FEDERAL COURT OF AUSTRALIA

Lally v Minister for Immigration and Border Protection [2015] FCA 440

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant is a citizen of India. He entered Australia in 2012 holding a Dependent Graduate Skilled Sub-class 485 visa. On 12 March 2013 he applied for a Student (Temporary) (Class TU) visa. The application for the student visa was refused by a delegate of the Minister.

2    The application was rejected because one of the criteria for the grant of such a visa was that, as the holder of a Dependant Graduate Skilled Sub-Class 485 visa, it was necessary for the appellant to establish “exceptional reasons” for the grant of the student visa. The delegate considered that the appellant had failed to establish such reasons.

3    The appellant appealed to the Migration Review Tribunal (“the Tribunal”). The Tribunal conducted a hearing at which the appellant and his agent were present. They sought to persuade the Tribunal that exceptional reasons existed for the grant of the student visa. The Tribunal was not satisfied that exceptional reasons existed. It summarised its reasons as follows:

“24.    The matters raised by the applicant and his representative are not, in my view, exceptional reasons for the grant of a Subclass 572 visa, either singularly or cumulatively, which would justify the grant of the visa. My principal reason for coming to this conclusion, is that the applicant has chosen to undertake study in Australia on the premise that he would be granted a student visa. The visa was not granted to him and his argument subsequent to that refusal is that he may now be embarrassed or inconvenienced or incur expense or that he should just be given a chance to finish his study before going home all fall flat in light of the reality that he has undertaken a course of action in circumstances where he did not secure the correct visa to enable his stay in Australia to do what he seeks. In other words he is the author of his own misfortune. There is nothing exceptional about that.”

4    The Tribunal affirmed the decision under review.

5    The appellant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court. The grounds of the application were that:

“1.    S.477, Judicial review can be lodged within 35 days after tribunal review has been finalised

2.    I am not happy with tribunal decision, applying for judicial review for legitimate decision

3.    I do have exceptional circumstances beyond the application lodgement previously”

6    The trial judge examined the Tribunal’s reasons and could detect no jurisdictional error. He found that the application for review was without merit and dismissed it.

7    The appellant has now appealed to this Court on grounds which I have had great difficulty in understanding. The appellant appeared in person. When asked to elaborate on the basis on which he said that the Federal Circuit Court had erred in dealing with his application he said that all he wished to do was to complete his studies in Australia.

8    I sought to explain to the appellant that the Federal Circuit Court and this Court could only intervene if the Tribunal’s decision was affected by jurisdictional error. The appellant was unable to identify any such error.

9    Like the Federal Circuit Court I am unable to identify any jurisdictional error on the part of the Tribunal. The Tribunal’s approach was consistent with the decision of this Court in Kim v Minister for Immigration and Citizenship [2009] FCA 161 at [16] (Buchanan J). There has been no appellable error on the part of the Federal Circuit Court.

10    The appeal must be dismissed with costs.

Associate:

Dated:    11 May 2015