Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 | Case summary | Zoe

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Singh v Minister for Immigration and Border Protection

[2017] FCAFC 195

Federal Court of Australia (Full Court)|2017-11-29|Before: Perry JJ

At a glance

AI case summary

Result

respondent. Extension of time granted in respect of grounds 1 and 2; amended notice of appeal taken as filed; appeal dismissed with costs.

Key principles

An extension of time to appeal will be granted where the delay is short, there is an acceptable explanation, no prejudice to the respondent, and the proposed grounds have...
A failure to respond to a substantial, clearly articulated argument relying upon established facts may constitute jurisdictional error by reason of a denial of procedural...
Whether a submission raises a claim for waiver under PIC 4020(4) is determined by how the submission is properly understood in context; a reference to an Australian employer’s...
Even if reasons of a primary judge on judicial review are expressed with generality, there is no utility in remitting the matter where this Court can see that the underlying...

Issues before the court

Whether the primary judge’s ex tempore reasons were inadequate by failing to identify the findings supporting the conclusions at [15]-[18] of those...
Whether the Tribunal committed jurisdictional error by failing to consider, as a claim for waiver under PIC 4020(4), the asserted benefit to an...

Plain English Summary

A student from India submitted bank statements that the Department decided were fake. That finding triggered a three-year ban on any further visa applications. He told the Tribunal his uncle had impersonated his grandfather on the phone and that an Australian employer wanted to sponsor him because of his skills. The Tribunal said the documents were bogus and the family fight was not a good enough reason to waive the rule. The Federal Circuit Court agreed. On appeal the Full Court accepted the appeal was only a few days late and should be heard, but decided the Tribunal had not ignored any clear request to treat the employer’s interest as a ‘compelling circumstance’. The letter simply listed the employer as one more reason why the earlier family dispute should not ruin the appellant’s plans. Because the precise claim now argued had not been put to the Tribunal, there was no legal error. The appeal was dismissed and the visa refusal stands.

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Deep Dive

2,137 words · generated 24/04/2026

What happened

Davinder Singh, a 29-year-old Indian national, lodged an application for a Student (Temporary) (Class TU) visa on 30 May 2014. To satisfy the financial-capacity requirements in cl 572.224 of Schedule 2 to the Migration Regulations 1994 (Cth), he supplied three bank statements in the name of his maternal grandfather, Joginder Singh, said to be his sponsor. Departmental officers telephoned the account holder, who denied ever sponsoring anyone in the preceding five years and stated he had never heard of Mr Singh. Further checks revealed internal inconsistencies in the documents. On 23 September 2014 the Department invited comment. The appellant’s agent replied on 22 October 2014 asserting a family dispute; an affidavit from the appellant’s mother was attached stating that her father had withdrawn sponsorship “due to family dispute” and asking that “one chance for sponsor by any other family member” be given.

The delegate refused the visa on 28 November 2014 on the basis that the appellant had provided a bogus document, thereby failing PIC 4020(1) in Schedule 4. That criterion not only disentitles the applicant to the visa in question but imposes a three-year bar on any further visa applications. The criterion can, however, be waived under PIC 4020(4) if the Minister (or Tribunal on review) is satisfied that “compelling circumstances that affect the interests of Australia” or “compelling or compassionate circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen” exist.

On 11 December 2014 the appellant sought merits review. In written submissions dated 22 June 2016 he advanced, for the first time, the allegation that his uncle had impersonated the grandfather during the Department’s telephone call because the uncle believed he, not the appellant, was entitled to the grandfather’s money. The same submissions contained the paragraph later said to constitute a claim for waiver based on “exceptional skills” and an Australian employer’s willingness to sponsor him. The Tribunal conducted a hearing on 23 June 2016 at which the appellant appeared without an interpreter. It put the inconsistencies and the change in explanation to him, found the documents bogus and the new explanation implausible, and concluded that the family dispute and the desire to complete a one-year marketing course did not amount to compelling circumstances for waiver. The Tribunal affirmed the delegate’s decision.

The appellant, unrepresented, sought judicial review in the Federal Circuit Court. On 25 May 2017 that Court dismissed the application ex tempore; written reasons were not published until 28 June 2017. The primary judge treated the relevant ground as merely repeating merits complaints and noted that the Tribunal had in fact considered the appellant’s personal circumstances when dealing with waiver.

An appeal to the Full Federal Court was filed on 22 June 2017—seven days after the 21-day limit fixed by r 36.03 of the Federal Court Rules 2011 (Cth). The notice of appeal ultimately pressed two grounds: (1) inadequacy of the primary judge’s reasons; and (2) jurisdictional error by the Tribunal in failing to address a clearly articulated claim that the benefit to an Australian employer from the appellant’s “exceptional skills” constituted compelling circumstances for waiver. After hearing argument on both the extension application and the appeal itself, the Full Court (Perram, Farrell and Perry JJ) granted the extension in respect of those two grounds, accepted the amended notice of appeal as filed, but dismissed the appeal with costs.

Why the court decided this way

The Full Court’s reasoning on the extension application followed the orthodox Hunter Valley Developments checklist while emphasising that the “best interests of justice” remained the ultimate touchstone. The delay was only seven days, the Minister conceded no prejudice, and the appellant’s explanation—that he had been waiting for written reasons—was accepted as reasonable, especially given the Court’s own observation that publishing written reasons weeks after ex tempore delivery is “an undesirable state of affairs”. Critically, the proposed grounds were not hopeless on their face. Ground 1 raised a live issue about the adequacy of ex tempore reasons; ground 2 turned on a question of construction of the appellant’s Tribunal submission that could not be dismissed as unarguable at the impressionistic level required on an extension application. Hence the extension was granted.

On the substantive appeal the Court began with the legal principles drawn from Dranichnikov and NABE. Both authorities establish that a decision-maker commits jurisdictional error if it fails to address a “substantial, clearly articulated argument relying upon established facts” or misconstrues such a claim. The Court then turned to the 22 June 2016 submission. It noted that the request to “remove the 4020 condition” was expressly conditioned on “these exceptional circumstances that I have mentioned before you”. Grammatically and logically that phrase referred back to the uncle’s alleged impersonation and the migration agent’s miscommunication. The sentence about the employer was placed in a separate paragraph that followed the waiver request and appeared to explain the practical consequence of the three-year bar rather than to advance an independent compelling circumstance. The Court therefore held that the Tribunal had not misunderstood or overlooked the claim actually made; it had addressed the family-dispute narrative and had found it insufficient. Because the precise integer now relied upon—benefit to an Australian employer from “exceptional skills” as itself a compelling circumstance affecting an Australian citizen or resident—had never been clearly articulated, no jurisdictional error arose.

The Court also disposed of ground 1 on utility grounds. Even assuming the primary judge’s reasons were inadequately specific, the Full Court had before it the complete Tribunal record and could see that the judicial review application had been correctly dismissed. Remittal would therefore serve no purpose.

Two further doctrinal points are implicit. First, the Court reiterated that PIC 4020 is not concerned with the ultimate truth of the applicant’s financial position but with the integrity of the documents and information supplied. Provision of an alternative sponsor cannot “cure” an earlier bogus document. Second, the waiver power in PIC 4020(4) is narrowly confined; mere hardship to the applicant or the fact that he has nearly completed his studies does not, without more, engage the criterion.

Before and after state of the law

Prior to Singh the leading authority on PIC 4020 was Aurora v Minister for Immigration and Border Protection (2016) 238 FCR 153, which had explained the statutory scheme, the breadth of the “bogus document” definition, and the limited nature of the waiver discretion. Singh does not alter Aurora; it applies it. The decision also sits within the settled jurisprudence on constructive failure to exercise jurisdiction (Dranichnikov, NABE) and adds no new principle there. Its incremental contribution is the insistence on a contextual reading of an applicant’s submission before concluding that a particular integer has been “clearly articulated”. In that sense it reinforces the caution expressed in NABE that the Tribunal is not required to hunt for claims that are not squarely raised.

Post-Singh, the case has been cited for the proposition that a waiver submission must be read as a whole and that a reference to an employer’s interest will not automatically be taken as an argument about “compelling circumstances affecting the interests of an Australian citizen or permanent resident”. Later decisions have continued to emphasise that the three-year bar is a deliberate legislative consequence of a PIC 4020(1) finding and cannot be side-stepped by late assertions of alternative sponsorship. The obligation to publish timely written reasons, flagged in obiter, has been repeated in subsequent authorities dealing with ex tempore Federal Circuit Court judgments in the migration list, although systemic pressures mean the problem persists.

Key passages with plain-English translation

Paragraph [27] quotes NABE: “if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued the error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.”
Plain English: If the Tribunal gets the claim wrong or ignores a big, obvious argument the applicant actually made, that mistake can be so serious it amounts to a legal error that a court can fix.

Paragraph [30] contains the ratio on construction: “The request to ‘remove the 4020 condition’ is expressed to be ‘due to these exceptional circumstances that I have mentioned before you’ (emphasis added). As such, the submission was referring back to circumstances set out earlier in it, being the uncle’s alleged misconduct and the miscommunication with his migration agent, on the mistaken assumption that such matters could constitute compelling circumstances for the purposes of PIC 4020(4).”
Plain English: The appellant’s letter said “waive the rule because of the bad things I already told you about”. Those bad things were the family fight and the agent’s mistake. The bit about the boss wanting to hire him was added as an extra reason why the three-year ban would hurt, not as a brand-new argument that the boss’s need was itself a “compelling circumstance”.

Paragraph [26] states: “Written reasons should be published shortly after the giving of ex tempore reasons and well within the appeal period.”
Plain English: If a judge gives an oral decision, the written version should follow quickly so that the losing party can decide whether to appeal while the time limit still runs.

What fact patterns trigger this precedent

Singh is triggered whenever an applicant who has been found to have supplied a bogus document or false information seeks to argue on judicial review that the Tribunal overlooked a waiver claim based on benefit to an Australian employer or citizen. The precedent will defeat the argument if, on a fair reading of the whole submission, the employer reference is tethered to earlier-described “exceptional circumstances” (family pressure, agent error, personal hardship) rather than advanced as an independent integer capable of satisfying PIC 4020(4)(b). It is also relevant wherever an extension of time is sought in migration appeals and the primary judge’s reasons are criticised as too brief; the Full Court will look to utility and will not remit if it can itself see that no jurisdictional error occurred. Fact patterns in which the Tribunal has expressly invited submissions on waiver and the applicant has declined to add anything further (as occurred at the hearing in this case) further weaken any later assertion that a particular claim was clearly articulated. Conversely, if an applicant uses express language such as “the benefit to my Australian employer from my skills is itself a compelling circumstance affecting an Australian citizen”, Singh would not preclude a finding that the claim was raised.

How later courts have treated it

Singh has been followed in subsequent Full Court and single-judge decisions as authority for the proposition that the Tribunal is only required to address the claim actually and clearly made, read in context. It has been cited approvingly for the construction exercise required when an applicant’s submission is said to contain an implicit waiver argument. No court has doubted the outcome; later judges have reiterated that PIC 4020 is concerned with the integrity of the application process, not with curing earlier falsehoods by later offers of sponsorship. The obiter on timely publication of reasons has been echoed in procedural directions given in the Federal Circuit and Family Court, although compliance remains uneven. Singh has not been distinguished on its core holding; it sits comfortably with the broader line of authority that an applicant cannot, on judicial review, re-characterise a merits submission as a jurisdictional-error argument by giving it a legal gloss it never possessed before the Tribunal.

Still-open questions

Several questions remain live after Singh. First, what degree of specificity is required before an employer-sponsorship assertion will be treated as an independent compelling circumstance? The Court did not lay down a bright-line test; future cases may test whether a separate heading or cross-reference is enough. Second, the interaction between PIC 4020(4)(a) (“compelling circumstances that affect the interests of Australia”) and PIC 4020(4)(b) (circumstances affecting an Australian citizen or resident) was not explored; Singh was argued only on the latter limb. Third, the Court left open whether the primary judge’s reasons were in fact inadequate, deciding the case on utility grounds. That leaves room for argument in future matters where remittal would have utility because the Court cannot itself resolve the jurisdictional-error question. Finally, the systemic issue of delayed written reasons in high-volume migration dockets continues; Singh’s call for earlier publication or use of r 36.03(b) deferral orders has not produced a uniform administrative response. Practitioners should therefore continue to seek explicit orders deferring appeal time where written reasons are not available at the time of oral delivery. These open questions ensure that Singh, while authoritative on its facts, has not closed off further refinement of the waiver and procedural-fairness jurisprudence in the migration jurisdiction.

Judgment (9 paragraphs)

[1]

The application for an extension of time be allowed with respect to grounds 1 and 2 of the draft amended notice of appeal.
The amended notice of appeal from the Federal Circuit Court annexed to the affidavit of the appellant sworn on 22 June 2017 is taken as filed.
The appeal be dismissed.
The appellant is to pay the costs of the first respondent as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

INTRODUCTION 1 The appellant seeks an extension of time within which to file an amended notice of appeal. Argument was heard on that application together with the appeal in the event that leave to appeal was granted. 2 In the Court below, the appellant sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant the appellant a Student (Temporary) (Class TU) visa (student visa). 3 The draft amended notice of appeal raises two grounds of appeal, ground 4 having been abandoned in written submissions before the hearing and ground 3, at the hearing. The remaining grounds can be summarised as follows: (1) the primary judge gave inadequate reasons for judgment and in particular did not identify the findings on which the conclusions at paragraphs [15] to [18] inclusive of his judgment were made (ground 1); (2) the primary judge erred in failing to hold that the Tribunal fell into jurisdictional error in failing to address the appellant's submission that Public Interest Criterion (PIC) 4020 in Schedule 4 to the Migration Regulations 1994 (Cth) (the Regulations) should be waived because, if he was granted a visa, his Australian employer would sponsor him and benefit from his "exceptional skills" (ground 2). 4 Ground 2 is characterised by the appellant as either a failure to consider a relevant consideration or a denial of procedural fairness. 5 For the reasons set out below, an extension of time should be granted with respect to grounds 1 and 2 of the amended notice of appeal. However, the appeal should be dismissed.

[3]

2.1 The Delegate's decision 6 The appellant is a 29-year-old citizen of India. He applied for a student visa on 30 May 2014. On 28 June 2014 he provided documents addressing the financial capacity criteria for the grant of a student visa, including three bank documents in the name of Mr Joginder Singh who was said to be his maternal grandfather and financial sponsor. 7 By a letter dated 23 September 2014, the Department invited the appellant to comment on information raising questions as to the genuineness of the bank documents, namely: (1) when telephoned by the Department, the owner of the bank account had denied sponsoring anyone in the last five years and said that he did not know anyone by the appellant's name; and (2) two inconsistencies were identified following further checks. 8 The appellant responded through his representative by email on 22 October 2014, stating relevantly that: Due to a family dispute between the applicant's parents and other family members, his grandfather is now not willing to provide any financial support for his overseas studies. Please find attached an affidavit received for [sic] the applicant's parents explaining their situation. 9 An affidavit from the appellant's mother was attached in which she deposed that "due to family dispute my father has withdrawn sponsorship of my son" and requested "one chance for sponsor by any other family member may kindly be granted to my son". 10 The delegate refused to grant the student visa to the appellant on 28 November 2014, finding that the appellant did not satisfy cl 572.224 of Schedule 2 to the Regulations which required the appellant to satisfy, relevantly, PIC 4020. PIC 4020(1) in turn relevantly required that there be no evidence that the appellant had provided a "bogus document" (as defined in s 5(1) of the Act) or information that was false or misleading in a material particular in relation to the application for the visa. PIC 4020 also prevents a person who has been refused a visa on this basis from applying for any form of visa for a period of three years and therefore has consequences beyond the particular visa application. However, the requirement in PIC 4020(1) can be waived in certain circumstances under PIC 4020(4). PIC 4020 and the scheme giving effect to it were explained in detail by this Court in Aurora v Minister for Immigration and Border Protection [2016] FCAFC 35; (2016) 238 FCR 153.

[4]

2.2 The Tribunal's decision 11 The appellant applied to the Tribunal for review of the delegate's decision on 11 December 2014. In his written submissions dated 22 June 2016 to the Tribunal, the appellant raised for the first time a claim that his uncle had impersonated his grandfather on the telephone call from the Department and had lied about not knowing the appellant. The appellant submitted that his uncle had done this because his uncle did not approve of the appellant's grandfather's money going to the appellant as the uncle believed that he was entitled to that money. 12 On 23 June 2016 the appellant appeared before the Tribunal to give evidence and present arguments. He stated that he did not require the assistance of an interpreter and the hearing was conducted in English. On the same day, the Tribunal affirmed the delegate's decision not to grant the appellant a student visa. 13 The Tribunal put the inconsistencies referred to in the Department's letter of 23 September 2014 to the appellant and questioned him on why the explanation given to the Tribunal about his uncle's misconduct had not been raised earlier. Further, while the appellant responded that there was a miscommunication with his agent who did not submit the financial documents from an alternative sponsor in time, the Tribunal drew to his attention that "the issue in his case was the provision of a bogus document or information that was false or misleading in a material particular and this could not be overcome by provision of documents from an alternative sponsor" (Tribunal reasons at [13]). 14 The Tribunal discussed with the appellant the inconsistency between the explanation he gave to the Department as to how his problems came about, namely, that his grandfather had withdrawn his sponsorship, and the explanation he gave to the Tribunal. The Tribunal found that if the latter were true, it was implausible that neither the appellant nor his mother had mentioned it before to the Department. The Tribunal was also not persuaded by the appellant's response to the Department (at [14]). The Tribunal concluded that the appellant had given or caused to be given to the Department a bogus document and information that was misleading in a material particular in respect of his visa application (at [15]). Accordingly the Tribunal found that he did not meet PIC 4020(1) (at [16]). 15 The Tribunal then considered whether the requirements of PIC 4020(1) should be waived, and referred in this context to the appellant's evidence as follows: 18. In his submission the applicant asked that 'the selfish and unjust actions of others' not be allowed to 'jeopardise his life' and he be given the opportunity to complete the final leg of his studies before returning to his country to use all his skills to make something of himself. 19. After explaining the waiver provisions to the applicant at the Tribunal hearing the Tribunal asked him whether he wished to put forward any submissions regarding the provisions. The applicant responded that he did not but said he wanted to complete a one-year Marketing course, which he had not yet started. 16 The Tribunal concluded that it was not satisfied that the appellant's circumstances constituted compelling circumstances within PIC 4020(4) and therefore that the requirements of PIC 4020(1) should be waived (Tribunal reasons at [20]).

[5]

2.3 The decision of the Federal Circuit Court 17 The appellant was unrepresented in the Court below. On 25 May 2017, the Federal Circuit Court dismissed the application for judicial review with costs, giving ex tempore (oral) reasons for decision. Written reasons were published on 28 June 2017. 18 Relevantly, ground 4 of the application for judicial review is said to encompass ground 2 of the notice of appeal. The primary judge considered ground 4 together with grounds 1 to 3. The primary judge rejected those grounds on the basis that they repeated the appellant's evidence before the Tribunal on the question of whether his financial documentation was bogus and as such took issue impermissibly with the merits of the Tribunal's decision (reasons below at [15]). Ground 4 also asserted at a high degree of generality that the Tribunal "did not take my circumstances into consideration and just refused my application." The primary judge held that this assertion was not in fact borne out by the Tribunal's approach, with the Tribunal's reasons revealing that it took into account the appellant's circumstances in determining whether or not the criterion should be waived (reasons below at [15]).

[6]

SHOULD LEAVE TO APPEAL BE GRANTED? 19 Leave to appeal is necessary because the application was filed outside the 21 day period within which to appeal stipulated by r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) (FCR) and no alternative date had been fixed for that purpose by the Court below, as envisaged by FCR r 36.03(b). 20 The principles relevant to the exercise of discretion to grant an extension of time for an appeal are well established and are underpinned by a consideration of where the best interests of justice lie. Those principles may be summarised as follows. (1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. (2) The length of the delay is a relevant factor. (3) The appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time. (4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time. (5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account. (See e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.) 21 As to the fifth of these matters, the proposed grounds should be considered on their face and examined at a "reasonably impressionistic level"; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38]). 22 In support of his application for an extension of time filed on 22 June 2017, the appellant relied upon his affidavit affirmed on the same date. The appellant sought an extension of time on the ground that he had not been provided with a copy of the "detailed judgment" at the time of filing his application for an extension of time and therefore could not draft "detailed and correct grounds of appeal". The reference to the "detailed judgment" is plainly a reference to written reasons for the decision. 23 In our view, it is fair and equitable to grant the extension of time within which to appeal. 24 First, as the first respondent accepts, the delay of seven days is short and the Minister cannot point to any prejudice. 25 Secondly and contrary to the Minister's submissions, it cannot be said that the remaining proposed grounds of appeal lack any reasonable prospects of success. As to ground 1, the primary judge's reasons are expressed with a high degree of generality, raising an issue as to their adequacy at law. Nor is ground 2 unarguable, but turns upon how the relevant submission made by the appellant to the Tribunal is properly to be understood. 26 Thirdly, while the appellant was present in court when the primary judge gave an ex tempore (oral) judgment, he has given a reasonable explanation for the delay. Nor did the Minister suggest otherwise. The late publication of the reasons meant that the appellant had no written statement of reasons on the basis of which to seek legal advice, or to assess, whether or not to institute an appeal and, if so, on what grounds, until after the expiry of the period within which he had a right to appeal. As the Court has elsewhere observed, that is, with respect, an undesirable state of affairs. Written reasons should be published shortly after the giving of ex tempore reasons and well within the appeal period. Where that may not occur, however, it should be borne in mind that FCR r 36.03(b) expressly envisages that the court appealed from may make orders deferring the commencement of the period within which an appeal may be instituted: see CTV15 v Minister for Immigration and Border Protection [2017] FCA 976 at [12]. It is also open, for example, to a Court to defer the date on which the final order as to costs is made until written reasons are published thereby achieving the same result.

[7]

4.1 Ground 2, notice of appeal 27 It was not in issue that a failure to comply with the requirements of procedural fairness is established where the decision-maker fails "to respond to a substantial, clearly articulated argument relying upon established facts": Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ). Similarly the Full Court held in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 that: … if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued the error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if the claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal… 28 Applying these principles, by ground 2 of the draft notice of appeal the appellant alleges that the Tribunal fell into jurisdictional error in failing to consider a submission raised by him as to why the requirements of PIC 4020(1) should be waived under PIC 4020(4). In support of this ground, the appellant relied upon his written submission to the Tribunal provided by email on 22 June 2016 in which he contended that: … due to the selfish actions of my uncle and the huge miscommunication with my migration agent [who allegedly failed to send documents about alternative funding to the Department in time], I have lost everything… I have persistently worked throughout all my courses and I have almost reached the end of my student journey. All I ask from immigration is that they do not let the selfish and unjust actions of others jeopardize my life. I pledge that I will always remain a great immigrant if I am given the opportunity to complete my final leg of studying before I return back to my country to use all my skills to make something of myself. If it is of no possibility for me to obtain this visa, I humbly request immigration to remove the 4020 condition on my visa due to these exceptional circumstances that I have mentioned before you. One of the employers is happy to sponsor me due to my exceptional skills but due to 4020, I am unable to lodge my visa application. I humbly submit that I am victim of the family emnity I would absolutely love to finish off my studies in Australia but if this is not possible I would like to at least have any negative information against me amended to the truth. (errors in the original; emphasis added) 29 The appellant submitted that in the second paragraph quoted above, he expressly asked the Tribunal to waive the requirements of PIC 4020(1) on the ground that the benefit which his Australian employer would take from his "exceptional skills" constituted compelling circumstances affecting an Australian citizen or permanent resident for the purposes of PIC 4020(4). Alternatively, the appellant submitted that this passage from his submissions to the Tribunal squarely raised that claim. 30 Notwithstanding the careful submissions by the appellant's counsel, ground 2 has not been established. It is premised upon a misunderstanding of the relevant passage of the appellant's written submission to the Tribunal. The request to "remove the 4020 condition" is expressed to be "due to these exceptional circumstances that I have mentioned before you" (emphasis added). As such, the submission was referring back to circumstances set out earlier in it, being the uncle's alleged misconduct and the miscommunication with his migration agent, on the mistaken assumption that such matters could constitute compelling circumstances for the purposes of PIC 4020(4). The reference to the employer being happy to sponsor the appellant is put in the context of the appellant appreciating that a failure to correct the finding that he has not complied with PIC 4020 (i.e. the request that he would like "at least… any negative information against me amended to the truth") will preclude him from lodging a visa application sponsored by his employer for three years. 31 It follows that, irrespective of whether ground 2 was fairly raised below and leave would be required to raise the ground, the ground cannot succeed.

[8]

4.2 Ground 1, notice of appeal 32 Given that ground 2 has not been established, it follows that the complaint that the primary judge failed to give adequate reasons in ground 1 of the appeal must be dismissed. This Court is fully appraised of the judicial review action with which the primary judge was seized. Even assuming that the primary judge's reasons are inadequate, it is apparent that the appellant's judicial review application was correctly dismissed. In that circumstance, there would be no utility in remitting the matter to the Federal Circuit Court.

[9]

CONCLUSION 33 For the reasons set out above, the application for an extension of time is allowed with respect to grounds 1 and 2 of the draft amended notice of appeal and the appeal is dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Perram, Farrell and Perry.