NEERAJ v Minister for Immigration

[2016] FCCA 1714

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEERAJ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1714

Catchwords:
MIGRATION LAW – Application for judicial review – Consideration of cl.573.211 requirements for the grant of a student visa – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:
AZAFB v Minister for Immigration & Border Protection [2015] FCA 1383 Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73

First Applicant: NEERAJ NEERAJ

Second Applicant: VIKAS SABHARWAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 964 of 2015

Judgment of: Judge McGuire

Hearing date: 23 June 2016

Date of Last Submission: 23 June 2016

Delivered at: Melbourne

Delivered on: 23 June 2016

REPRESENTATION

The First named Applicant: Appeared in person

The Second named Applicant: Appeared in person

Counsel for the Respondents: Mr Day

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The applications for judicial review be dismissed.

2. The applicants pay the first respondent’s costs set in a quantum of $3,298.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 964 of 2015

NEERAJ NEERAJ

First Applicant

VIKAS SABHARWAL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In this matter the application is one seeking judicial review of a decision of the Migration Review Tribunal (as it then was) made

   
   

   14 April 2015 affirming a determination of the Minister’s delegate not to grant the primary applicant a Student Class TU Visa.

2. The background facts are that the applicants are husband and wife.  They are from India. The first and primary applicant is the wife.

   
   

   She arrived in Australia in February 2007 as the holder of a Student Class TU Subclass 573 Visa.  In August 2014 the applicant applied for a further Subclass 573 Visa.  The second applicant applied as a member of the first applicant’s family unit.

3. On 20 August 2014 the Minister’s delegate wrote to the applicant inviting comments as to exceptional reasons within the context of the legislation for the grant of the visa and explaining that within the context of that application, it was necessary to demonstrate exceptional circumstances.

4. The applicant provided a response and on 19 September 2014 the Minister’s delegate refused the application on the basis that the applicant had not satisfied or provided exceptional reasons for the grant of the visa.

5. The applicant applied for a review to the Migration Review Tribunal and appeared before that tribunal on 8 April 2015. The Tribunal’s decision was handed down on 14 April 2015.

6. The applicants appear before me in person today without the benefit of legal assistance.  The first applicant has filed an application which sets out the following grounds of complaint:

   (1)The reason given by Department is not elaborated enough with details.  It only say not satisfied with my answers; and

   (2)My situation of being onshore applicant for a student visa application was derived from the recommendation and invitation letter provided by the Department delegate.

7. The applicants did not comply with the Registrar’s orders and directions for the provision of written submissions. I do have the benefit of written submissions from the first respondent and of Mr Day of Counsel appearing today.

8. Against that background, I invited oral submissions from each of the applicants who appear together in court today and they have articulated and made clear their arguments such not being quite clear on the face of the application.

9. That argument which I took some considerable time to make sure was understood by both Mr Day and the court, are the applicants claiming that the Tribunal misconstrued its obligations for consideration of a

   
   

   573 visa in respect of the provisions of clause 573.227 itself. In summary, the argument of the applicants is that they were not required to establish “exceptional reasons” for the grant of the subclass 573 visa by reason of the primary applicant at the time of the application being a holder of a subclass 485 temporary graduate visa.

10. There eventuated some discussions between the bench and the applicants and Mr Day with the result being essentially an understandable but factual misunderstanding of clause 573.227 by these applicants. It is something I have some sympathy for where parties for whom English is not a first language negotiating the vagaries of the Migration Regulations 1994.

11. In my view, despite my sympathy to the applicants’ position, clause 573.227 establishes in respect of these applicants four necessary criteria for the grant of the visa. Firstly, this is a situation where the application was made onshore in Australia. Secondly, subject to clause 573.227A, in respect of the assessment level for the particular applicant in the course of study which is not in issue here.  And, importantly, that at the time of the application, the applicants met the requirements of clause 573.211 including being the holder of a subclass 485 temporary graduate visa which was satisfied.  There is then a fourth requirement which appears on the last line of clause 573.227 as:

    The applicant establishes exceptional reasons for the grant of a subclass 573 visa.

12. The proper understanding of that clause is that the fourth requirement of an applicant is to actually establish the exceptional reasons for the grant of the subclass 573 visa.  That last line does not, in effect, operate only or excluded by an exception in respect of subclass 485 which was the understanding of these applicants.

13. It is a misunderstanding by them as to their obligations and onuses under the legislation.  And, again, for a second or third time, one that

    
    

    I am sympathetic towards but, in effect, their interpretation of this complicated section was in error.

14. That brings me to the role of this court and, as I have said to the applicants that despite their plea to this court, it is not my role to conduct a further hearing on the merits of their visa application.

    
    

    That is firstly the task of the Minister’s delegate and then, if dissatisfied, an applicant has a mechanism for review before the tribunal. My role is limited in determining whether or not there is an error in the process or determination of the Tribunal in the sense of an error at law.

15. Given the nature of the argument that is put and my reading of the short reasons of the Tribunal, it is clear that the material before the Tribunal did not establish exceptional reasons for the grant of the visa as required by clause 573.227 and as such the Tribunal’s decision in refusing the visa is not infected by jurisdictional error and it is inevitable that the application for judicial review must be dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 23 June 2016