FEDERAL COURT OF AUSTRALIA

Sharma v Minister for Immigration and Border Protection [2015] FCA 984

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants are to pay the first respondent’s costs fixed at $4,800.

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

REASONS FOR JUDGMENT

1    Before the Court is an appeal from orders made by the Federal Circuit Court on 7 May 2015 dismissing an application for review of a decision of the Migration Review Tribunal dated 11 February 2014. The Tribunal affirmed the decision of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellants Student (Temporary) (Class TU) visas.

2    Neha Sharma, the first appellant, referred to in these reasons as the appellant, is married to Vishal Trikha, the second appellant. On 11 October 2012, the appellant applied, through a migration agent, to the Department of Immigration and Citizenship (as it then was) for a student visa, and the second appellant applied for a secondary visa as her spouse. Appended to her application was a document entitled “Exceptional circumstances which compelled me to lodge this visa application in Australia without holding a student visa,” which stated:

I am in Australia currently living with my husband. I finished my M.Sc in August 2010. I intend to complete Diploma of Business in Australia and return to India and search for a reasonable employment. Getting my Australian Diploma would be of a great advantage to me. This would mean a bigger and better chance of getting a job with my Masters from India. Australian educational certificates also recognised all over the world. If not able to find a suitable job, I would be able to set up my own business for which my Diploma of Business would be an added advantage.

Moreover, while I do this course, I can live with my husband in Australia. We got married very recently and we do not intend to live apart at this moment of time. If I have to return to India to lodge my student visa application, my in-laws will not allow me to return to Australia to study or to live with my husband for several years. I am ashamed to state that in our culture, I am supposed to look after my parents-in-law and obey what they decide and my husband will not be able to help me in this regard.

In view of the above, I request you to kindly grant me the visa applied for, so that I would be able to live with my husband and complete my studies.

3    On 23 October 2012, the delegate of the Minister notified the appellant, by email to her migration agent, of the refusal of her application for a student visa for the reason that she did not satisfy cl. 572.227(c)(iv) in Schedule 2 of the Migration Regulations 1994 (Cth) which required that “the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.”

4    In refusing her application, the delegate referred to the appellant’s claimed reasons and said:

Under policy, exceptional reasons for the grant of a Student visa onshore may include an improvement in bilateral relations, significant economic benefit to Australia, that the applicant is the dependant of a departing temporary resident, or that the applicant is a former Student visa holder. Circumstances of this nature envisage significant benefit to Australia, or that the applicant has previously been studying in Australia for a period of time as given above.

I accept that Ms Sharma would like to obtain a degree in Australia and defer returning to India, however the circumstances that she has provided are not exceptional in nature, nor are they of the kind envisaged by policy which guides my decision.

As such, I am not satisfied that the reasons provided by Ms Sharma are exceptional and therefore she does not meet clause 572.227.

5    On 7 November 2012, the appellant applied to the Tribunal for review of the delegate’s decision. The appellant appeared before the Tribunal on 15 February 2013 and was represented by a migration agent. On 22 February 2013 the Tribunal affirmed the delegate’s decision not to grant the student visa on the basis that the requirements of clause 572.227 were not met.

6    On 11 July 2013, after an application was made to the Federal Circuit Court for judicial review of the 22 February 2013 decision, orders were made by consent remitting the application to the Tribunal for reconsideration. A Tribunal hearing was scheduled for 6 November 2013. On the day of the scheduled hearing, the appellant, through her migration agent, requested postponement of the hearing due to ill health. The request was granted and a new hearing was scheduled for 20 November 2013. On the day of the new hearing, the Tribunal received correspondence from the appellant’s migration agent stating that neither the appellant nor her migration agent would be attending the hearing and that the Tribunal should make a decision on the submitted documents. Consequently, the Tribunal proceeded to make a decision in the absence of the appellant.

7    The decision of the Tribunal, made on 11 February 2014, set out the nature of the claim and the evidence before it. The Tribunal then summarised the arguments of the appellant which it gleaned from the material provided to it, at [16] as follows:

•    The applicant has a good academic record and has completed a Bachelor of Economics and Master of Mathematics in India. She originally intended to do a Master of Economics in Australia as this would complement her previous studies but did not feel confident to study at this level in Australia so she enrolled in a Diploma of Business.

•    An Australian qualification would be an advantage in India either in getting a good job or in setting up her own business.

•    She applied for the student visa onshore rather than returning to India essentially because she was in Australia and also if she returns to India her parents in law would not allow her to return to Australia for further study as it is her duty to look after them. Her husband would not be able to help her to persuade them to allow her to come to Australia to study.

•    The applicant has provided a letter from the Virosh Perera CEO of Serendib News Network offering her a full time position as a marketing specialist conditional upon her having full work rights in Australia. He states that the applicant is currently a volunteer with the organisation for the Sri Lankan community newspaper. Serendib News is a free circulation publication in Australia and has a print run of 20,000 and the online presence is worldwide. They are hoping to launch a New India Newspaper in early 2014.

•    The applicant has also provided a letter offering employment with the sales team at Johnson Motors Honda in Phagwara. She has also provided an affidavit by Mr Ishan Sharma, Manager of Johnson Motors Honda who declares that the company is willing to pay her study and living expenses including health and travel in Australia and are offering a position as a marketing specialist once she has completed her study.

8    The Tribunal then considered the statutory requirements and the meaning of “exceptional reasons” and said at [19]:

In considering whether ‘exceptional reasons’ has been established, these are not intended to be found by deciding whether the applicant has the ‘normal’ characteristics of an applicant who is not subject to the restriction in the criterion, nor by deciding whether she departs from the ‘normal’ characteristics of the group who is subject to the restriction. When determining whether ‘exceptional reasons’ have been established the Tribunal must assume that the applicant should not be granted the visa unless some reasons can be positively identified which justify the grant of the visa. Beyond such reasons being capable of being described as ‘exceptional’ in ordinary parlance there is no prescriptive definition of the term.

[Footnotes omitted.]

9    Next, the Tribunal referred to the Departmental guidelines which indicated, in a non-exhaustive way, some examples of situations that may amount to exceptional reasons. The Tribunal rightly indicated that the guidelines were not binding but might indicate relevant considerations which the Tribunal should take into account. Then, between [24] and [32], the Tribunal discussed each of the arguments raised by the appellant as follows:

24.    The Tribunal accepts that the applicant has not breached any regulations or conditions of her visa in Australia or elsewhere. The Tribunal also accepts that the applicant misinterpreted cl. 572.227 at the time of her application for the student visa as she understood that the holders of 485 and 489 visas could apply for a student visa onshore. The applicant has also submitted that it looked better to her to apply for a student visa while she was in Australia. The Tribunal can appreciate the applicant’s reasoning in making an application while in Australia, as it may have seemed to be expeditious at the time. However, the Migration Regulations require an applicant to meet certain criteria which is the subject of this review and importantly, the applicant must establish exceptional reasons for the grant of a student visa while onshore.

25.    In relation to the applicant’s claim that her academic record is good, without further explanation or argument as to how her undergraduate degree in economics and her post graduate qualification in mathematics would be an exceptional reason for the grant of the visa, the Tribunal was not persuaded by this argument.

26.    The applicant has also submitted that originally she intended to do a Master of Economics but was not confident enough to study at this level in Australia so she enrolled in a Diploma of Business. She has submitted that this diploma would be an advantage in getting a job or starting her own business. At the present time, the applicant is enrolled in a Diploma of Marketing having discontinued the Diploma of Business after the decision to affirm the decision in her original application for review. The applicant’s focus appears to now be on getting a job in marketing rather than finding a job in the business sector or starting her own business. The Tribunal considers that wishing to study marketing or business does not amount to exceptional reasons for the grant of a visa.

27.    She has also argued that Australian qualifications are recognised all over the world and that these are desirable. The argument presented by the applicant that it is desirable to obtain an Australian qualification and could lead to better prospects for her is not in the Tribunal’s view an exceptional reason for the grant of the visa.

28.    The applicant has also submitted that if she were to gain employment with an Australian organisation, Australian citizens would get significant benefit as employers would be eager for her skills. The applicant has not provided details about this issue as to what her particular skills are and how these would be of benefit to a potential employer or to Australian citizens. It was not made clear from her submission the extent of her skills, qualifications or experience, apart from her Economics degree and Master of Mathematics, and whether her skills have been identified as being unique or in short supply in the Australian workforce. The Tribunal considered this was not an exceptional reason for the grant of the visa.

29.    The Tribunal has noted that the applicant has achieved a Bachelor’s degree and a Masters in Mathematics in India. The applicant’s reasoning in relation to wanting to do a diploma level course in Australia was that this qualification was desirable and would help her in the future in India. The Tribunal was not persuaded by this argument as the applicant has provided no evidence to show that such a course is not available in India. The Tribunal finds that this is not an exceptional reason for the grant of the visa.

30.    The Tribunal considered the applicant’s concern that she will not be allowed to apply for a student visa and travel to Australia once she returns to India because of her parents in law was not persuasive. She had already travelled to Australia with her husband while he held a 485 (Skilled – Graduate) visa. In light of this the Tribunal does not accept that she cannot do so again if she wished. The applicant was also concerned that she and her husband do not intend to live apart. The Tribunal was unclear as to what she meant by this. The applicant’s husband is included in this application. In the event that she was granted a student visa, her husband would presumably remain with her, if she were to return to India, it follows that he would also return with her. The Tribunal finds that this is not an exceptional reason for the grant of the visa.

31.     The Tribunal also considered the evidence provided of a job offer in Australia for the Serendib News. This was a full time position and as the holder of a student visa, a condition on that visa is that the applicant is precluded from working on a full time basis. The Tribunal finds that this is not an exceptional reason for the grant of the visa.

32. In relation to the job offer with Johnson Motors Honda in India, the applicant provided information about a position as a marketing specialist and the potential employer’s willingness to bear the costs of her education and stay in Australia. As noted earlier, the applicant holds a Bachelor of Economics from an Indian university but she does not provide any explanation as to why she cannot train and specialise in marketing in India in order to qualify for that position. She has stated that an Australian qualification is desirable but this argument was not persuasive in the Tribunal’s view in the absence of evidence that such a course is not available in India. The Tribunal finds that this offer of employment, once she obtains a marketing qualification is not in itself an exceptional reason for the grant of the visa.

10    The Tribunal concluded that the reasons presented by the appellant, either individually or cumulatively, did not satisfy the Tribunal that the reasons were “exceptional” in the ordinary meaning of the word. Accordingly, the Tribunal found that the appellant did not satisfy the requirements of cl. 572.227, and affirmed the decision of the delegate not to grant the visas.

11    On 28 February 2014, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal decision. The grounds of the application were as follows:

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

4.    There are same cases which have got positive decision in High court, therefore I got hope that I could win the case I [sic] High Court

5.    Previously federal Circuit court has remitted my application back to Tribunal, then tribunal affirms not to grant visa. This pushes me in to dilemma whether I could get the grant or not.

12    The appellant appeared at the hearing in person on 13 February 2015. On 7 May 2015, the Federal Circuit Court published its reasons. The Federal Circuit Court stated the grounds of the application then referred to material filed by the appellant in support of the application. At [4], the Federal Circuit Court referred to an affidavit of the appellant sworn on 23 December 2014, which annexed a letter from the appellant stating that the reason for non-attendance at the Tribunal was that the agent misinterpreted her instructions by informing the Tribunal that she did not intend to attend the hearing. She said that she was unable to attend the hearing because of a medical condition beyond her control and she attached a medical report. The Federal Circuit Court set out some further grounds which the appellant sought to argue in support of the existence of exceptional reasons, namely: that the appellant wishes to continue to study in Australia, that the appellant has done some volunteer work in Australia, that she has received a job offer in Australia, and that she has been working and paying tax, thereby benefitting Australia. The Federal Circuit Court then set out the history of the application and a summary of the hearing before the Tribunal.

13    Under the heading “Consideration” the Federal Circuit Court first observed that the form of the application did not set out any proper ground of judicial review and stated that: “In reality, the Applicant seeks merits review which is not a function of the Court.” The Federal Circuit Court then found that a fair reading of the Tribunal’s decision did not indicate that the decision was affected by jurisdictional error. The factual findings of the Tribunal were open to it on the evidence before it and procedural fairness was afforded to the appellants.

14    The Federal Circuit Court considered the way in which the Tribunal hearing was conducted and, in particular, the question of whether there was any error in the Tribunal proceeding with its review without taking further steps to invite the appellants to appear before it. It was noted that the medical certificate submitted by the appellant was dated 12 months after the alleged illness and that it appeared to have been based on the appellant’s own report to her doctor. It was observed that there was no contemporaneous evidence of either the appellants’ health on 20 November 2013 or her assertion that her authorised recipient misinterpreted her position as to attendance before the Tribunal. The Federal Circuit Court then addressed the position assuming there was a misinterpretation and decided that that would not give rise to a breach of procedural fairness or other jurisdictional error. The Federal Circuit Court said at [31]:

The Applicant herself took no steps to contact the Tribunal to correct or confirm her position, or to follow up on her application for review between 20 November 2013 hearing and 11 February 2014 when the decision was made. The Tribunal was entitled to proceed on the basis of the authorised recipient's information as contained in the email to it of 20 November 2013. There is no error or fraud on the Tribunal such as to vitiate its procedures.

15    The Federal Circuit Court observed that the Tribunal’s decision turned on whether the applicant had established exceptional reasons for the grant of the Subclass 572 visa and whether the Tribunal had properly instructed itself as to the meaning of the term “exceptional reasons,” taking into account the non-binding departmental guidelines. The Federal Circuit Court concluded that the Tribunal determined those matters of fact it was required to determine and that the conclusions of fact were open on the evidence before it. There was, in the view of the Federal Circuit Court, no error of law in the approach adopted by the Tribunal.

16    On 15 May 2015, the appellants filed a notice of appeal in this Court. The ground of the appeal was as follows:

I am not satisfy with the decision because I am thinking they have to give me to chance to verify my points properly.

17    The appellant appeared in person at the hearing of the appeal. The distinction between jurisdictional error and a challenge to findings of fact was explained to the appellant and she was asked to address the Court on the ground of the appeal. Reflecting a theme evident throughout the proceedings, the appellant cast blame on her migration agent for the circumstances which have arisen. In effect, she sought to argue that an exceptional reason existed because her migration agent told her that she was entitled to apply for a visa onshore when, in her circumstances, this was not the case. There was no independent evidence to support the appellant’s assertion. Even if there were, it would not reflect on the legal correctness of the decision of the Tribunal.

18    The judgment of the Federal Circuit Court is comprehensive and careful. It addressed not only the arguments actually raised by the appellant but, in relation to the requirements for procedural fairness, examined the history of the proceeding against the legal requirements and found that there had been no breach of the requirements. In particular, it examined the circumstances of the appellant’s failure to appear before the Tribunal and concluded correctly that the circumstances did not reflect any legal error in the approach taken by the Tribunal. The ground of the appeal is not a ground which asserts any relevant error in the judgment of the Federal Circuit Court or the decision of the Tribunal. An examination of the judgment of the Federal Circuit Court indicates that it was correct to reject the application for judicial review. For these reasons, the appeal must be dismissed.

Associate:

Dated:    4 September 2015