Federal Court of Australia

Hoang v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 695

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellants pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

HORAN J:

Introduction

1    The appellants, Ms Huyen Diem Ngoc Hoang and her husband Mr Harish Kumar, appeal from orders made by the Federal Circuit Court of Australia (as it was then called) on 4 December 2020, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal dated 30 March 2017.

2    The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant Student (Temporary) Vocational Education and Training Sector (Class TU) (subclass 572) visa (Subclass 572 student visa) to each of the appellants. The Tribunal found that the first appellant did not satisfy the requirements of cl 572.227 of Sch 2 to the Migration Regulations 1994 (Cth), which relevantly required her to establish “exceptional reasons” for the grant of a Subclass 572 student visa.

3    The primary judge concluded that the appellants had not established any jurisdictional error in the Tribunal’s finding. That conclusion was correct, and the appeal is therefore dismissed.

Background

4    The first appellant (who I will refer to in these reasons as “the appellant”) is a citizen of Vietnam who last arrived in Australia on 14 February 2015 as the holder of a three-month Tourist (subclass 600) visa. The appellant was subsequently granted a Graduate Work Stream (Class VC) (subclass 485) visa.

5    On 4 July 2015, the appellant married the second appellant, who is a citizen of India.

6    On 3 June 2016, the appellant made an application for a Subclass 572 student visa, with the second appellant included as a member of her family unit in the application. The appellant was assisted by a migration agent in making the visa application.

7    The appellant’s intended course of study was stated in the visa application as a Diploma of Project Management at the Central Melbourne Institute to be conducted between 15 June 2016 and 31 May 2017.

8    The appellant had previously studied in Australia between 2011 and 2014, during which she was enrolled in and completed a Certificate III in Frontline Management, a Diploma of Management and a Bachelor of Business (Accounting) at Cambridge International College.

9    Because the appellant held a Temporary Graduate visa at the time of application for the Subclass 572 student visa, cl 572.227 of Sch 2 to the Regulations required the applicant to establish “exceptional reasons” for the grant of the visa. Accordingly, on 21 June 2016, the Department of Immigration and Border Protection sent a letter to the appellant’s migration agent requesting additional information regarding her visa application. The letter attached a “request checklist” in which the appellant was asked to provide:

(a)    a statement explaining her exceptional reasons for the grant of an initial student visa while in Australia and any supporting evidence; and

(b)    evidence that she was currently enrolled, or would enrol, in a course of education or training by a provider registered to provide the course to overseas students, such as by providing a current and valid Certificate of Enrolment (COE).

10    In respect of the first request, the letter relevantly stated that, “[a]s you are an Assessment Level 3 applicant, you are not able to be granted a further student visa in Australia unless exceptional reasons exist for the grant of the visa”, and listed some examples of what exceptional reasons may include. In respect of the second request, the letter noted that the visa application had included an expired COE.

11    By an email dated 28 June 2016, the appellant’s migration agent responded to the request for information, stating:

Please find the letter from the doctor, stating baby is due and student applied for the deferment of the course, I shall send you the letter from the provider asap

The email attached a “Certificate of Confinement” dated 30 May 2016 issued by Monash Obstetrics stating that the appellant was attending the clinic for antenatal care with an estimated date of delivery of 12 August 2016. The appellant subsequently gave birth to her daughter on 13 August 2016.

12    On 30 June 2016, the appellant’s migration agent sent a further email to the Department attaching the appellant’s “active COE” in relation to her enrolment in a Diploma of Project Management with the Malvern Institute Pty Ltd (trading as Malvern International College, Central Melbourne Institute), with a start date of 15 June 2016 and an end date of 31 May 2017.

13    On 2 September 2016, a delegate of the Minister refused to grant a Subclass 572 student visa to each of the appellants. The delegate was not satisfied that the appellant had established exceptional reasons for the grant of the visa, and therefore cl 572.227(c)(iv)(B) of Sch 2 to the Regulations was not met.

14    The delegate noted that, at the time of the decision, no response had been received from the appellant addressing “the exceptional reasons for the grant of your first Student visa onshore”. Accordingly, the delegate was “not in a position to consider [the appellant’s] viewpoint regarding your circumstances”. After referring to policy guidance in relation to the requirement for exceptional reasons, the delegate continued:

In the absence of a response from you to address the exceptional reasons for the grant of your Student visa onshore in conjunction with the lack of any additional factors that may contribute to your current circumstances … I am not satisfied that your reasons to apply onshore are exceptional and therefore you do not meet clause 572.227.

15    On 16 September 2016, the appellants applied to the Tribunal for review of the delegate’s decision. The documents provided to the Tribunal in support of the review application included a “Statement of Purpose” in which the appellant explained “the main purpose for choosing the course Diploma of Project management as a next step of my future career”. The appellant referred to her accounting qualifications and her current job as “a junior accountant as well as office clerk”, and stated that her manager had suggested that she undertake “some course where I can learn the knowledge and skills to be able to handle the management work”. The appellant expressed her goal to start her own company when she returned to Vietnam “after getting experience from accounting field and project management”.

16    By an email dated 27 March 2017, in advance of the Tribunal hearing, the appellant’s migration agent forwarded to the Tribunal an “updated GTE statement from [the appellant]”, which was also headed “Statement of Purpose” and was written “in support of [the appellant’s] application to study Diploma in Project Management Practice”. The reference to “GTE” in this context may be understood as an abbreviation of “genuine temporary entrant”, which is in turn a shorthand reference to criteria for the grant of student visas requiring an intention genuinely to stay in Australia temporarily. In this statement, the appellant elaborated on her reasons for undertaking the Diploma of Project Management, including that she had been “mainly focusing on my upcoming career direction in Vietnam whilst also making inquiries about educational strategy”. The applicant said that “[p]roject management skills would give me an edge over other candidates in this competitive industry, where there is much demand for such people to lead a project team, contract officers, project administrators or quality officer”, and that “[t]o fit into these roles, I need to effectively and efficiently learn the Project management practices which could pave the way to scale higher position in my career”. The appellant explained why she wanted to study in Australia and at Malvern International College, and stated that her “long term objective and most important cause” for wanting to undertake the Diploma of Project Management was that she would “start to look for a job as a project leader or project Administrator in Vietnam where there is a great demand in Accounting market after completion of my course”.

17    The appellants attended a hearing before the Tribunal on 30 March 2017, at which they were assisted by their migration agent. At the conclusion of the hearing, the Tribunal made an oral decision to affirm the delegate’s decision and gave oral reasons. By an email sent later that afternoon, the appellant’s migration agent requested that the Tribunal provide a written statement of reasons for its decision.

18    On 3 April 2017, after the Tribunal had already given its oral decision on the review application, the appellant’s migration agent sought to provide a post-hearing written submission to the Tribunal. The migration agent stated that, because the Tribunal member had made an oral decision on the same day of the hearing, the appellants had not been given an opportunity to provide submissions after the hearing was conducted.

19    Noting that the post-hearing written submission was not before the Tribunal at the time of its decision, the nature and scope of that written submission can be briefly summarised. After stating that the appellant was “not comfortable at the proceedings”, and referring to the Tribunal member’s “manly behavior” with the appellant, the submission proceeded to set out the background to the application, before addressing the “exceptional reasons” requirement under cl 572.227. The submission referred to case law and administrative policy on the “exceptional reasons” requirement. Under the heading “Analysis”, the submission set out similar matters to those contained in the “Statement of Purpose” documents about the appellant’s reasons for undertaking the Diploma of Project Management, and listed a number of occupations relating to that qualification. The submission concluded that “[b]ased on above facts, [the appellant] meets the bilateral relationships, where both countries benefit out of the Project Management, as [the appellant] is very enthusiastic to start her job in multi national company in Vietnam from the course which [the appellant] had enrolled, Diploma in Project Management from MIVS, Melbourne”.

20    By letter dated 6 April 2017, in response to the email from the appellant’s migration agent, the Tribunal advised that an oral decision had been made by the Tribunal on 30 March 2017 and that the Tribunal had completed its review, meaning that the further written submission could not be taken into consideration. The letter stated that the appellant would be provided with a written record of the Tribunal’s reasons for decision.

21    By letter dated 13 April 2017, the Tribunal sent to the appellants a written decision record dated 4 April 2017 containing a statement of reasons for the decision made on 30 March 2017, in which the Tribunal relevantly found:

8.    To be eligible for the grant of a subclass 572 student visa when your application was made onshore, you must satisfy cl.572.227 which requires you in your circumstances to provide exceptional reasons for the grant of a student visa.

9.    As I said, while I think the wording of the primary decision is somewhat confusing, what is clear is that 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.

10.    Your reasons are those provided to the delegate and you have told me today you want to complete your diploma which will give you an advantage in the job market when you return to Vietnam. And your agent has said exceptional reasons are not defined. The situation is that you are a genuine student and asks why should you be disadvantaged? As I said to him it is not a question of whether you are disadvantaged, but a question of you needing to satisfy the requirements.

11.    The Tribunal does not believe you have provided any reasons that could be classified as exceptional and in the circumstances, the Tribunal finds you have failed to provide evidence of exceptional reasons for the grant of a Subclass 582 visa [sic] and therefore you do not satisfy the requirements of cl.582.227 [sic].

12.    It is therefore the decision of this Tribunal to affirm the decision under review.

22    As the primary judge noted below, the references in paragraph 11 of the Tribunal’s reasons to “Subclass 582 visa” and “cl 582.227”, when read in context, seem to have been “nothing more than a typographical error … that does not affect the Tribunal’s decision”. That is, the Tribunal may be taken to have intended to refer to Subclass 572 and cl 572.227 respectively. No issue has been taken on the appeal with the primary judge’s characterisation of this typographical error.

The application for judicial review

23    On 21 April 2017, the appellants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision under s 476 of the Migration Act 1958 (Cth). The application contained three grounds of review, in the following terms:

1.    AAT decision is not acceptable. AAT member didn’t consider my immigration history and bona fide study records in Australia. As per the GTE criteria, I fulfil the GTE terms and conditions. Decision is full of discrepancies.

2.     AAT decision was not taken in fairly manner. AAT should have accepted my evidence and submission of my adviser. Member didn’t bother to understand my situation and exceptional circumstances. If Member needed further evidence then they could have given me another hearing date. Unfortunately member gave me oral decision to affirm the decision.

3.    I am not happy with the decision of AAT. In decision AAT didn’t consider my bona fide intention to complete Diploma of Project Management at MIVS.

24    The application was heard before the primary judge on 19 November 2020. The appellant attended the hearing in person, and on behalf of the second appellant, without legal representation.

25    On 4 December 2020, the primary judge dismissed the application with costs: Hoang & Anor v Minister for Immigration & Anor [2020] FCCA 3302 (Reasons).

26    The primary judge considered and rejected each of the appellants’ three grounds of review as involving a misunderstanding of either the Tribunal’s decision or the Tribunal’s role: Reasons at [15]-[28].

(a)    The primary judge found that Ground 1 of the application was misguided, in that the Tribunal did not make any finding as to whether the appellant satisfied the “GTE criteria” (which, as noted above, were taken to mean the “genuine temporary entrant” criteria). Moreover, the primary judge rejected as “plainly incorrect” the claim that the Tribunal had failed to consider the appellant’s immigration history, which was recorded in the Tribunal’s reasons.

(b)    In respect of Ground 2, the primary judge found that the Tribunal was not under any obligation to accept the appellant’s evidence. It was not the role of the Court to entertain a review on the merits. The appellant was required to advance evidence and make submissions, including to establish that there were exceptional reasons as required by the Regulations. The primary judge rejected the “apparent complaint about fairness” which was “embedded” within Ground 2 and addressed in oral submissions made by the appellant to the primary judge. While the appellant submitted that she had not been allowed by the Tribunal to give an explanation of her case, she did not place before the Court any transcript or recording of the hearing before the Tribunal to support that submission. Further, the primary judge concluded that the Tribunal had considered the arguments advanced by the appellant during the Tribunal hearing, namely that her qualification would give her an advantage in the job market when she returned to Vietnam, and found that not to be an “exceptional reason” for granting the visa.

(c)    In so far as Ground 2 included a complaint that the Tribunal had failed to take into account the post-hearing submissions sent to the Tribunal, the primary judge considered that such any such complaint could not be sustained in circumstances where the Tribunal’s decision had already been made and it had no power to vary or revoke that decision.

(d)    The primary judge rejected Ground 3 on the basis that the Tribunal did not make any decision or finding in relation to the appellant’s intentions with respect to completing the Diploma of Project Management.

27    Accordingly, the primary judge held that the appellants had not established jurisdictional error affecting the Tribunal’s decision.

The notice of appeal

28    By a Notice of Appeal lodged on 23 December 2020, the appellants appeal from the primary judge’s decision.

29    The Notice of Appeal purports to raise three grounds of appeal. However, the grounds have been drafted in a confusing manner and are somewhat difficult to comprehend. Some portions of the grounds appear to have been “cut and paste” from the reasons for judgment of Murphy J in Shashidhar v Minister for Immigration and Border Protection [2017] FCA 253 at [15]-[16] and [27]-[28], including in relation to the principles governing applications for leave to appeal (which have no relevance to the appeal in the present case).

30    Recognising that the appellants are not legally represented, I have attempted to discern the substantive grounds sought to be raised by the appellants in the Notice of Appeal, together with their written and oral submissions.

31    Ground 1 of the Notice of Appeal begins with a paragraph that is derived from various sentences taken from paragraphs [25], [26] and [28] of the Reasons, but without identifying any error or criticism of the findings made in those paragraphs. This paragraph also asserts that the appellant “satisfied the GTE criteria (genuine temporary entrant criteria)”, which was a matter in respect of which neither the Tribunal nor the primary judge made any finding: see paragraph [24] of the Reasons.

32    Under this ground, the Notice of Appeal goes on to state: “The grounds upon which the Visa Applicant seeks to impugn the Tribunal’s decision relate to the application of the provisions & guidelines, it is necessary to say something about the relevant provisions.” The ground then reproduces a paragraph from Shashidhar at [15] in relation to the requirements for the grant of leave to appeal, adding the following sentence which appears to be directed to the facts of the present case:

Here the applicant is mother to a child and had a husband, the second applicant in this case is responsible family member & genuinely trying to gain skills for betterment of her carrier [sic] & job market in her home country.

33    Ground 2 of the Notice of Appeal reproduces a further paragraph from Shashidhar at [16], again in relation to the grant of leave to appeal, together with the following paragraph which repeats in a consolidated form the first two grounds of review raised before the primary judge below:

AAT member didn’t consider my immigration history and bona fide study records in Australia. As per the GTE criteria, I fulfil the GTE terms and conditions. Decision is full of discrepancies. AAT decision was not taken in fairly manner. AAT should have accepted my evidence and submission of my adviser. Member didn’t bother to understand my situation and exceptional circumstances. If Member needed further evidence, then they could have given me another hearing date. Unfortunately, member gave me oral decision to affirm the decision.

(Emphasis in original.)

34    Ground 3 of the Notice of Appeal reproduces another paragraph from Shashidhar at [27] dealing with the meaning of “exceptional reasons” and the broad discretion conferred by cl 572.227. The ground also partly reproduces Shashidhar at [28], which addressed the reasons given by the applicant in that case for his visa application, namely:

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 …

35    The ground also relevantly states:

An error by the Tribunal, by misconstruction or misapplication of cl 572.227 where the significance, materiality or gravity of the error rose to the height of jurisdictional error due exceptional family needs of the applicant & Second applicant in this case.

…

Here tribunal failed to look into genuine request for temporary student visa sought for the advancement of the education & carrier [sic] of a woman with the background social conditions of Socialist Republic of Vietnam, a country in Southeast Asia where per capita income is very low. Advanced Education gives the empowerment to the women in her persuit [sic] for better life in the Vietnamese society where Family solidarity and interdependence has traditionally been emphasized over independence and self-reliance. In Vietnam’s traditional society, a typical family has three or four generations living under the same roof. Solidarity and hierarchy are given great importance, in this regard higher education for women gives more confidence and secure the applicant human rights, in this background scenario the desire to obtain a diploma/degree from an Australian University constitutes an exceptional reason for the applicant. The applicant request for said Visa, Tribunal tried to see matters as not unusual or out of the ordinary, especially under cl 572.227 required all applicants for a student visa to establish to furnish genuine reasons to continue the higher education in Australia. This application for leave to appeal and the draft notice of appeal identifies the jurisdictional error in the Tribunal’s conclusion & appealable error in the primary judge’s reasons.

36    The balance of Ground 3 appears to be an unattributed quotation from Koulaxazov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 79 at [66]-[67] (Conti J), addressing the principles relating to jurisdictional error as articulated in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351-352 (albeit in the context of the statutory ground of judicial review contained in former s 476(1)(e) of the Migration Act).

37    In written submissions that were filed at the same time as the Notice of Appeal (with the heading “Leave to Appeal Submissions”), the appellant relevantly states that:

The grounds in the notice of appeal follow the language of the grounds in the application to the Federal Circuit Court. In substance, the grounds of appeal are that the Federal Circuit Court erred in so far as it did not conclude, on the grounds of the application still pressed, that there was jurisdictional error on the part of the Tribunal.

38    As the primary judge’s decision to dismiss the application for judicial review was final and not interlocutory, the appellants have a right to appeal, and the principles relating to the grant of leave to appeal from an interlocutory judgment are not relevant.

The hearing of the appeal

39    The appeal was listed for hearing before me on 13 March 2024 at 10.15 am. The second appellant appeared in person at the hearing and on behalf of both appellants, and the Minister was represented by its solicitors, Mill Oakley.

40    At the commencement of the hearing, the second appellant informed the Court that his wife was unwell and unable to attend the hearing. The second appellant requested an adjournment of the hearing, relying on an affidavit sworn or affirmed by him on 13 March 2024 which exhibited a medical certificate and a medical report in relation to a breast ultrasound that had been performed on the first appellant on or about 18 December 2023.

41    The adjournment request was opposed by the Minister.

42    I refused to adjourn the hearing for reasons that were given orally. In summary, the medical certificate did not provide evidence that the first appellant was unable to attend or participate in the hearing. While the second appellant claimed that his wife was suffering from stress as a result of her medical condition and ongoing treatment, there was no evidence or other material to support that claim nor to indicate whether or how it prevented the first appellant from attending or participating in the hearing. It was apparent that the second appellant had considerable familiarity with the facts and issues in the case, having attended the hearing before the Tribunal and as a party to the proceedings below and on appeal, and was able to make submissions on both his own and his wife’s behalf. Having regard to these matters, together with the late stage at which the adjournment request was made, I did not consider that it was appropriate or in the interests of justice to adjourn the hearing.

43    The second appellant proceeded to advance oral submissions in support of the appeal. He raised the following points.

(a)    The second appellant said that the situation in their case was brought about by confusion as a result of improper advice from their migration agent. The agent had persuaded the appellant to study a Diploma course rather than a Master’s degree. The appellant was pregnant with their first child, and was advised to request a course deferral from her education provider, but a miscommunication led to the cancellation of her enrolment.

(b)    When the matter came before the Tribunal, the Member behaved in a rude and difficult manner. The appellant’s migration agent was unable to answer questions from the Tribunal Member and just “froze”. The appellant was unable to explain her situation or circumstances.

44    The Minister submitted that, in so far as these submissions sought to raise new grounds of appeal, the appellants required a grant of leave. The Minister opposed the grant of leave, on the basis that no explanation had been given for the appellants’ failure to raise the points before the primary judge, and that the grounds were not supported by any evidence and had no real prospects of success.

Consideration

45    Clause 572.227 of the Regulations (as in force at the relevant time) prescribed criteria that were required to be satisfied at the time of decision. It applied in circumstances where an application for a Subclass 572 student visa was made in Australia by a person who was the holder of a one of a number of specified classes or subclasses of temporary visa (other than student visas), and who was subject to the “highest assessment level for the relevant course of study”. In such circumstances, cl 572.227 required that “the applicant establishes exceptional reasons for the grant of a Subclass 572 visa”.

46    The context and underlying policy of cl 572.227 was addressed by Murphy J in Shashidhar at [18]-[21]:

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).

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.

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 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.

47    Justice Murphy proceeded (at [22]-[25]) to consider the meaning of the expression “exceptional reasons”, referring in particular to Kim v Minister for Immigration and Citizenship [2009] FCA 161 at [5] (Buchanan J) and to authorities on the meaning of “exceptional” in a range of different contexts. The term “exceptional” has generally been regarded as involving something that is out of the ordinary, unusual, special or uncommon, although it does not need to be unique, unprecedented or rare. Justice Murphy stated at [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.

48    In the present case, it is not in dispute that the appellant was required to satisfy cl 572.227 and to establish exceptional reasons for the grant of a Subclass 572 student visa. Nevertheless, the grounds of review relied on before the primary judge, which are now incorporated into Ground 2 of the Notice of Appeal, are to some extent misdirected to other issues that were not addressed by the Tribunal, such as whether the appellant was a bona fide student or could satisfy the genuine temporary entrant criterion contained in cl 572.223 (ie that the visa applicant is a genuine applicant for entry and stay as a student including because the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily).

49    The Tribunal’s decision rests on its finding that the appellant had not provided any reasons that could be classified as exceptional, and therefore had failed to provide evidence of exceptional reasons for the grant of a Subclass 572 student visa. In order to succeed on judicial review, it is necessary for the appellants to demonstrate that this finding was affected by jurisdictional error.

Ground 1

50    As set out above, the substantive content of this ground of appeal involves the following statement:

Here the applicant is mother to a child and had a husband, the second applicant in this case is responsible family member & genuinely trying to gain skills for betterment of her carrier [sic] & job market in her home country.

51    Adopting a generous approach, this appears to refer to the appellants’ family circumstances and the fact that the appellant is seeking to advance her career prospects in Vietnam.

52    The Tribunal considered the appellant’s claim that she wanted to complete her diploma in order to obtain an advantage in the job market when she returns to Vietnam, and specifically found that this did not amount to exceptional reasons for the grant of a Subclass 572 student visa.

53    There is nothing to indicate that the Tribunal overlooked the fact that the appellant had given birth to a child in August 2016, in so far as it had any relevance to the requirement to establish exceptional reasons for the grant of the Subclass 572 student visa. In this regard, the delegate’s reasons expressly referred to the letter from the appellant’s migration agent with the attached “Certificate of Confinement”. The Tribunal’s reasons indicate that it had regard to the reasons for the grant of the visa that had been provided by the appellant to the delegate.

54    It may be noted that the material provided by the appellant to the Tribunal in support of the review application, including each of the documents headed “Statement of Purpose”, did not place any emphasis on the appellant’s family circumstances as themselves constituting exceptional reasons for the grant of the Subclass 572 student visa. While the statement provided on 27 March 2017 contained a passing reference to the availability of support from the appellant’s aunt, and stated that the course would not involve “too much stress or pressure” for the appellant “being a responsible mother besides”, those oblique references did not raise a discrete claim that required separate consideration by the Tribunal. In particular, the appellant did not directly submit that her family circumstances were such that she could not return to Vietnam and make an offshore application for a student visa. Rather, the appellant’s submissions focused on the improvement of her future career prospects in Vietnam, a matter which the Tribunal directly addressed in its reasons for decision.

55    Accordingly, Ground 1 of the Notice of Appeal does not disclose any legal error by either the Tribunal or the primary judge.

Ground 2

56    This ground largely restates the grounds of review that were rejected by the primary judge, involving complaints that:

(a)    the Tribunal failed to consider the appellant’s immigration history and previous study in Australia, and that she meets the “genuine temporary entrant” criteria (as a genuine applicant for entry and stay as a student);

(b)    the Tribunal failed to accept the appellant’s evidence and the submissions of her migration agent; and

(c)    the Tribunal did not understand, and did not give the appellant an opportunity to explain, her exceptional circumstances, including by giving a decision orally at the conclusion of the hearing.

57    The first complaint cannot be sustained. As the primary judge correctly found (Reasons at [24]), the Tribunal addressed the appellant’s immigration history and did not make (and was not required to make) any findings as to whether the appellant satisfied the “genuine temporary entrant” criteria. In such circumstances, the appellant’s history of previous study in Australia had no direct relevance. The decision under review before the Tribunal concerned whether or not the appellant had established “exceptional reasons” for the grant of the Subclass 572 student visa.

58    In relation to the second complaint, the primary judge correctly found that the Tribunal was not obliged to accept the appellant’s evidence (see eg, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 (Beaumont J)), and it is not the role of the Court to entertain a review of the merits of the Tribunal’s decision.

59    In so far as the second aspect of this complaint relates to the Tribunal’s failure to consider the appellants’ post-hearing submissions, which were provided after the Tribunal had delivered its oral decision, the primary judge correctly held that the Tribunal’s decision was taken to have been made and notified to the appellant on the day and at the time that it was given orally, after which the Tribunal had no power to vary or revoke its decision (see s 368D of the Migration Act): Reasons at [27].

60    The appellant’s complaint that the Tribunal should have adjourned the hearing to allow her to provide further evidence cannot be sustained. The appellant had been on notice of the requirement to establish “exceptional reasons” for the grant of the visa since prior to the delegate’s decision. The Tribunal found that the appellant had failed to provide evidence to the delegate establishing “exceptional reasons”. The application to the Tribunal was lodged on 16 September 2016. The invitation to attend a hearing before the Tribunal was sent to the appellant on 28 February 2017. The hearing was conducted on 30 March 2017. The Tribunal considered the evidence provided by the appellant and the submissions made on her behalf by the migration agent. The Tribunal was not satisfied that the appellant had established exceptional reasons for the grant of the visa. There is no evidence that the appellant requested the Tribunal to adjourn the hearing so as to allow her to provide further evidence or submissions. As the primary judge observed (Reasons at [26]), the appellant “did not place before the Court any transcript or recording of the hearing before the Tribunal to support her claim that she was not allowed to adequately explain her case”. There is no basis on which it can be found that the appellant was denied a fair hearing by the Tribunal, nor that the Tribunal unreasonably refused to grant any adjournment request made by the appellant.

61    Ground 2 is therefore not made out.

Ground 3

62    By this ground, the appellant contends that the Tribunal misconstrued or misapplied cl 572.227, amounting to jurisdictional error. The ground proceeds to set out a range of matters relating to the social and economic position of women in Vietnam, the importance of “family solidarity and interdependence”, and the importance of higher education in giving confidence to women and securing human rights. The ground asserts that, in the light of these matters, “the desire to obtain a diploma/degree from an Australian University constitutes an exceptional reason for the [appellant]”.

63    The short answer to this ground of appeal is that these submissions do not appear to have been raised in these terms before either the delegate or the Tribunal, nor for that matter were they raised before the primary judge. It is not the function of this Court to determine whether or not the appellant can establish “exceptional reasons” within the meaning of cl 572.227 of Sch 2 of the Regulations.

64    As discussed above, the Tribunal clearly had regard to the appellant’s submission that the Diploma of Project Management would advance her career prospects in Vietnam. There is nothing to suggest that the Tribunal misconstrued or misapplied cl 572.227 in finding that this did not amount to exceptional reasons for the grant of a Subclass 572 student visa.

65    The appellant contends that the Tribunal “tried to see matters as not unusual or out of the ordinary, especially under cl 572.227 required all applicants for a student visa to establish … genuine reasons to continue the higher education in Australia”. As discussed above, the term “exceptional reasons” has generally been construed as requiring something that is out of the ordinary or unusual. This construction was accepted and adopted by the appellant in her submissions to the Tribunal. It was a question for the Tribunal whether the particular reasons advanced by the appellant were “exceptional” within the meaning of cl 572.227.

66    The appellant submits that “[t]he Tribunal’s conclusion that the relevant higher education is not exceptional is not [a] proper conclusion, since there is adequate reason why a person needs additional course to get a good job with her employer in her home country [to] be able to comply with occupational needs and skill requirements that call for a comprehension of this said education course”. In this context, the appellant seeks to draw some distinction between “higher education” in the sense of “education to attain higher position with employer, as distinct from … the act of doing further education”. These submissions do no more than revisit the case that was rejected by the Tribunal, which found that it was not an exceptional reason for the grant of the visa that the appellant would be able to complete a diploma that would give her an advantage in the job market when she returned to Vietnam. It was open to the Tribunal to conclude that such reasons were not “exceptional” in the commonly understood sense of out of the ordinary, uncommon, unusual or special (albeit not rare or unique).

67    In the course of its reasons, the Tribunal stated that “what is clear is that 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”.

68    These examples given by the Tribunal were drawn from Departmental policy guidelines, which do not purport to be exhaustive of the meaning of “exceptional reasons”. However, the Tribunal does not appear to have treated the examples as limiting the scope of the requirement in cl 572.227, as is evidenced by the use of the words “may include”.

69    The suggestion that cl 572.227 imposes a “high threshold” involves a gloss on the language used in the Regulations which may go beyond an explication of the ordinary meaning of the term “exceptional reasons”. There is a danger that such an approach could set a higher bar for the grant of a visa than the requirement to establish reasons that are “exceptional”, in the sense of out of the ordinary, uncommon, unusual or special. The term “exceptional reasons” in cl 572.227 is “a very broadly-based phrase engaging a wide range of circumstances which may be considered by the Tribunal on a case-by-case basis”, and some caution should be exercised against the substitution of different language to that actually used: see Arora v Minister for Immigration and Border Protection [2017] FCA 484 at [21] (Greenwood J).

70    Nevertheless, it may be noted that the Tribunal in Shashidhar had made similar observations about cl 572.227 involving a “a relatively high threshold requirement”: Shashidhar at [9]. This does not appear to have attracted any criticism in that case, in which Murphy J considered that “the expression ‘exceptional reasons’ in clause 527.227 must mean reasons that are unusual or out of the ordinary”: Shashidhar at [21]. Further, in post-hearing submissions provided with the leave of the Court in the present appeal, the Minister drew the Cout’s attention to the decision in Mehta v Minister for Immigration and Border Protection [2016] FCCA 748 at [10], where Judge Harland referred to cl 572.227 as setting out “a very high bar for an applicant to pass because it is necessary for the applicant to establish exceptional reasons for granting that visa”.

71    In the circumstances, on a fair reading of the Tribunal’s reasons considered as a whole, I do not consider that the Tribunal’s reference to cl 572.227 as a “relatively high threshold requirement” betrays any misconstruction of the Regulations that was material to the Tribunal’s decision.

72    Accordingly, I would dismiss Ground 3 of the notice of appeal. In so far as this ground goes beyond the grounds that were advanced before the primary judge, I refuse leave to raise the ground for the first time on the appeal.

73    It remains to deal with the matters that the second appellant sought to raise in oral submissions at the hearing of the appeal. These matters may be summarised as follows.

(a)    The appellant wishes to study for a Masters degree, but she had been improperly advised and persuaded by her migration agent to study a Diploma course. Her enrolment was subsequently cancelled as the result of a miscommunication.

(b)    The Tribunal Member behaved in a rude and difficult manner, as a result of which the appellant’s migration agent “froze” and was unable to answer questions or to provide an explanation and the appellant was unable to explain her situation or circumstances.

74    As the Minister submitted, the appellants require leave to raise any grounds of appeal that were not raised before the primary judge. Such leave should not be granted unless it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [48] (Kiefel, Weinberg and Stone JJ).

75    The appellants have not provided any explanation as to why the matters set out above were not raised at first instance. In any event, the matters do not raise a ground that could have any prospect of success on this appeal. Apart from the fact that the proposed grounds are not supported by any evidence, they are not directed to any error affecting the Tribunal’s decision. While the post-hearing submission that was provided to the Tribunal after its oral decision adverted to the difficult behaviour of the Tribunal Member, this was directed to the effect of that behaviour on the appellants as opposed to any impact on their migration agent. In any event, no such complaint was raised in the judicial review proceedings before the Federal Circuit Court. Rather, the allegation that the Tribunal’s decision “was not taken in a fair manner” was concerned with its rejection of the appellant’s evidence and its failure to afford an opportunity to provide further evidence. To the extent that the appellants now seek to raise some element of unfairness in the manner in which the Tribunal put questions to the appellant or her migration agent, such an allegation is not supported by any evidence about the conduct of the hearing. Again, as the primary judge noted below (Reasons at [26]), the appellants have not provided any transcript or recording of the Tribunal hearing, nor is there any other evidence about the manner in which the hearing was conducted.

76    Accordingly, in so far as the appellants sought to raise any fresh grounds in their oral submissions at the hearing, I refuse to grant leave to rely on those grounds on the appeal.

Conclusion

77    The Tribunal’s decision was not affected by jurisdictional error, and the decision of the primary judge must be affirmed. The appeal is dismissed with costs.

Associate:

Dated:    28 June 2024