granted this visa on-shore unless "the applicant establishes exceptional reasons for the grant of a Subclass 573 visa". Pursuant to the relevant Gazette Notice, Ms Kim was subject to 'assessment level 2' as the holder of a South Korean passport.
Ms Kim's visa application was refused by a delegate on 7 August 2007 on the ground that she was precluded by this criterion. The Tribunal affirmed the decision on 30 April 2008 for the same reason. I am now asked to set aside the Tribunal's decision and to remit the matter, on the ground that it was affected by jurisdictional error. I do not have power myself to decide whether Ms Kim should be given the visa or any other permission to stay in Australia.
The Migration Regulations leave obscure the policy reasons why they discriminate against the passport holders of some countries, but not those of other countries, when they require them to show 'exceptional reasons' for the grant of on-shore subclass 573 and other student visas. It is therefore difficult to identify the considerations which should inform the application of the 'exceptional reasons' dispensing power. The obscurity of the regulatory policy was not lifted in the present case by the delegate's reasons, the Tribunal's reasons, or the submissions of counsel for both parties.
The Tribunal said only that "those words mean reasons that are 'unusual' or 'out of the ordinary'", and it gave no further indication as to the considerations which might have caused it to be persuaded to grant the visa to a person who is subject to the preclusion. It tersely rejected Ms Kim's arguments that her long association with Australia, her reasonable desire to continue her education here, and her difficulty adjusting to a return to South Korea, could provide exceptional reasons. Nor did it think that the fact that Ms Kim's brother had gained permanent residency under a 'close ties' visa, which was no longer available to Ms Kim, provided an exceptional reason - although it did not explain why not.
I shall examine more closely the parts of the Tribunal's reasoning which were challenged in the submissions of Ms Kim's counsel. However, I shall first explain why I have concluded that it is impossible to detect from the framing of the Migration Regulations any particular considerations which, as a matter of law, must confine or focus a decision-maker's decision on the existence of 'exceptional reasons' for granting an on-shore student visa to a person who is subject to an assessment level.
The word 'exceptional' has dictionary meanings: "of the nature of or forming an exception; out of the ordinary course, unusual, special" (OED). It is commonly used in legislation when giving a decision-maker a power to identify circumstances or reasons justifying the lifting of a statutory rule, where it is intended that the rule will normally apply. On some occasions, the considerations which are intended to identify an exceptional case are expressly or implicitly shown in the framing of the power, but in others the relevant considerations are left undefined. In the latter situation, the decision-maker may appear to be given a very broad discretion to identify and weigh the considerations upon which he or she will decide whether to dispense with the normal rule.
Authorities which indicate the usual approach of a court on judicial review of dispensing powers were collected by French J in Boscolo v Secretary, Department of Social Security[1999] FCA 106; (1999) 90 FCR 531 at [18]:
[18]The word "special" conditioning "reasons" or "circumstances" guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened. A Full Court has spoken of it as having content which is " ... sufficiently understood not to require judicial gloss": Beadle v Director-General of Social Security [1984] AATA 176; (1985) 60 ALR 225 at 228. If helpful to speak in terms of its meaning almost all of it comes from context. Thus man may be "special" in relation to animals generally but " ... when you are speaking of poets, he may need to be a Milton": Holpitt Pty Ltd v Varimu Pty Ltd [1991] FCA 269; (1991) 29 FCR 576 at 578; [1991] FCA 269; 103 ALR 684 at 686 per Burchett J. It is an elastic instruction suitable for application across a range of situations: Jess v Scott (1986)12 FCR 187; 70 ALR 185. This is just another way of pointing to its instrumental character. That application is not to be confined by precise limits or rules: Beadle at 228. Circumstances or reasons will not necessarily fall outside the designation of "special" because they fall within a class which is widely defined or because they are circumstances or reasons which can be foreseen before they arise: Hutchins; Jarlas Pty Ltd v Commissioner of Taxation (Cth) (1987)14 FCR 510 at 527; 74 ALR 455 at 473. The core of the requirement for "special circumstances" or "special reasons" is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Minister for Community Services and Health v Chee Keong Thoo [1988] FCA 54; (1988) 8 AAR 245 at 261-262; [1988] FCA 54; 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson [1992] FCA 338; (1992)37 FCR 32; 108 ALR 322. In Beadle the Full Court, having concluded that the term "special" was sufficiently well understood not to require a judicial gloss said the matter was one for the decision-maker, in that case the Director-General of Social Security.
In that case, the Secretary had power to allow a welfare beneficiary to receive a higher 'single' rate of pension rather than the lower rate for members of a couple, if satisfied "that the person should, for a special reason in the particular case not be treated as a member of a couple for the purposes of this Act." French J said that this required the decision-maker "to focus on the position of one person, not the couple, and to assess whether that person should for a special reason not be treated as a member of the couple". The Tribunal had failed to give its consideration of the relevant circumstances this focus, and the matter was remitted.
In Hatcher v Cohn[2004] FCA 1548; (2004) 139 FCR 425 a medical practitioner could avoid a statutory cap on the number of patient services provided under Medicare, if he satisfied a committee that "exceptional circumstances existed that affected the rendering or initiating of services" by the practitioner. The cap implemented a policy against 'overservicing'. Keifel J said:
[49]"Exceptional" circumstances, in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances. Speaking in the context of extradition, Gleeson CJ, McHugh and Gummow JJ have held that "special circumstances" need to be "extraordinary and not factors applicable to all defendants facing extradition". It was not necessary that any particular circumstance be regarded as special; several factors in combination could constitute special circumstances: United Mexican States v Cabal [2001] HCA 60; (2001)209 CLR 165 at [52]. And in Baker v The Queen [2004] HCA 45; (2004)78 ALJR 1483 Gleeson CJ considered the use of "special circumstances" to condition the exercise of judicial discretion. His Honour said:
"This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors."
[50]Although his Honour was speaking of judicial decision-making the observations are apposite here. The words "exceptional circumstances" may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the words of the relevant statutory provision. That is a question which arises here.
[51]The process of construing words in a statute must always begin with an examination of the context of the provision being construed: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998)194 CLR 355. As was there pointed out, the object of statutory construction is to construe a provision so that it is consistent with the language and the purpose of the provisions of the statute as a whole. It is necessary to give meaning to each word of a provision (at [71]). And words are to be assumed to be used consistently: Craig, Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450 at 452, unless a contrary intention appears.
[52]Section 106KA(2) has the effect that a finding of inappropriate practice which would otherwise be made under s 106KA(1) is not to be made. The reason it is not made is that the Committee is satisfied that the explanation provided by the practitioner, as to why the practitioner was required to attend upon so many patients on the days in question, identifies exceptional circumstances. The "exceptional circumstances" are therefore an unusual circumstance or circumstances which caused or influenced the practitioner to exceed the number of services which ought to have been provided or which otherwise provides the explanation for that conduct. This connexion is confirmed by the reference in the subsection to circumstances which existed "that affected" the rendering of services.
On appeal, this discussion received qualified approval from Lander J, with whom Black CJ and Wilcox J agreed (see Cohn v Hatcher[2005] FCAFC 199; (2005) 146 FCR 275 at [58]):
[58]First, the medical practitioner may simply establish that on a particular day or days exceptional circumstances existed. In that regard, it would be wrong to limit the circumstances which may be exceptional. By definition they are exceptional and therefore unusual or out of the ordinary. It follows that I agree with Her Honour's reasons at [49] and [52] that, when considering exceptional circumstances in the context of s 106KA(2), regard must be had to circumstances which are unusual or out of the ordinary. But that does not mean that those words are to be substituted for the words in the Act. However, generally in the context to which I have referred, "exceptional circumstances" may be understood to be unusual or out of the ordinary.
These authorities, like others from a diverse range of legislative contexts, suggest that a Court should examine the legislation which confers the 'exceptional reasons' dispensing power, so as to identify the normal 'rule', the classes of persons who are subject to it, and the purposes of making them normally subject to the rule. If these things are discernable, they may provide the logical starting point for considering why an exception should be made for a particular person. In particular, they may show whether the legislation intends a particular focus in an assessment of the applicant's circumstances or of some extrinsic circumstance, or in a comparison with the circumstances of other people, when deciding whether the applicant has presented 'reasons' which justifies making an exception to the normal rule.
In the present case, the normal rule is that persons holding identified classes of current visas, and with assessment levels higher than 1, are not granted this subclass of student visa if they apply while they are present in Australia. If the dispensing power can be given structure from this context, then it should reveal what are the relevant considerations for deciding whether there are exceptional reasons for granting the visa to the applicant. Jurisdictional error would be found, if a decision-maker strayed beyond these considerations or failed to address them.
If a particular focus or subject matter or comparison cannot be given to an 'exceptional reasons' dispensing power by a process of legislative construction, then the power should be construed to be unconfined except by its general legislative context and objects. This assumes that the power could be validly conferred in unconfined terms, and that the imprecision of the power would not leave it so meaningless as to be ultra vires (cf. the contention which I recently addressed in Lee v Minister for Immigration & Citizenship[2008] FMCA 1523). However, both parties before me assumed that the Migration Act would allow the making of a regulation conferring an unconfined 'exceptional reasons' dispensing discretion in the present terms.
The general legislative context of the present criterion is a scheme to regulate entry and residence in Australia through the grant of visas 'in the national interest' (see Migration Acts.4). In effect, an unconfined construction would treat the words 'exceptional reasons for the grant' in cl.573.227 as providing no more than that the decision-maker may give effect to any rational reasons for dispensing with the preclusion which would otherwise apply to the applicant. If the possibly relevant grounds of exception are unconfined, the 'reasons' could be found in the personal circumstances of the visa applicant which have a rational bearing on a discretion to grant him or her the visa. It may not be necessary to compare his or circumstances with an identified 'normal' group of precluded applicants. The power may also allow a decision-maker to find sufficient justification for lifting the preclusion arising from a wide range of other circumstances or considerations.
Considering the present statutory context more closely, the criteria applicable to subclass 573 visas requires the current holding of an identified class of visa, and the proposing of studies in which the applicant has obtained enrolment (see also the application requirements for all class TU visas in Sch.1 cl.1222). They require the applicant to satisfy the Minister as to English language proficiency, financial capacity to undertake the study, and that the applicant "is a genuine applicant for entry and stay as a student". A range of 'public interest' criteria are also required to be met, addressing matters of good character, public security, health, and other matters. It might, then, be asked why should a person who meets all of these requirements, also be required to establish exceptional reasons for being granted the visa?
Clause 573.227 imposes a time-of-decision blanket ban on the grant of an on-shore student visa to a diverse, but potentially very large, group of otherwise eligible applicants, if they hold passports from countries which are subject to an 'assessment level' of 2 or higher. Applicants who are eligible for the visa as current holders of other classes of visas, or who hold passports from countries with 'assessment level 1', are not subject to the ban.
Relevant to the making of the present decision, cl.573.227 was in these terms:
(B) who, immediately before ceasing to hold a substantive visa, was the holder of a visa mentioned in subparagraph (i), (ii) or (iii);
the applicant establishes exceptional reasons for the grant of a Subclass 573 visa.
In its context, it might appear that the dispensing power could, or must, be exercised by comparing an applicant's circumstances with those of visa applicants who are not subject to the preclusion. This would involve comparing the persons who are in the classes of current visa holders who are subject to the preclusion, with those holding eligible current visas who are not subject to the preclusion. It would then involve comparing persons within the group of applicants holding susceptible current visas, but who have different 'assessment levels'. The affected applicant's circumstances could be compared with a 'normal' applicant from the assessment level 1 group of susceptible current visa holders, to see whether he or she would better be treated as coming from an 'assessment level' 1 country rather than from a country with a higher 'assessment level'. This could be performed by reference to the policies which differentiate relevantly affected applicants from level 1 countries from those from levels 2, 3, 4, and 5 countries.
However, as the following analysis reveals, it is almost impossible to perform this comparison at an individual level, and the policy structure of the relevant regulations and Gazette Notice is so impenetrable as to make it unlikely that it was intended by cl.573.227. The structure suggests, rather, that a nearly unconfined discretion to identify 'exceptional reasons' is intended by the Regulations.
It is useful first to consider which on-shore visa applicants from level 2 and higher assessment level countries are made subject to the normal preclusion on the grant of a student visa. They are identified as applicants who currently hold one of the classes of visa listed in par.(c) of cl.573.227. This list repeats most of the types of current visas which would otherwise provide eligibility for the visa under cl.573.211. The significant omissions from the preclusion are all current Student (Temporary) (Class TU) visa holders, and also the holders and dependents of diplomatic or consular visas.
The possible diplomatic reasons for omitting the latter group from an 'assessment level' preclusion are apparent. The policy reasons for omitting all current holders of student visas are less apparent. The omission produces the result that applicants who already have been permitted to enter Australia for study, are not required to show 'exceptional reasons' before they are allowed to continue in Australia for the purpose of study in the 'Higher Education Sector' or under other student visas, regardless of their 'assessment level'. The policy for this appears to derive both from concerns about 'immigration risks' from allowing applicants who currently do not hold student visas to change the basis of their temporary residence in Australia by becoming students, and also a desire to encourage overseas students to continue their education in Australia and to become permanent migrants. Other immigration policies might also have had influence.
Beyond the negative characteristic of not holding current student or diplomatic visas, it is difficult to discover why all the other potential on-shore visa applicants are made subject to the preclusion unless they come from assessment level 1 countries. The list of their current visa types is so diverse, that it is impossible to detect any unifying likely characteristics, in particular, rendering them more likely to be 'immigration risks' or less attractive potential students or migrants, than if they held a current student visa or came from an assessment level 1 country.
The difficulty in characterising a comparator group arising from the list of visa types in cl.573.227(c) is then compounded when considering cl.573.227(b), because it is also difficult to distil relevant distinctions between persons from the different assessment levels of potential visa applicants' countries.
The identification of the applicants coming within par.(c) who are subject to the 'assessment level' preclusion by reason of par.(b), is performed by the Minister through Gazette Notices made under Migration Regulation 1.41(1). The Minister is directed how to make these:
1.41Assessment levels to be specified by Minister
(1)....
(2) In specifying an assessment level, the Minister must consider the risk posed by applicants who hold a kind of eligible passport in terms of:
(a) their being genuine students; and
(b) their engaging, while in Australia, in conduct (including omissions) not contemplated by the visa.
(3) In considering the risk, the Minister must have regard to:
(a) 1 or more of the following statistics prepared by the Secretary in relation to the kind of eligible passport:
(i) the number of former holders of student visas who have become unlawful non-citizens;
(ii) the number of student visas that have been cancelled;
(iii) the number of applications for student visas that have been refused;
(iv) the number of fraudulent documents detected by Immigration in relation to applications for student visas;
(v) the number of holders of student visas who have applied for protection visas or for permanent visas other than Business Skills (Residence) (Class BH), Business Skills - Established Business (Residence) (Class BH), Business Skills (Residence) (Class DF), Business Skills - Business Talent (Migrant) (Class EA), Skilled - Independent Overseas Student (Class DD) and Skilled - Australian-sponsored Overseas Student (Class DE) visas; and
(b) any other matters that the Minister considers relevant.
(4) The assessment level specified for a kind of eligible passport:
(a) must be a number from 1 to 5, with assessment level 1 specified for a passport, holders of which pose a very low risk and assessment level 5 specified for a passport, holders of which pose an extremely high risk; and
(b) is not required to be the same for each subclass of student visa.
Some of the reasons for the scheme of 'assessment levels' are suggested in the Explanatory Statement to the Migration Amendment Regulations 2001 (No.5) SR no.162, which introduced the 'assessment level' criteria found in cl.573.227. It explained the creation of the current visa classes and subclasses with respect to overseas students, which:
[3]
replace the existing three visa subclasses in the Student (Temporary) (Class TU) visa with seven new visa subclasses, to:
[4]
better manage the varying risk levels of different countries and different education sectors;
better target those markets that attract genuine overseas students;
enable managed growth in emerging student markets;
provide greater transparency in student visa processing; and
provide greater consistency in student visa processing onshore and offshore;
allow better collection of and reporting on data for the administration of the student visa program.
This explanation confirms the variety of policy objectives underlying the Minister's power to ascribe an 'assessment level' to the holders of passports from particular countries. Reg.1.41(3) suggests that the Minister may be influenced by statistical information which correlates countries of origin with the numbers of overstaying, fraudulent or cancelled visa holders. However, it also permits him to take into account other matters "that the Minister considers relevant". The explanatory memorandum suggests that he might find countervailing considerations based on an assessment of benefits to Australia from encouraging the nationals of a particular country to extend their stay by being granted student visas on-shore.
It may be permissible to refer to the content of the Minister's notices, for the purpose of understanding the scheme of the Regulations (cf. Thorn EMI Pty Ltd v Commissioner of Taxation(1987) 13 FCR 491 at 498, and Pearce and Geddes, Statutory Interpretation in Australia, 5th Ed. [3.37]). However, this is not helpful in the present context. For example, consider the Gazette Notice which commenced on 1 November 2005, under which Ms Kim received assessment level 2 as the holder of a Republic of Korea passport. This precluded group included the passport holders of Argentina, Indonesia, Lithuania, New Zealand, and Saudi Arabia, as well as South Korea. It is most difficult, without further explanation, to detect the relevant differences between potential applicants from these countries, compared with those holding preferred level 1 passports from Bahrain, Estonia, Malaysia, and Peru.
In short, reference to the relevant Gazette Notice which gave rise to the need for Ms Kim to establish exceptional reasons for the grant of a student visa on-shore gives no assistance in identifying comparator groups of persons who either are, or are not, subject to the ban on the on-shore grant of student visas. In my opinion, it tends to confirm an intention which the complex structure of the regulations suggests. This is that 'exceptional reasons' 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 ban imposed by cl.573.227, nor by deciding whether he or she departs from the 'normal' characteristics of the group who are subject to the ban.
Rather, the decision-maker is required to assume that a visa applicant caught by the criterion 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. The reasons must be capable of being described as 'exceptional reasons' in ordinary parlance. Beyond this, it is impossible for the Court to be generally prescriptive as to what these reasons might be, or must be, as a matter of law. In effect, once it is concluded that the Regulations do not define the relevant circumstances for finding 'exceptional reasons' under cl.573.227 by providing a particular focus or comparison or subject matter, the criterion should be allowed to operate so that a decision-maker is given 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.
This lengthy excursus into the legal effect of cl.573.227 brings me to the reasoning of the present Tribunal, and to the grounds upon which it is contended that it reveals jurisdictional error.
It is convenient to extract the Tribunal's full reasoning, which was brief:
29. As the visa applicant is subject to assessment level 2, then, at the time of decision, she must satisfy clause 573.227. According to that provision, because at the time of application, the applicant held a Class (UC) Temporary Resident subclass 457 visa she must establish exceptional reasons for the grant of the subclass 573 visa. Whilst exceptional reasons is not defined in the legislation, the Tribunal is of the view that those words mean reasons that are 'unusual' or 'out of the ordinary'.
30. The applicant stated and the Tribunal accepts that she has lived and attended school in Australia from the age of 9 years. She left school in Year 11 and completed a Certificate course in Information Technology. She enrolled in a Bachelor of Applied Finance at Macquarie International on 25 February 2008. Her parents returned to South Korea in the later part of 2007 and her 22 year old brother is living in Australia and is a permanent resident or citizen.
31. The Tribunal does not accept that the applicant has established exceptional reasons for the grant of the subclass 573 visa.
32. The Tribunal does not accept the applicant's submissions that the payment of tertiary fees constitutes a financial benefit which could be characterised as exceptional. The payment of fees is not unusual or out of the ordinary for international or Australian students studying for tertiary qualifications.
33. The applicant came to Australia in 1999 and lived here with her parents during her school years. Her parents were temporary residents of Australia and have returned to South Korea where they own their home and run an export business. They have had the financial resources to support the applicant during her stay in Australia. Families who live in Australia on temporary visas must necessarily adapt to a change in their circumstances when they depart Australia and such changes would be anticipated by temporary visa holders at the time of grant. The Tribunal does not accept that adaption to the Korean culture and system for the applicant would be unusual or out of the ordinary in these circumstances.
34. The applicant completed her NSW School Certificate in 2005 and one semester of Yr 11 of high school studies in 2006. She then completed a Certificate course in Information Technology in 2006. She applied for a subclass 573 student visa in May 2007 and her application was refused in August 2007 well before she started the Applied Finance course at Macquarie International on 25 February 2008. The Tribunal does not consider that the applicant would be prejudiced by withdrawal from her current studies at this early stage.
35. She stated that it would be difficult to adapt to a different educational system in South Korea where she would not have the support of friends as she would have in Australia. She also stated that her Korean language skills were not comparable with other Korean students. The applicant appeared to have a good knowledge of conversational Korean which she demonstrated in her discussions with her advisor and mother during the hearing. Whilst her Korean may not be comparable with her contemporaries in South Korea she is conversant with the language. Further she has knowledge of English and the Tribunal would expect that having English as a second language could give her some educational advantages in South Korea. The Tribunal does not accept the anticipated difficulty in adapting to the education system in South Korea to be an exceptional reason for granting a student visa.
Ms Kim's counsel relied upon grounds 2 and 3 in an amended application:
2. The Tribunal failed to ask itself the right questions.
Particulars
(a) The Tribunal asked,
(i) Whether payment of tertiary fees by the applicant could be classed as exceptional.
(ii) Whether the need for the applicant to adapt to Korean culture would be unusual or out of the ordinary,
(iii) Whether the applicant would be prejudiced by withdrawal from her current university course.
(b) The Tribunal should have asked itself, in each case, whether the stated reason was an exceptional reason for the grant of a student visa.
(c) The Tribunal also failed to ask itself whether the reasons put forward by the applicant were, considered cumulatively, exceptional reasons for granting a sub class 573 visa.
3. The Tribunal took an irrelevant consideration into account.
Particulars
(a) That the applicant's student visa application had been refused by the Department of Immigration prior to her commencing her current course.
The written submission of counsel for Ms Kim "accepted that 'exceptional reasons' are those which are unusual or out of the ordinary, and that the applicant must establish such reasons for the grant of the visa". However, he submitted:
12. In my submission the Tribunal failed to lawfully apply that test in several aspects of its consideration of the applicant's case. These are,
(a) The test that the Tribunal considered at CB 95 [32] was whether the payment of tertiary fees was exceptional. It should have considered whether the payment of such fees provided an "exception reason" for the grant of the visa.
(b) The Tribunal's conclusion at CB 95 [33], that families here on temporary visas must adapt to change when they depart, and that such adaption would not be exceptional, is not the point. The claim made, by reference to PAM (CB 79) was that Ms Kim had been here since the age of 9, that her parents had departed, and that she had commenced a further course of study in the country where she had been educated. The issue was whether in those circumstances there were exceptional reasons for grant of a student visa. In my submission the Tribunal neither addressed the case put by the applicant nor did it address the issue posed by the legislation.
(c) Similarly, the fact her visa application was refused prior to her starting the course at Macquarie University, and that she may not (on the Tribunal's reckoning) be prejudiced by withdrawal at this stage (CB 95 [34]), does not satisfactorily address the question of whether there are exceptional reasons for granting a student visa.
First, the fact that her student visa application was refused prior to her entry into her current course is irrelevant. The relevant criterion had to be satisfied at the time of the decision.
Second, prejudice to the applicant, if prejudice existed, may have been relevant to the existence of "exceptional reasons", but the absence of such prejudice is not determinative. In treating it as being so the Tribunal asked itself the wrong question, or failed to ask the right question.
(d) In addition, the Tribunal failed to cumulatively consider the applicant's individual reasons for claiming that there were "exceptional reasons" for granting her a student visa.
13. There is another claim that was not addressed, and that was that Ms Kim or her family had invested a considerable amount of money in her course at Macquarie University, and stood to lose part or all of it if her enrolment was peremptorily terminated. In my submission this clearly arose on the case made by Ms Kim, through her solicitors. To fail to address it constitutes jurisdictional error (NABE v Minister for Immigration [2004] FCAFC 263; , [63])
I am not persuaded by these submissions.
In my opinion, the attack on [32] of the Tribunal's reasons does not approach the language of the Tribunal with the understanding required by authority (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang[1996] HCA 6; (1996) 185 CLR 259 at 277 and 291). In effect, the Tribunal said that it did not consider that the payment of tertiary education fees by Ms Kim provided exceptional reasons for the purposes of cl.573.227.
In my opinion, it was open to the Tribunal to consider whether exceptional reasons should be identified from the circumstance that the applicant would be paying tertiary education fees if she was permitted to stay in Australia. This was one of the submissions made to it by her migration agent. The Tribunal then did not err in law, by considering whether this circumstance would be unusual or out of the ordinary. As I have explained, the word 'exceptional' invites or allows such an inquiry.
Nor, in my opinion, is error shown in paragraph [33], where the Tribunal addressed Ms Kim's argument based on hardship in adjusting to a return to Korea. As I have explained above, the breadth of the power to identify 'exceptional reasons' at least permits the Tribunal to test an applicant's contentions by considering whether the Tribunal regards them as relevantly unusual or out of the ordinary. I can identify no jurisdictional error in the Tribunal taking into consideration that difficulties of cultural adaptation would commonly face the children of temporary visa holders when they returned to their countries of origin at the end of their parents' temporary visas.
Ms Kim's counsel made various criticisms of the Tribunal's assessment of these hardships in Ms Kim's personal circumstances. However, I am not satisfied that the Tribunal failed to take any of her evidence into account. The criticisms were, in my opinion, no more than attacks on the merits of an assessment which was made within the Tribunal's jurisdiction.
In relation to the Tribunal's paragraph [34], the Tribunal addressed a possible hardship which was raised by the evidence and submissions of Ms Kim, when it considered the consequences of her having to withdraw from a course which she had recently commenced. In my opinion, this was a permissibly relevant consideration for the Tribunal, and it was invited by Ms Kim to consider it.
I accept that the Tribunal was obliged to consider the current situation, and to address considerations as at the date of its decision, not the delegate's decision. However, I do not accept that it was under any misapprehension about this. Its reference to the date of the delegate's decision was, in my opinion, intended only to suggest that any hardship from discontinuing the course was the result of Ms Kim taking a risk that she would not succeed in her appeal. I do not accept that this was legally irrelevant to a consideration of 'exceptional reasons'.
It was natural for the Tribunal to indicate separately its conclusions which addressed each of Ms Kim's circumstances which had been put forward by her and her agent as exceptional reasons for granting her a visa. I would not conclude from this that it failed to appreciate that 'exceptional reasons' might be provided by an accumulation of personal circumstances. However, where discrete matters had been put forward, and been individually assessed by the Tribunal as not being unusual or out of the ordinary, it is difficult to see how Ms Kim's case for establishing 'exceptional reasons' took greater impact or significance from a cumulative approach to her circumstances.
In this situation, I do not regard the absence of any express discussion of Ms Kim's 'cumulative' circumstances, as necessarily showing that it did not consider her situation from its fullest perspective. I am not persuaded that it did not take into account all of the matters which had been put forward by Ms Kim as her 'exceptional reasons'.
In the course of submissions with both counsel, I explored the difficulty of discerning from the Tribunal's reasons the circumstances which it might have accepted as providing 'exceptional reasons' for granting a visa under criterion 573.227. It appears to me that the Tribunal approached Ms Kim's evidence and submissions in a largely reactive manner, to decide whether any of it persuaded it to find reasons for lifting the ban arising from her assessment level and current visa class. If the criterion were construed to require a more focused approach to relevant considerations, then I would have been in doubt whether the Tribunal properly applied the criterion.
However, as I have explained above, I do not consider that the criterion requires a particular focusing by a decision-maker, and it is understandable that the Tribunal adopted its present approach. It was, at least, bound to give careful consideration to the case which was put forward by Ms Kim. I am not persuaded that it did not do this, nor that any other jurisdictional error affecting its decision has been established.
I must therefore dismiss the application. It is agreed that scale costs should follow the event.
[5]
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Smith FM
Parties
Applicant/Plaintiff:
Kim
Respondent/Defendant:
Minister for Immigration & Anor [2008] FMCA 1577
Legislation Cited (1)
Amendment Regulations 2001
Cases Cited (8)
(1999) 90 FCR 531
(2005) 146 FCR 275
(2004) 139 FCR 425
(1996) 185 CLR 259
(1987) 13 FCR 491
(1985) 60 ALR 225
(1991) 29 FCR 576
(2004) 144 FCR 1
36. With respect to her friends, the Tribunal does not accept that the impact of her moving to South Korea and not having face to face contact with friends is an exceptional reason to justify the grant of a visa. The Tribunal would expect that she would be able to maintain her friendships through letters, telephone, email and other computerised forms of communication. Further she would have the support and company of her parents who are living in South Korea.
37. The applicant claims she has a good educational history however the Tribunal does not consider that she has achieved a high academic outcome whilst in Australia. Despite completing 2 years of primary school and all her high school years in Australia she did not complete Yr 12 or gain her Higher School Certificate. She appears to have had a good attendance record during her college studies at ITTT and Meridian however she has only provided evidence of the grant of her School Certificate in 2005 and a Certificate III in Information Technology at ITTT in July 2006. The applicant's English skills were fairly poor at hearing which was surprising since she has spent all her high school years in Australia. She had difficulty understanding the Tribunal and had to constantly seek advice in Korean from her advisor.
38. The Tribunal accepts that the applicant's brother has obtained permanent residency but does not consider that this constitutes an exceptional reason for the grant of visa.
39. Accordingly, the Tribunal finds that the visa applicant does not meet clause 573.227 and the Tribunal is required to affirm the decision under review.