Anupama v Minister for Immigration
[2009] FMCA 817
•10 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ANUPAMA v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 817 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – application of exclusion period – previous visa cancelled within three years – applicant claimed to have relied on Departmental advice that she could cease studying, which led to the cancellation of her previous student visa – whether that reliance established a “compassionate or compelling circumstance” considered – Tribunal found that it was the applicant’s responsibility to comply with the conditions on her visa – whether the Tribunal asked itself the wrong question considered. WORDS AND PHRASES – “compelling circumstance”. |
| Migration Act 1958 (Cth), ss.116, 353, 357A, 420, 422B, 424A Migration Amendment (Review Provisions) Act 2007 (Cth) Migration Regulations 1994 (Cth) |
| Babicci v Minister for Immigration [2005] FCAFC 77 SZLLY v Minister for Immigration (2009) 107 ALD 352 |
| Applicant: | ANUPAMA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2109 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 25 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Tynan |
| Solicitors for the Applicant: | Rasan T Selliah & Associates |
| Counsel for the Respondents: | Mr J A C Potts |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal made on 8 July 2008.
A writ of mandamus shall issue, requiring the Migration Review Tribunal to redetermine the application before it according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2109 of 2008
| ANUPAMA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was made on 8 July 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant Ms Anupama a Student (Temporary) (Class TU) Visa. The Tribunal found it had no jurisdiction in relation to a second named applicant who is not a party to these proceedings.
The following statement of background facts is derived from the applicant’s written submissions filed on 13 November 2008 and the Minister’s written submissions filed the following day.
The applicant is a 27 year old citizen of India.[1] She arrived in Australia on 24 September 2006.[2] She was granted a Class TU Student (Sub-Class 573) Visa on 25 October 2006, permitting multiple travel, but not permitting arrival after 3 July 2010.[3] She commenced an advanced diploma and then a degree in hospitality management at the Carrick Institute of Education. She had an above 90 per cent attendance rate, receiving distinctions, credits and one high distinction[4]. The applicant married Mr Ravinder Singh on 22 February 2007.[5] Mr Singh is a non‑citizen who also held a student visa and was living in Australia.
[1] Court Book (“CB”) at 38.
[2] CB 41.
[3] CB 42.
[4] CB 61-78.
[5] CB 112 at [11].
On 23 March 2007, Ms Anupama applied for a Student (Temporary) (Class TU) visa (“student-dependent visa”) as a member of a family unit, the primary visa holder being her husband. She claimed to have been told by the Minister’s Department that the whole process took around six to eight weeks and that it was up to her to decide if she wanted to keep studying or not in the interim. She was told that there would not be any problem if she stopped studying.
On 4 April 2007, the applicant informed the Carrick Institute of Education (in person) of the fact of her marriage and that she was not pursuing her studies further.
Ms Anupama’s sub-class 573 visa was cancelled pursuant to s.116(1)(b) of the Migration Act 1958 (Cth) (“the Migration Act”).[6] The visa was cancelled because of a breach of regulation 8202.[7] The applicant alleges that:
·On 2 April 2007, she enquired about her visa status with the Department and was told that it was permissible for her not to continue her studies.
·On 29 May 2007 she called the Department and was informed that there was ‘no problem’ if she was not attending college. She was further informed that due to the number of applications, it was taking longer for her application to be processed than expected.
·On 7 June and 27 June 2007, she telephoned the Department and the information she had previously been told was confirmed.
·On 29 June 2007, she attended the Department in Parramatta to find out why the application was taking so long to approve and she was informed that she needed to contact the Department in Central immediately, as her student visa was on “auto cancellation”.
·On 15 August 2007, she again attended the Department and was informed that because she stopped studying, she did not meet the conditions for her student via. Therefore, her visa had been cancelled. However, the officer of the Department (“Paul”) led the applicant to believe that she was still able to obtain her student-dependent visa.
[6] CB 81-87.
[7] CB 85.
On 20 August 2007, the applicant was informed that since her student visa had been cancelled, she was not eligible for a student-dependent visa.
On 30 August 2007 the applicant’s application for a student (temporary) (Class TU) visa as a member of her husband’s family unit was refused.[8]
[8] CB 21-23.
On 10 September 2007 the applicant and her husband sought review by the Tribunal.[9]
[9] CB 26-31.
On 30 June 2008 the applicant’s migration agent wrote to the Tribunal enclosing a number of documents, including a document entitled “chronology of events”.[10] The chronology included allegations about things that Ms Anupama claimed she had been told by the Department.
[10] CB 55-78. The chronology is at CB 57.
On 2 July 2008 Ms Anupama and her husband appeared before the Tribunal to give evidence. The husband did not give evidence at the hearing.[11] The Tribunal affirmed the decision not to grant Ms Anupama the student visa, and found that it had no jurisdiction in relation to her husband Mr Singh.[12]
[11] CB 112 at [13].
[12] CB 109.
Ms Anupama, by an application filed on 14 August 2008, seeks judicial review of the Tribunal’s decision affirming the decision of a delegate of the first respondent Minister not to grant her a student visa.
Tribunal’s decision
The Tribunal identified the central issue as whether the applicant met the criterion in clause 573.323 in Part 573 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Migration Regulations”). That criterion required at the time of the decision, that the Minister be satisfied that the applicant satisfied, inter alia, public interest criteria 4013.[13]
[13] CB 110 at [8].
The Tribunal concluded on the information before it that Ms Anupama’s sub-class 573 visa was cancelled pursuant to ss.116(1)(b) and 116(3) and regulation 2.43(2)(b).[14] This was information derived from the cancellation decision, which the applicant provided to the Tribunal.[15] The Tribunal therefore found that because the applicant’s visa was cancelled, pursuant to sub-clause 2 of PIC 4013, she was affected by a risk factor.[16]
[14] CB 113 at [24].
[15] CB 112 at [15].
[16] CB 113 at [24].
The Tribunal then held that PIC 4013 provides that a person affected by a risk factor cannot be granted a visa unless three years had passed between the date of the relevant visa cancellation, or Ministerial decision, and the date of their application for a further visa to which PIC 4013 applies. That was the case unless the decision maker was satisfied that, in the circumstances of the particular case, there were:
a)compelling circumstances affecting the interests of Australia; or
b)compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident, or eligible New Zealand citizen justifying the granting of the visa within the 3 year period.[17]
[17] CB 113-114 at [25].
The Tribunal was not satisfied that there were compelling or compassionate circumstances affecting the interests of an Australian citizen, Australian permanent resident, or eligible New Zealand citizen.[18] On the evidence before it, there was no evidence of any Australian citizen, Australian permanent resident, or eligible New Zealand citizen affected by the refusal to grant the applicant her student visa.
[18] CB 114 at [29].
The Tribunal referred to the fact that the applicant had given evidence that on various occasions she had been advised by different departmental officers that given her application for student visa had been lodged on 23 March 2007, “she did not need to attend any more classes and she would be granted the visa on the basis of being a member of the family unit”. The applicant claimed that she had stopped going to classes on 2 April 2007. She claimed she had done what she was told although she knew that attached to her visa there was a condition relating to attendance. In that regard the Tribunal found:
The Tribunal has carefully considered the applicant’s explanations and whilst the Tribunal accepts as plausible that the applicant was given advice by DIAC it may have misled her, ultimately it is her responsibility to ensure compliance with her visa conditions. Furthermore, on her own evidence, the applicant said the case officer from DIAC who cancelled the visa (‘Paul’) told her about her options, namely, leave Australia, apply for a bridging visa, wait for the outcome of her application lodged on 23/3/07, which is different to allegedly being told to stop studying.[19]
[19] CB 114 at [30].
The Tribunal recognised that in terms of compelling circumstances affecting the interests of Australia, PAM 3 suggests that those circumstances might arise where the exclusion period was the consequence of Departmental error. The Tribunal found that it was satisfied that “the evidence does not suggest a Departmental error, or that the Department actually told her to stop studying. Although it is plausible that she may have been misled as to the consequences of her not studying, as noted, it was her choice to stop studying and she knew that poor attendance could constitute a breach of a visa condition”.[20]
[20] CB 114-115 at [31].
The Tribunal expressed concern about the applicant’s decision to stop going to classes because she had lodged a visa as a member of a family unit, which raised doubts in the Tribunal’s mind about her being a genuine student. The Tribunal noted the applicant could have continued to attend her classes, and she chose not to, and she could have also taken action in relation to the visa cancellation.[21]
[21] CB 115 at [32].
The Tribunal ultimately concluded based on a consideration of the evidence as whole, that is was not satisfied that there existed compelling or compassionate circumstances to justify granting the visa.[22] On that basis the Tribunal found that applicant did not meet PIC 4013 and consequently did not meet the criterion described in clause 573.323.[23]
[22] CB 115 at [33].
[23] CB 115 at [34].
The application
The application raises the following grounds and particulars:
1. The Tribunal’s discretion miscarried in relation to its consideration of compelling circumstances affecting the interests of Australia, giving rise to a jurisdictional error.
Particulars
a. The Tribunal took into account irrelevant considerations and failed to take into account relevant considerations, namely:
i. whether or not the applicant was ‘a genuine student’. Such a consideration is in no way relevant to a consideration of whether there are compelling circumstances affecting the interests of Australia.
ii. the applicant’s cessation of attendance at classes, without recognising that the cessation was because of advice from the Department of the first respondent;
iii. the applicant’s failure to take action in relation to the visa cancellation, again without recognising that the applicant’s failure to take action was because the advice of the Department was to wait for the outcome of the application for a student visa as a member of a family unit.
b. If it is determined that the issue whether the applicant was a ‘genuine student’ was a matter relevant to the exercise of the Tribunal’s discretion, then the Tribunal failed to take into account the applicant’s attendance record and excellent grades up to the point of advice by the Department of the First Respondent. Such failure resulted in the miscarriage of the Tribunal’s discretion.
2. The Tribunal misunderstood and/or misapplied the law as to what may constitute ‘compelling circumstances affecting the interest of Australia’. The error of law resulted in a jurisdictional error by way of miscarriage of the Tribunal’s discretion.
See:
Chaudhary v Minister [for] Immigration and Ethnic Affairs [1994] FCA 994 at [8]-[10];
Re Chan [v] Minister for Immigration and Ethnic Affairs (1978) 1 ALD 55 at 56;
Drake [v] Minister for Immigration and Ethnic Affairs [1979] AATA 179.
3. The Tribunal failed to act according to substantial justice, in breach of s.357A(3) of the Migration Act 1958, and/or failed to act in a way that is fair and just, in breach of s.353(2)(b) of the Act.
Particulars
a. The Tribunal failed to take into account the substantial injustice arising from the misleading conduct of the Department of the First Respondent as a consideration separate from its narrow construction of ‘compelling or compassionate circumstances’.
b. The Tribunal failed to consider that this application was actually a challenge to both the refusal decision and to the cancellation of the applicant’s initial visa, which the applicant was able to challenge at the time the application for review was lodged with the Tribunal but is now no longer able to challenge by virtue of the time limitations of the Act and Migration Regulations 1994.
Particular 3(b) was not pressed.
Evidence
I received as evidence the court book filed on 8 September 2008. That is the only evidence I have before me.
Submissions
The applicant submits that the Tribunal took into account a number of matters which were irrelevant to the review. The first is said to be whether or not whether the applicant was a “genuine student”. The applicant also asserts that if her genuineness as a student was relevant to the exercise of discretion, then the Tribunal failed to take into account evidence relevant to that issue. Secondly, the applicant submits that the Tribunal placed great weight throughout its decision on the fact that it was the applicant’s choice to cease attending her classes, without recognising that the cessation was because of advice from the Minister’s Department. Thus, the applicant’s “choice” was based on misinformation or a misrepresentation as to the legal consequences of her action. A similar argument is raised in relation to the Tribunal’s observation that the applicant could have but did not take action in relation to her initial visa cancellation.
The applicant also submits that the Tribunal did not understand the law in relation to “compelling circumstances affecting the interests of Australia”. The applicant notes that the Tribunal proceeded on the basis that there was no direct guidance by way of judicial interpretation of that phrase but refers to a number of authorities bearing on the “interests of Australia”. The applicant submits that the Tribunal’s refusal to exercise its discretion to remedy the situation flowing from errors by Departmental officers was inconsistent with Australia’s interests and being seen to employ fair regulation in the granting of visas. The applicant also asserts that the Tribunal erred in recognising but not applying the policy in the Policy and Procedures Manual that the compelling circumstances included a Departmental error.
Finally, the applicant submits that there was a failure by the Tribunal to act in accordance with substantial justice or in a way that is fair and just.
The Minister makes the following submissions in relation to the grounds of review:
The first ground of review complains that the Tribunal’s discretion in relation to its consideration of whether there were compelling circumstances affecting the interests of Australia miscarried, giving rise to jurisdictional error. The applicant complains that the Tribunal took into account irrelevant considerations, and failed to take into account relevant considerations.
The applicant first complains that the applicant took into account an irrelevant consideration, namely whether or not the applicant was genuine student. It is said that this is an irrelevant consideration to the inquiry that the Tribunal was embarking upon. The issue before the Tribunal was whether or not the Tribunal was satisfied that, “in the particular case” there were “compelling circumstances that affect the interest of Australia” which would “justify the granting of the visa within 3 years after the cancellation or determination”. That criterion invites consideration of the circumstances of the particular case, and in particular whether there are compelling circumstances that justify the granting of the visa within 3 years after the cancellation, which necessarily invites the consideration of the circumstances in which the earlier visa was cancelled. It cannot be said, in the first respondent’s submission, that doubts about whether or not an applicant was a genuine student, having held a student visa which was cancelled, are irrelevant to that broad discretionary inquiry mandated by PIC 4013.
The applicant then complains that the Tribunal took into the account the applicant’s cessation of attendance at classes without recognising that the cessation was because of advice from the Department of the first respondent. The Tribunal plainly considered the applicant’s evidence that she was advised by different Departmental officers that she did not need to attend any more classes and she would be granted the visa.[24] The Tribunal made particular findings in relation to this evidence.[25] It cannot be said that the Tribunal failed to take into account the evidence put before it. The way in which this particular of ground 1 is phrased is that the Tribunal erred because it failed to take into account a conclusion that the applicant says it should have drawn. The Tribunal was not obliged to draw the conclusion that the cessation of attendance at classes was because of advice from the Department. To the extent that the Tribunal was obliged to take into account the evidence put forward it did so.
[24] CB 112 at [16].
[25] CB 114 at [31].
The applicant then complains that the Tribunal took into account the applicant’s failure to take action in relation to her visa cancellation, without recognising that the applicant’s failure to take action was because of the advice of the Department. Again this is a complaint to the Tribunal failed to take into account a conclusion which the applicant asserts the Tribunal should have drawn from the evidence. As submitted above, the Tribunal plainly took into account the evidence that the applicant had received advice from the Department, and made findings in relation to it. It was obliged to do no more.
The applicant then complains that, if it is determined that the issue of whether the applicant was a genuine student was a matter relevant to the exercise of the discretion, then the Tribunal failed to take into account the applicant’s attendance record and excellent grades up to the point of advice by the Department. The Tribunal plainly took this evidence into account and it refers to it expressly in its reasons.[26] The Tribunal was not under any obligation to refer to every piece of evidence and every contention made in the findings and reasons section of its decision, see: Applicant WAEE v MIMIA (2003) 75 ALD 630 at [46]. The Tribunal did in fact refer to the fact that the applicant had “performed well academically”.[27]
[26] CB 112 at [12].
[27] CB 115 at [32].
The first ground of review should be rejected.
Second ground of review
The applicant contends the Tribunal misunderstood or misapplied the law as to what may constitute “compelling circumstances affecting the interests of Australia”. The applicant refers to three authorities none of which are directly on the point of whether or not there are “compelling circumstances affecting the interests of Australia”. The Tribunal took some care to endeavour to construe the meaning of those terms, and arrived at a conclusion as to their meaning which was entirely consistent with the meaning of those words properly understood as a matter of law.[28]
[28] CB 114 at [27]-[28].
The second ground of review should also be rejected.
Third ground of review
The applicant alleges that the Tribunal failed to act according to substantial justice, in breach of section 357A(3) and failed to act in a way that was fair and just, in breach of section 353(2)(b). It is alleged the Tribunal failed to take into account the substantial injustice arising from the misleading conduct of the Department. It is separately alleged that the Tribunal failed to consider that the application was just a challenge not only to the refusal decision, but also the cancellation decision.
Sections 357A and 353 do not delimit jurisdictional boundaries. In MIMA v Eshetu (1999) 197 CLR 611 at 628 at [49], Gleeson CJ and McHugh J said of the RRT equivalent, section 420:
They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as appropriate to tribunals.
This reasoning was applied in SZBPQ v MIMIA [2005] FCA 568 at [15], where Hely J said that compliance with s 420 was “not a precondition to lawful decision-making”.
In any event, the Tribunal took into account the evidence and claims made by the applicant about the advice which she alleged had been provided to her by the Department, and was ultimately of the view that in the circumstances, and given the other findings it had made, it did not lead to compelling and compassionate circumstances of the relevant kind such that it should grant the visa within the 3 years of the cancellation of the earlier visa.
It is unclear whether in the application to the Tribunal the applicant also ticked the box that she was seeking review of the decision to cancel her visa.[29] It is clear she annexed her application the visa refusal decision, rather than the cancellation decision.[30] In its reasons, the Tribunal records that at the hearing it advised the applicant that the Tribunal was not reviewing the decision to cancel, but rather the decision to refuse the visa. The Tribunal recorded that the applicant confirmed that she did not take any action in relation to the cancellation decision, she thought she would be granted the visa she had applied for.[31] This does not suggest that the applicant indeed thought she was attempting to challenge the cancellation decision.
Even if she had been, the application to the Tribunal was lodged on 10 September 2007. The cancellation decision was notified on 15 August 2007.[32] As the notification of the decision indicated to the applicant, the applicant was required to apply to the Tribunal within 7 working days after the cancellation, which as the notification indicated was by 24 August 2007.[33] See also: Reg 4.10(1)(b). Even if the application to the Tribunal was intended to be an application reviewing the cancellation decision, it was plainly out of time. The Act makes no provision for the extension of time and there is no power in the Court to extend that time.
This ground should also therefore be rejected.
[29] CB 30.
[30] CB 32-37.
[31] CB 112 at [17].
[32] CB 87.
[33] CB 85.
Reasoning
The third ground of review may be dealt with shortly. I accept the Minister’s submissions. The decision of the High Court in Eshetu establishes that ss.357A and 353 do not create obligations in addition to the code of the procedure in Part 5 of the Migration Act in relation to the Tribunal but are merely facultative. This was confirmed recently in relation to Part 7 of the Migration Act by the Full Federal Court in Minister for Immigration v SZMOK [2009] FCAFC 83 where, relevantly, the Court said at [13]-[18]:
The extent, if any, to which the introduction by s 422B(3) of an obligation for the Tribunal to act in a way that is fair and just impinges on the operation of s 422B(1) is not entirely clear. Section 422B(3) was introduced by the Migration Amendment (Review Provisions) Act 2007 (Cth) (the Amending Act). The Explanatory Memorandum published in connection with the Bill for the Amending Act stated that the proposed s 422B(3) would ensure that, in carrying out the procedures and requirements set out in Division 4, which would continue to be an exhaustive statement of the natural justice hearing rule, the Tribunal must do so in a way that is fair and just. The Explanatory Memorandum said that that would complement s 420(1) of the Act.
Provisions such as those found in s 420(1) are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law and regarded as inappropriate to Tribunals (see Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 (Eshetu’s Case) at [49]). The direction in s 420(1) that the Tribunal pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick does not amount to a requirement that the Tribunal observe a particular procedure in connection with the making of a particular decision for the purposes of Division 4 (see Eshetu’s Case at [108]). Thus, s 422B(1) did not remove the exhortation of s 420(1) in respect of Division 4. Rather, s 420(1) was intended to continue to operate, notwithstanding the inclusion of s 422B(1).
Clearly, s 422B(1) has not been repealed by s 422B(3). Accordingly, s 422B(1) continues to exclude common law procedural fairness in relation to the matters dealt with by Division 4, except to the extent of the procedural codes set out in Division 4. Section 422B(3) may be understood as an exhortative provision in the same way as s 420(1) is an exhortative provision. Just as s 420 does not create rights or a ground of review, additional to specific rights of review that are expressly given by the Act, so s 422B(3) should not be understood as creating a procedural requirement over and beyond what is expressly provided for in Division 4 (see Eshetu’s Case at [158]).
Section 424A does not require the Tribunal to put its thought processes or preliminary conclusions to an Applicant (see SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]). Further, s 422B(3) should not be construed as imposing such an obligation or requiring s 424A to be interpreted as imposing such an obligation. Section 422B(3) speaks of how the Tribunal must act in applying Division 4. It is not a free standing obligation, but simply draws content from the other provisions of Division 4.
Thus, s 422B(3) was not intended to qualify or cut down in any way the express statement in s 422B(1) that Division 4 contained an exhaustive statement of the application to the conduct of a review by the Tribunal of the natural justice hearing rule in relation to the matters dealt with in Division 4. In that sense, s 422B(3) complements s 420(1). The unequivocal statement in s 422B(1) of the exhaustive nature of Division 4 renders it unarguable that some other requirement[s] of fairness are to be implied.
However, while the effect of s 422B(1) was to make Division 4 an exhaustive statement of the rule, there was nothing in Division 4 to indicate that any of the procedural powers contained in it were to be used fairly. Accordingly, it was possible that those powers could be used in ways that were not fair, without infringing the procedural requirements of Division 4. Section 422B(3) might therefore be understood as restoring fairness and justice as a procedural concept. In those circumstances, the requirement that the Tribunal act in a way that is fair and just does not refer to substantive notions of justice or fairness but is more usefully to be compared with the content of the words “justice” and “fairness” in the expressions “natural justice” and “procedural fairness”, respectively (see SZLLY v Minister for Immigration & Citizenship (2009) 107 ALD 352 at [22] to [24]).
I reject the third ground of review on the basis of the Full Court’s decision.
The first two grounds address one issue in different ways. That issue is whether the Tribunal fell into error in dealing with the applicant’s claim that she was misled to her detriment by Departmental advice. The question before the Tribunal was whether that assertion, if accepted, constituted a compassionate or compelling circumstance warranting the exercise of discretion in the applicant’s favour. The Tribunal’s reasons were as follows[34]:
[34] CB 113-115.
The Tribunal has noted that the second-named applicant was included in the delegate’s decision and in the application for review. However, as confirmed by the first-named applicant, the second-named applicant has a current visa and it would appear that he was ‘included’ in the application lodged on 23 March 2007, by error.
As noted, the visa was refused on the basis that the applicant did not meet public interest criteria 4013 and consequently the delegate found that she did not satisfy the requirements of cl.573.224 of Schedule 2. The Tribunal however notes that as a member of a family unit, the applicable criterion that includes PIC 4013 is cl.573.323.
Public Interest Criteria 4013(1A), (2), (2A), (3), (4) and (5) prescribe circumstances in which a person is affected by a risk factor. The information before the Tribunal indicates that the first-named applicant’s 573 visa was cancelled pursuant to “s.116(1)(b) and 116(3) and Reg 2.43(2)(b)” (folio 82, MRT file). There is no dispute about the actual cancellation. On the basis of the available information, the Tribunal finds that the first-named applicant’s visa was cancelled and that pursuant to subclause 2 of PIC 4013, she is affected by a risk factor.
Essentially, PIC 4013 provides that a person affected by a risk factor cannot be granted a visa unless 3 years have passed between the date of their relevant visa cancellation or Ministerial decision and the date of their application for a further visa to which PIC 4013 applies. This is the case unless the decision maker is satisfied that, in the particular case:
· compelling circumstances affecting the interests of Australia; or
· compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen
justify granting the visa within this 3 year period.
The Tribunal must now decide whether there are compelling or compassionate circumstances of the relevant kind and, if so, decide whether those circumstances justify granting the visa.
There are no definitions of compelling or compassionate circumstances in the Act or Regulations, and there has been no direct guidance by way of judicial interpretation in the context of PIC 4013. Whether a circumstance or reason is compelling and/or a compassionate ground is a question of fact and degree for the Tribunal. In making such an assessment, the scope of the meaning of the relevant phrase must be referenced by both the context in which it appears and the purpose of the relevant provision. The considerations that may be relevant to each of the provisions in PIC 4013(1)(b) will differ as one relates to the interests of Australia and the other relates to the interests of an Australian citizen/permanent resident/eligible New Zealand citizen. See also general commentary on Compelling and/or compassionate circumstances.
Departmental guidelines (PAM3) suggest various instances of compelling or compassionate circumstances. Whilst not binding, the Tribunal may have regard to the Department’s interpretation of what may constitute compelling or compassionate circumstances. However, whether there exist compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen is a question of fact and degree for the Tribunal. Generally, having regard to the ordinary meaning of those words, ‘compassionate’ can be defined in the dictionary as "circumstances that invoke sympathy or pity"), where as ‘compelling’ (to compel) may include "to urge irresistibly" and to "bring about moral necessity".
In consideration of the evidence as a whole, the Tribunal is not satisfied that there are compelling or compassionate circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The Tribunal has considered the applicant’s claims that she does not want to leave her husband in Australia, and that she only has her mother in India, however, as her husband is not an Australian citizen, Australian permanent resident or eligible New Zealand citizen, compelling or compassionate circumstances do not arise.
The applicant gave evidence that on various occasions (e.g. beginning of February 2007, 29/5/07, 6/7/07 and 27/6/07), she was advised by different DIAC officers that given her application lodged on 23/3/07, she did not need to attend any more classes and she would be granted the visa on the basis of being a member of the family unit. She said she stopped going to classes on 2/4/07. She said she did what she was told, although she knew that attached to her visa, there was a condition relating to attendance (i.e.8202(3)(b)). The Tribunal has carefully considered the applicant’s explanations and whilst the Tribunal accepts as plausible that the applicant was given advice by DIAC that may have misled her, ultimately it is her responsibility to ensure compliance with her visa conditions. Furthermore, on her own evidence, the applicant said the case officer from DIAC who cancelled the visa (‘Paul’) told her about her options, namely, leave Australia, apply for a bridging visa, wait for the outcome of her application lodged on 23/3/07, which is different to allegedly being told to stop studying.
In terms of compelling circumstances affecting the interest of Australia, PAM 3 suggests those circumstances may arise where the exclusion period is of a consequence of Departmental error. The Tribunal notes that although the applicant claims she ‘did what she was told, the Tribunal is satisfied that the evidence does not suggest a Departmental error, or that the Department actually told her to stop studying. Although it is plausible that she may have been misled as to the consequences of her not studying, as noted, it was her choice to stop studying and she knew that poor attendance could constitute a breach of a visa condition.
Furthermore, the Tribunal has concerns about the applicant’s decision to stop going to classes because she had lodged a visa as a member of a family unit, which raises doubts about her being a genuine student, in the first instance. The Tribunal is not persuaded by her explanation that she was considering other options/courses. The applicant was granted a visa to study in Australia. She performed well academically but she decided to stop studying, which she said was in accordance with advice from DIAC. The evidence before the Tribunal suggests that she decided to stop studying because it would appear that she was considering other courses/options. The Tribunal has considered the advisor’s submissions that the applicant did what she could, with which the Tribunal does not agree. The Tribunal does not wish to sound harsh but the applicant could have continued to attend her classes and she chose not to. She could have also taken action in relation to the visa cancellation.
The Tribunal has considered the case very carefully and the Tribunal recognises the potential consequences for the applicant, however, in consideration of the evidence as a whole, the Tribunal is not satisfied that there exit compelling or compassionate circumstances, to justify granting the visa.
On the basis of the above, the Tribunal finds the first-named applicant does not meet PIC 4013 and consequently, she does not meet cl.573.323.
The Tribunal was apparently correct in stating that there was no direct guidance by way of judicial interpretation of what might constitute compelling or compassionate circumstances in the context of PIC 4013. However, there have been relevant judicial interpretations of those terms in other contexts that the Tribunal might properly have had regard to. For example, in SZGBR v Minister for Immigration [2005] FMCA 824 at [19]-[20] Smith FM said:
Authorities on the meaning of tests of “compelling and compassionate circumstances” in other regulations have shown that these words confer on a decision maker a broad latitude of understanding and assessment of how he identifies and weighs relevant circumstances. For example, in Nguyen v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 169 at 12, Marshall J refers to authority that:
It should also be borne in mind that the concept of a compelling and compassionate circumstance…is one that relates to "an event or events that are far-reaching and most heavily persuasive".
In Babicci v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 77 a Full Court considered the meaning of an exemption or waiver power in relation to a visa condition which included a test of “compelling circumstances”. Their Honours said:
[21] In our opinion there is no error in construing "compelling circumstances" to mean circumstances which force or drive the decision maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion. …
[24] There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of “compelling. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision maker to make a positive finding that the prohibition contained in (the relevant regulation) should be waived.
The Tribunal accepted that the applicant was given advice by the Department which was misleading[35]. However, the Tribunal found that ultimately it was the applicant’s responsibility to ensure compliance with her visa conditions.
[35] CB 114.
The Tribunal then took into consideration the fact that “Paul”, the case officer who met the applicant on 15 August 2007 when her student visa was cancelled, had told her that her options were to leave Australia, apply for a bridging visa, or wait for the outcome of her application lodged on 23 March 2007. The Tribunal stated this “is different to allegedly being told to stop studying”[36].
[36] CB 114.9.
While the Tribunal was not bound by the PAM 3 guidelines it could and did have regard to them. The Tribunal appeared to accept the guidance in PAM 3 that a compelling circumstance affecting the interest of Australia includes the unjust application of an exclusion period as a consequence of Departmental error. While the Tribunal accepted [at 30] that it was plausible that the applicant had been given misleading advice by the Minister’s Department it found at [31] that the evidence before it did not suggest a Departmental error resulting in the application of the exclusion period.
However, despite finding that the applicant had been misled, the Tribunal was unwilling to find a link between the application of the exclusion period and a Departmental error[37].
[37] CB 114.9.
The Tribunal again found that it was the applicant’s choice to stop studying and she knew that poor attendance could constitute a breach of a visa condition.
The Tribunal then recorded its concerns about the applicant’s decision to stop going to classes because she had lodged a visa application as a member of a family unit. The Tribunal stated this “raises doubts about her being a genuine student”[38].
[38] CB 115.3.
The Tribunal ultimately concluded that it was not satisfied that there existed compelling or compassionate circumstances to justify granting the visa.[39]
[39] CB 115.4.
In my view, the exercise of discretion by the Tribunal miscarried because the Tribunal asked itself the wrong question. Having accepted, as the Tribunal appears to have done at [30] of its reasons, that the applicant had been misled by incorrect Departmental advice, the Tribunal needed to consider whether that erroneous advice constituted a compelling circumstance. In considering the PAM 3 guidelines, the Tribunal limited itself at [31] to considering whether the applicant was told to stop studying. She was not. But, as appears to have been accepted by the Tribunal, the applicant was advised that she might stop studying without adverse consequences and, later, that she had a range of options open to her which did not include challenging the cancellation of her visa in consequence of her having stopped studying. The proper inquiry to be undertaken, in my view, which the Tribunal did not undertake, was whether it was a compelling circumstance affecting the interests of Australia to remedy the loss or damage suffered by the applicant as a consequence of relying upon incorrect advice from the Minister’s Department.
The provision of incorrect advice by a Commonwealth officer that is relied upon by the recipient may expose the Commonwealth to legal liability where the reliance results in loss or damage. Liability will arise where:
a)a duty to exercise reasonable care in giving the advice exists;
b)there has been a breach of that duty (negligence); and
c)the recipient of the advice has suffered reasonably foreseeable and proximate loss as a result of relying on the advice.[40]
[40] L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1980-81) 150 CLR 225
A duty of care under the common law may not arise where an exercise of statutory power is subject to a right of review[41]. That, however, only underscores the importance of addressing squarely any claim of negligence in the review process. If a duty of care is excluded under the general law by the review process, that process then becomes the only vehicle whereby the consequences of negligence may be remedied.
[41] Jones v Department of Employment (1989) 1 QB 1 applied by McKerracher J in Pickering v Centrelink [2008] FCA 561
The Tribunal should have considered whether the Minister’s Department had committed a civil wrong by giving negligent advice to the applicant and, if so, whether it was a compelling circumstance affecting the interests of Australia to remedy that wrong. It was not to the point that it was the applicant’s responsibility to ensure compliance with her visa conditions. If, as appears, she acted in accordance with advice from the Minister’s Department as to the consequences of her ceasing studying, and about her options when those consequences manifested themselves, the issue became not the applicant’s obligations but the question of her reliance upon the advice she was given. Another way of looking at the issue is that the question before the Tribunal was not what the applicant’s choice was but how that choice was affected by the incorrect advice.
It was plainly relevant to the inquiry being undertaken by the Tribunal to have regard to the applicant’s conduct and the reasons for that conduct. At [32] the Tribunal states that the evidence before it suggests that the applicant decided to stop studying because it would appear that she was considering other courses/options. That would be consistent with a finding that the applicant did not rely upon the advice she was given. However, that statement is inconsistent with the Tribunal’s acceptance that it was plausible that the applicant had been misled by advice from the Minister’s Department. In my view, by not directing its attention clearly to the real question to be answered, the Tribunal fell into jurisdictional error[42].
[42] Minister for Immigration v Yusuf [2001] 206 CLR 323
I find that the Tribunal’s decision is vitiated by jurisdictional error. Accordingly, the applicant is entitled to relief in the form of the constitutional writs of certiorari and mandamus. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 September 2009
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