Shashidhar v Minister for Immigration and Border Protection

The factual and procedural Background 7 The applicant is a citizen of India. He arrived in Australia on 24 February 2015 on a Tourist Subclass 600 visa which was due to expire on 24 May 2015. On 19 May 2015, while still in Australia, he applied for the student visa and stated that he intended to study a Diploma and an Advanced Diploma of Management. 8 On 21 May 2015 the delegate sent an email to the applicant's migration agent explaining that to be eligible for the grant of a first student visa, applied for within Australia, it was necessary to demonstrate the existence of exceptional reasons. On 29 June 2015 the delegate refused to grant the visa on the basis that the delegate was not satisfied that there were exceptional reasons that justified its grant.

The application to the Tribunal 9 On 16 July 2015 the applicant applied to review the delegate's decision to the Tribunal. On 3 December 2015 the Tribunal affirmed the decision. It stated (at [10]-[13]): Clause 572.227 requires an applicant applying in Australia while holding a subclass 600 visa to provide exceptional reasons for the grant of a student visa. As stated in the primary decision, to satisfy exceptional reasons is a relatively high threshold requirement and may include such things as an improvement in bilateral relations or significant economic benefit to Australia. Today you have told me you are keen to get another degree in Australia. You will make a financial contribution to Australia through your fees and living expenses and you were given incorrect advice as to the process you needed to follow by lawyers and migration agents when you first applied for a student visa. The Tribunal does not accept that your reasons could be classified as exceptional. In the circumstances, the Tribunal finds you have failed to provide evidence of exceptional reasons for the grant of a Subclass 572 visa and therefore you do not satisfy the requirements of cl.572.227.

The application to the Federal Circuit Court 10 On 6 January 2016 the applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. The application contained the following grounds (leaving the errors as they are): 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. 11 On 8 June 2016 the Court ordered that the application proceed as a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules). That rule relevantly provides that on the hearing of an application for an order to show cause, if the Court is not satisfied that the application raises an arguable case, the Court may summarily dismiss the application. 12 The show cause application came before the Court on 20 October 2016. The primary judge considered that the meaning of "exceptional reasons" in the Regulations was reasons that are unusual or out of the ordinary: see Kim v Minister for Immigration and Citizenship [2009] FCA 161 (Kim) at [5] (Buchanan J). His Honour said that the applicant's reasons for applying for the student visa that were recorded in the Tribunal's decision correctly encapsulated the applicant's case, and in his Honour's view they did not amount to exceptional reasons within the meaning of the Regulations. His Honour was not satisfied that the applicant had raised an arguable case for the relief claimed and held that there was no jurisdictional error in the Tribunal's decision. The application for judicial review was dismissed. 13 Rule 44.12(2) of the FCC Rules provides that a dismissal pursuant to that rule is interlocutory. Leave is therefore required to file an appeal in this Court: s 24(1A), Federal Court of Australia Act 1976 (Cth). The applicant now seeks leave to appeal to this Court from the judgment of the Federal Circuit Court.

The application to this Court 14 The application for leave to appeal to this Court is discursive and apparently prepared without the benefit of legal advice. Doing the best I can, and taking a generous view for the applicant, it contains the following proposed grounds of appeal (leaving the errors as they are): (a) Ground 4 which states: Further point, I raised that my father passed away in April 2016 and I could not attend to his funeral because of my Travel rights and my application in the federal circuit court for show cause hearing and to grant me visa on this basis if this reason is an exceptional cause and finally requested to grant my visa along with my arguments. (b) Ground 7 which states: My visa application has been refused on the basis as I wasn't satisfying the criterion of exceptional reason. I have tried myself to show the reason beyond my control to lodge the application for student onshore. (c) Ground 9 which states: And I have appeared for Pearson test English (PTE), and scored an overall average of 65 out of 90, which clearly indicates that I am a competent user of English and given my visa as requested, I can contribute both economically and financially to Australia in the coming future by developing my skills in communication. (d) Ground 10 which states: And finally I say I do have compelling reasons which may meet the exceptional reasons by obtaining to have a degree from Australian University. I am here by submitting my writing in statement and request you to grant my visa.

The test for a grant of leave to appeal 15 Generally, leave to appeal should not be granted unless the applicant satisfies two tests. First, that in all the circumstances the decision to be appealed from is attended with sufficient doubt to warrant its reconsideration on appeal. Second, whether substantial injustice would result if leave were refused, supposing the decision to be wrong. The sufficiency of the doubt in respect of the decision and the question of substantial injustice bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another: Décor Corp v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ). 16 Leave to appeal will be more readily granted where, although interlocutory in form, the practical effect of the judgment is to finally determine the rights of the parties: Minogue v Williams (2000) 60 ALD 366; [2000] FCA 125 at [19] (Ryan, Merkel and Goldberg JJ), citing the remarks of the High Court in Ex parte Bucknell (1936) 56 CLR 221; [1936] HCA 67 at 225-226 (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ) as follows: … There is one class of case which raises little difficulty. If the interlocutory order…has the practical effect of finally determining the rights of the parties, though it is interlocutory in form, a prima facie case exists for granting leave to appeal. For example, a judgment for either party on a demurrer might, in effect, be decisive of the whole litigation. Although such a judgment would often be interlocutory, it might be final in determining the issue between the parties, and, in such a case, leave would be granted almost as of course.

The meaning of "exceptional reasons" 17 The Act or Regulations do not define "exceptional reasons". The task of construing the meaning of those words involves the use of text, context and purpose to give the words the meaning that the legislature is taken to have intended them to have: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78] (McHugh, Gummow, Kirby and Hayne JJ). 18 Clause 572.227 is part of a legislative scheme to regulate, in the national interest, the entry into and presence in Australia of non-citizens, through the grant of visas: see s 4 of the Act. Through the requirement to establish exceptional reasons, cl 572.227 (as well as cl 572.211) imposes greater restrictions on the grant of an initial student visa when at the time of application the applicant is already in Australia on another visa, as compared to the position when the applicant is outside Australia at the time of application (as, for example, under cl 572.223). 19 The criteria in cl 572.223 (for student visa applications made outside Australia) may be described as the usual or ordinary criteria for deciding whether to grant a person from another country a visa to study in Australia. They include whether the applicant genuinely intends to stay temporarily, whether the applicant is enrolled in an eligible course, the applicant's proficiency in English, whether the applicant is a genuine student, and the applicant's financial capacity. The policy rationale for such criteria is plain. 20 Clause 572.227 is aimed at a broad range of persons who apply for an initial student visa when they are already in Australia on another visa. I say this because the effect of subs (c)(i)-(iv) is that persons who hold visas in the following classes or subclasses must meet the requirement to establish exceptional reasons: Border (Temporary), Cultural/Social (Temporary), Educational (Temporary), Electronic Travel Authority, Maritime Crew (Temporary), Medical Practitioner (Temporary), Retirement (Temporary), Superyacht Crew (Temporary), Temporary Business Entry, Subclass 400 (Temporary Work (Short Stay Activity)), Tourist, Visitor, Working Holiday (Temporary), Temporary Work (Long Stay Activity), Training and Research, Subclass 403 (Temporary Work (International Relations)), Temporary Work (Entertainment), Special Program (Temporary), Subclass 600 (Visitor), Subclass 303 (Emergency (Temporary Visa Applicant)), Subclass 427 (Domestic Worker (Temporary)-Executive), Subclass 485 (Temporary Graduate) and Subclass 497 (Graduate-Skilled), as well as persons who did not hold a visa in one of those subclasses at the time of the application but who had held such a visa immediately before ceasing to be a visa holder. 21 I was taken to nothing in the Act or Regulations to explain the underlying policy rationale for the requirement for exceptional reasons in cl 572.227, but I conclude from its terms and context that it is aimed at broadly restricting the availability of initial student visas for persons who apply for a student visa having entered Australia on another visa. Construed in the context of the usual or ordinary criteria for an initial student visa in cl 572.223, and understood having regard to the purpose of imposing greater restrictions when an application for such a visa is made by a visa holder who is already in Australia, I consider the expression "exceptional reasons" in cl 572.227 must mean reasons that are unusual or out of the ordinary. 22 This construction is consistent with authority. In Kim (at [5]) Buchanan J reached the same view in relation to the expression "exceptional reasons" in an analogous clause in the Regulations in force at that time. 23 The meaning of "exceptional" has been the subject of judicial consideration on numerous occasions. In Fay v Fay [1982] All ER 922 at 926 Lord Scarman said of the expression "exceptional hardship or depravity" in legislation dealing with matrimonial causes: It is not possible to define with any precision what is meant by "exceptional" hardship or depravity. The imprecision of these concepts with the resultant impossibility of definition must have been deliberately accepted as appropriate by the legislature and is itself an indication that the determination of what is exceptional is essentially a matter for the judge. All can be said with certainty is…that the hardship suffered by the applicant (or the respondent's depravity) must be shown to be something out of the ordinary. (Emphasis added.) To similar effect, in Re Washington [1967] QWN 10 Hart J said that "there must be an exceptional as opposed to an ordinary departure from accepted standards of behaviour." 24 In Baker v R (2004) 223 CLR 513; [2004] HCA 45 at [173] Callinan J referred with approval to the remarks of Lord Bingham in R v Kelly (Edward) [2000] QB 198 at 208 where his Lordship discussed the expression "exceptional circumstances" in the context of a decision not to impose a sentence of life imprisonment. His Lordship said: We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. (Emphasis added.) 25 In Hatcher v Cohn (2004) 139 FCR 425; [2004] FCA 1548 at [49] Kiefel J said of the expression "exceptional circumstances" in the Health Insurance Act 1973 (Cth): '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. Her Honour's approach was approved by the Full Court of this Court in Cohn v Hatcher (2005) 146 FCR 275; [2005] FCAFC 199 at [63] (per Lander J, with the approval of Black CJ and Wilcox J). 26 The applicant in the present case held a Subclass 600 visa (being one of the subclasses listed in cl 572.227(c)(i)-(iv)) and he applied for an initial Subclass 572 student visa while already in Australia. In my view he was required to satisfy the Minister that there were reasons for the grant of the visa that were unusual or out of the ordinary. 27 The Regulations do not prescribe any limitation on what may constitute "exceptional reasons" and it is open to the decision-maker to take into account a broad array of circumstances, which will include a comparison with the common, usual or ordinary reasons for which a person might apply for a student visa. It is inherent in such a broad discretion that the decision-maker must identify and weigh the factors which should be considered. 28 The applicant gave the Tribunal the following reasons for his visa application, namely that he: (a) was keen to get another degree in Australia; (b) could make a financial contribution to Australia through the fees and living expenses he paid; and (c) had been given incorrect advice by lawyers and migration agents as to the process he needed to follow when he initially applied for a student visa. 29 The Tribunal gave specific consideration to those reasons and it did not accept that they constituted "exceptional reasons". In my view that conclusion was unremarkable, but that is not the point. Reasonable minds may differ as to whether or not exceptional reasons exist, and that assessment was a matter for the Tribunal's judgment. It was not the task of the Federal Circuit Court (nor the task of this Court) to engage in a review of the merits of the Tribunal's assessment and to substitute its assessment for that of the Tribunal. The task of the Federal Circuit Court was to decide whether the Tribunal fell into jurisdictional error. The task of this Court is to decide whether: (a) the primary judge's decision in that regard is attended with sufficient doubt to warrant a grant of leave to appeal; and (b) assuming the primary judge's decision to be wrong, substantial injustice will result from a refusal to grant leave. 30 To succeed before the Federal Circuit Court the applicant was required to identify the alleged error by the Tribunal, for example by misconstruction or misapplication of cl 572.227, or by identification of some other error where the significance, materiality or gravity of the error rose to the height of jurisdictional error. He did not do so. 31 In my view the application for leave to appeal and the draft notice of appeal do not identify any jurisdictional error in the Tribunal's conclusion, nor any appealable error in the primary judge's reasons. 32 I extracted the proposed grounds of appeal at [14] above. Under ground four, the applicant alleges that his inability to attend his father's funeral provided a basis for the Tribunal to find that exceptional reasons exist. That cannot be so. The applicant's father's death occurred some months after the Tribunal decision was made and was not a matter relevant to the Tribunal's decision or the judgment below. 33 Under ground seven, the applicant alleges that he was given incorrect advice that he could lodge his application for a student visa while in Australia. That may or may not be so, but, even if it is accepted, it was open to the Tribunal to decide that it was not unusual or out of the ordinary for incorrect advice to be given or received. 34 Under ground nine, the applicant alleges that he is proficient in the English language and can contribute economically and financially to Australia. That may be accepted but it was open to the Tribunal to see those matters as not unusual or out of the ordinary, especially when cl 572.223 required all applicants for a student visa to establish proficiency in English and financial capacity. 35 Under ground ten, the applicant alleges that his desire to obtain a degree from an Australian University constitutes an exceptional reason. It can hardly be said that a desire to obtain a further qualification is unusual or out of the ordinary when cl 572.223 requires that the Minister be satisfied that persons who are granted student visas are genuine students. All applicants for such a visa are seeking a further qualification. 36 In written submissions the applicant sought to further argue that exceptional reasons exist because the grant of a visa will contribute to improved bilateral relations between Australia and India and provide significant economic benefit to Australia by contributing his skills and knowledge. That submission was apparently made in an attempt to address a policy statement in the Department of Immigration and Border Protection's "Procedures Advice Manual 3" which states: Under policy, exceptional reasons require an applicant to establish that visa grant would improve bilateral relations or provide significant economic benefit to Australia. 37 The terms of the Procedures Advice Manual cannot operate to define the meaning of "exceptional reasons" in the Regulations, and I can see no proper basis for restricting the meaning as the manual provides. There is, however, no merit to the applicant's submission in this regard. There is nothing in the material to support the applicant's claim that such benefits will flow from granting him a student visa. In oral submissions it became clear that the applicant misunderstood bilateral relations as meaning relations between him and an Australian girlfriend or wife rather than relations between India and Australia as nations. Further, the applicant did not raise this ground of appeal in the Federal Circuit Court and I would not grant leave for the argument now to be raised for the first time. 38 I consider that the judgment below is not attended by sufficient doubt to warrant a grant of leave to appeal. Indeed, in my view the appeal has no realistic prospect of success. 39 Turning to the question of substantial injustice, the Minister concedes that if leave to appeal is refused the applicant will have no further legal recourse in relation to the adverse visa decision. I consider that the practical effect of the judgment of the Federal Circuit Court is that the applicant's rights will be finally determined. However, the sufficiency of doubt and the question of substantial injustice bear upon each other and leave to appeal should not be granted in circumstances where the proposed appeal would have no realistic prospect of success. In such circumstances there can be no "sufficient doubt" and no "substantial injustice". 40 I note also that the applicant has already had the benefit of a merits review before the Tribunal, and an application for judicial review before the Federal Circuit Court. The solicitor for the Minister concedes that there is no limitation or restriction on the applicant applying for a subclass 572 Student visa from outside Australia. In such circumstances, assuming the decision of the Federal Circuit Court to be wrong, I do not consider that the applicant will suffer a substantial injustice. 41 I have made orders to refuse leave to appeal and for the applicant to pay the first respondent's costs fixed at $1,756. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.