Ashraf v Minister for Immigration & Anor

[2007] FMCA 448

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ASHRAF v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 448

MIGRATION – Migration Review Tribunal – student visa – cancellation – exceptional circumstances – requirement to be satisfied of a negative – tribunal approached regulations as if required to be satisfied of a positive.

Migration Act 1958, ss.166, 137L
Migration Regulations 1994, r.2.43

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Chen v Minister for Immigration and Multicultural Affairs [2005] FCA 229; (2005) 142 FCR 257
Suvaal v Cessnock City Council [2003] HCA 41; (2003) 77 ALJR 1449
Wang v Minister for Immigration and Multicultural Affairs [2005] FMCA 918 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
SZBCE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 697
Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA unrep6786; [1994] 34 ALD 347
Marshood v Minister for Immigration and Multicultural Affairs [2000] FCA 1536

Applicant: FADAD ASHRAF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 1414 of 2006

Judgment of: Riethmuller FM

Hearing date: 26 March 2007

Date of last submission: 26 March 2007

Delivered at: Melbourne

Delivered on: 4 June 2007

REPRESENTATION

Counsel for the Applicant: Ms S.Burchell

Solicitors for the Applicant: Vernon Da Gama & Associates

Counsel for the Respondent: Mr P. Gray

Solicitors for the Respondent: DLA Philips Fox Laywers

ORDERS

1. That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal of 3 October 2006 in matter number 06/0461016.

2. That a writ of mandamus issue requiring the second respondent to hear and determine the applicants' application according to law.

3. The respondent pay the applicant’s costs fixed at $5000.000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 14141 of 2006

FADAD ASHRAF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a male citizen of Pakistan born 9 May 1982.  He arrived in Australia on 10 July 2004, travelling on a subclass 572 student visa.  On 30 August 2004 he was granted a student (temporary) visa (class TU) (subclass 573).  The visa was subject to the course attendance conditions contained in condition 8202. 

2. On 11 April 2006 La Trobe University reported to the department that the applicant's attendance between 10 October 2005 and 17 February 2006 was only 52 per cent, and therefore a possible breach of condition 8202(3)(a).  The applicant attended for an interview on 8 May 2006, following which his visa was cancelled as the delegate found that:

   a)he had failed to fulfil the attendance requirements; and

   b)the delegate did ‘not consider that the reason he had unsatisfactory attendance was due to exceptional circumstances beyond his control.’ 

3. The delegate’s decision was reviewed by the Migration Review Tribunal, which affirmed the delegate’s decision.

4. The relevant grounds of the application are set out in the amended application as follows:

   ‘The Grounds of the Application are:

   1. The decision of the Migration Review Tribunal (“The Tribunal”) was made without jurisdiction or is affected by error of law.

   PARTICULARS

   (a) The Tribunal wrongly construed Regulation 2.43(2)(b)(ii)(B) or alternatively misapplied and/or asked itself the wrong question by not asking itself whether the Applicant’s non-compliance was not due to exceptional circumstances beyond his control.

   (b) The Tribunal wrongly construed the definition of “exceptional circumstances” under regulation 2.43 of the Migration Regulations 1994 or alternatively misapplied that regulation to the facts of this case in determining whether the Applicant’s non compliance was not due to exceptional circumstances beyond his control.

   (c) …

5. The Tribunal member, in considering the application, correctly identified that the power to cancel the visa was contained in s.116.  Importantly, s.116(3) provides:

   116(3)  If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

6. The prescribed circumstances referred to in s.116(3) are set out in reg.2.43, which relevantly provides:

   2.43(2)(b) in the case of a Student (Temporary) (Class TU) visa:

   (i)…

   (ii)     that the Minister is satisfied that:

   (A)     …

   (B)     the non-compliance was not due to exceptional circumstances beyond the visa holder's control.

7. The Tribunal member also identified that the term ‘exceptional circumstances’ is not defined in the Act, but that it is also used in another provision, s.137l (which also deals with student visas).  The Tribunal member referred to two cases dealing with s.137l, Chen v Minister for Immigration and Multicultural Affairs [2005] FCA 229; (2005) 142 FCR 257 and Wang v Minister for Immigration and Multicultural Affairs [2005] FMCA 918.

8. At page 8 of the decision the tribunal member identified:

   The onus of establishing the acts which may lead to cancellation is on the Minister or, on review, the Tribunal.  Although the visa holder must be invited to show that the ground for cancellation does not exist, or if it does, that there is a reason why the visa should not be cancelled, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified: see Zhao v MIMA [2000] FCA 1235 at [25] and [32].

9. The member also referred to Ministerial Guidelines (Migration Series Instruction 382 of 9 July 2003) with respect to exceptional circumstances, saying:

   Although MSI 382 does not refer to cancellation under section 116 of the Act, because regulation2.43 was not amended to include a discretionary element until after the MSI came into effect, it is informative in this case because fo the identical wording of both discretionary clauses:

   Exceptional circumstances beyond the non-citizen’s control

   7.3.4Under policy this is restricted to serious illness, hospitalisation, bereavement of close family members (of either the visa holder or their spouse) or major political upheaval or natural disaster in the home country requiring their emergency travel. 

   7.3.5All claims must be supported by documentary evidence and the onus is on the applicant to satisfy the delegate that the circumstance was beyond their control. 

   7.3.6In the case of medical certificated, the certificate should be signed by a qualified medical professional and clearly show the link between the medical condition and the applicant’s inability or otherwise to meet their course obligations. 

   7.3.7It is not the intention that ‘exceptional circumstances beyond control’ encompasses such things as difficulties in adjusting to living in Australia or academic life, relationship problems, financial difficulties or generally feeling “depressed” about circumstances ie where the depression is not clinically diagnosed by a qualified professional.

10. Importantly, guideline 7.3.5 is not applicable in this case as a result of the wording of s.116 and reg.2.43.

11. The fact that the Tribunal considered the interpretation of the term ‘exceptional circumstances’ as it appears in s.137l is not, of itself, an error.  Rather, this is the usual type of inquiries that a lawyer would make in attempting to find an appropriate meaning to a term such as this when it has appeared in other legislative provisions.

12. Thereafter, the Tribunal member identified the significant factual material before coming to the following conclusions:

    The Tribunal finds that none of these individual circumstances is exceptional in its own right, and that, even taking into account all of these circumstances together, the circumstances are not what the Tribunal would consider to be exceptional.

    The Tribunal is not satisfied on the evidence before it that the review applicant’s breach of condition 8202 in the summer semester ending February 2006 was due to exceptional circumstances beyond his control.  (emphasis added).

13. It is apparent from these conclusions that the Tribunal considered whether or not it was satisfied that the applicant's breach of condition was due to exceptional circumstances beyond his control.  The Act requires the Tribunal to consider whether or not the Minister could be satisfied that the non-compliance was not due to exceptional circumstances beyond the visa holder's control. 

14. In this case it appears that reliance on instruction 7.3.5 has led to the Tribunal member approaching the matter as though the visa applicant bore an onus, rather than in the manner required by s.116 and reg.2.43.

15. To approach the matter on the basis that the applicant bore an onus, rather than the Minister is an error of law.  It is significant as the reversal of an onus can lead to different outcomes.

16. It is well recognized that a court of tribunal is not required to accept one version or another as the correct version.  In Suvaal v Cessnock City Council [2003] HCA 41; (2003) 77 ALJR 1449 the Gleeson CJ and Heydon J said:

    [36]       A trier of fact, confronted with divergent cases being advanced by the parties, may decline to accept either case and may proceed to make findings not exactly representing what either party said.

17. Similarly, in Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at [124] Mahoney JA said:

    Following what was said in Briginshaw v Briginshaw [(1938) 60 CLR 330], I expressed the view in Jones’ case [Jones v Sutherland Shire Council [1979] 2 NSWLR 206] that, in order to choose one possible inference rather than another (I was there referring to the inference as to the ultimate question of fact) it is necessary that the tribunal of fact “feel an actual persuasion of” its existence and that the conviction be based upon reasonable grounds.  It is not enough that the tribunal feel that the chances of one possibility being the fact are 5 per cent and of the other 6 per cent, but be not persuaded as to the existence of either.  There are, as it has been said, some questions to which the only answer is: I do not know.

18. In migration cases it is accepted that the tribunal is not required to make a particular finding of fact even if there is no evidence to rebut it see: SZBCE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 697 at [31]; Selvadurai v The Minister for Immigration and Ethnic Affairs [1994] FCA unrep6786; [1994] 34 ALD 347 at 348; Marshood v Minister for Immigration and Multicultural Affairs [2000] FCA 1536 at [13].

19. The difference in the two forms of consideration becomes apparent in cases where the Tribunal is unable to be satisfied that there were exceptional circumstances, but is similarly unable to be satisfied that there were not special circumstances. That is, cases where the Tribunal, on the evidence before it, simply can't be satisfied one way or the other, to the requisite standard, on the material. In those cases the applicant would be successful under s.116 and reg.2.43, as the Minister's consideration would not leave the Minister satisfied that there was not a special circumstance. In cases where the requirement was for the tribunal to be satisfied that a special circumstance existed, the inability of a tribunal to make a finding one way or the other would lead to the applicant failing in the application. Indeed, in cases under s.137l the latter result would occur.

20. In this case the tribunal has only considered whether special circumstances were established, not whether the minister could be satisfied that there were no special circumstances. 

21. I am mindful of the comments of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (particularly at [24]). I have considered whether the earlier comments and findings in the decision establish that the tribunal was of the view that the circumstances were such that the tribunal were effectively satisfied that the breach was not due to a special circumstance. However, in light of the way that the formal finding was expressed together with the reference to the guideline, I am not satisfied that this was simply infelicitous language, nor that the applicant was bound to fail in any event.

22. In the circumstances I am satisfied that the applicant has established that the Tribunal failed to exercise its jurisdiction as it failed to consider the matter in accordance with s.116 and reg.2.43. Therefore, Constitutional writs ought to issue to quash the decision and require the Refugee Review Tribunal to hear and determine the matter according to law.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Deputy Associate: Averil Tan

Date: