Asif v Minister for Immigration
[2011] FMCA 147
•16 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ASIF v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 147 |
| MIGRATION – Application for a judicial review of a decision of the Migration Review Tribunal – whether ‘exceptional circumstances’ beyond the visa holder’s control for non-compliance with condition of student visa. |
| Migration Act 1958 (Cth), s.116(1) Migration Regulations 1994 (Cth), regulation 2.43(2)(b)(ii) |
| Applicant N 403 of 2000 v Minister for Immigration and Multicultural Affairs [2000] FCA 1088 Indatissa v Minister for Immigration and Multicultural Affairs [2000] FCA 1119 Leung v The Minister for Immigration and Citizenship (2010) 114 ALD 255 Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 |
| Applicant: | MUHAMMAD ASIF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1300 of 2010 |
| Judgment of: | Whelan FM |
| Hearing date: | 1 February 2011 |
| Date of Last Submission: | 1 February 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 16 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | Da Gama Pereira & Associates Pty Ltd |
| Counsel for the Respondents: | Ms Symons |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1300 of 2010
| MUHAMMAD ASIF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Mr Asif for orders quashing the decision of the Migration Review Tribunal (“the Tribunal”) of 20 August 2010 and compelling the Tribunal to consider and determine his application according to law.
The Applicant is a Pakistani citizen. He arrived in Australia on 1 March 2006. On 3 July 2008, he was granted a Subclass 573 Higher Education Sector visa. His visa was subject to condition 8202. Sub-condition 8202(2) imposes an obligation on the visa holder to maintain enrolment in a registered course. In January 2009, he commenced a Bachelor of Commerce (Accounting) at the University of Ballarat (“the University”).
In August 2009, the University notified the Department that the Applicant had ceased to be enrolled in a registered course with the University. On 19 November 2000, he was sent a letter by the Department notifying him that his visa may be cancelled under s.116(1)(b) of the Migration Act 1958 (Cth) (“the Act”) and inviting him to an interview on 7 December 2009. He did not attend that interview as he had changed addresses and on 21 January 2010 his visa was cancelled.
On 4 February 2010, Mr Asif applied for a review of that decision by the Migration Review Tribunal. He was invited to attend a hearing by the Tribunal on 19 April 2010. In a written statement provided to the Tribunal the Applicant stated:
In March 2009, University of Ballarat offered me one and half year exemption for Bachelor of Accounting course.
I enrolled in the March 2009 semester at MIT (University of Ballarat).
At this point I realized that I have got a 1 year extra visa and I can defer the July 2009 semester and go back home as I was getting home sick and haven’t been back home since 2006.
I went to the enrolment staff at my University and she said to me that I can defer the semester, but I will have to go back home to Pakistan.
I discussed the situation with my parents and my parents didn’t encourage me to come to Pakistan because of the political unrest and continuous suicidal bombings in my city Lahore.
By that time, the date for enrolling in the semester had already passed and I planned to take the next available semester.[1]
[1] Court Book at page 63.
On 6 May 2010, the Tribunal wrote to the Applicant in relation to a number of matters which had arisen in the course of the conduct of the review. In a written response dated 24 May 2010, his representative addressed the issue of the application of s.116(1)(b) of the Act and regulation 2.43(2)(b)(ii)(B) of the Migration Regulations 1994 (Cth). The facts relied upon in the submission in relation to ‘exceptional circumstances’ were stated to be as follows:
The Applicant at the hearing advised the Tribunal that he intended to differ (sic) the semester to return to his home country in Pakistan. He was granted an exemption of 12 units because of his successfully completing a Diploma in Accounting at KBIT. He had 12 units to complete and his visa was valid for another 2 years. He approached the University and discussed this with Sushma Gurung from the University. He had decided to defer the semester and return home to Pakistan for 6 months. This is common practice by most international students. However, because of the political unrest in Pakistan he was advised by his parents not to travel. Had he travelled to Pakistan, he would not have been in breach of his visa condition. As he could not travel to Pakistan he decided to re-enrol but was not allowed to do so, by the University (because the cut off date for enrolment had passed). Had he enrolled he would not have been reported to DIAC and his visa would not have been cancelled.[2]
[2] Court Book at page 155.
There were a number of exchanges between the Tribunal and the Applicant’s representative concerning matters, which are not the subject of this application, prior to the Tribunal issuing its decision affirming the decision under review on 20 August 2010. On 20 September 2010, the Applicant lodged this application with the Court.
Submissions
The Applicant raises two issues. First, he submits that the Tribunal was in error because it failed to approach the question of determining if the Applicant’s non-compliance with the prescribed conditions was not due to exceptional circumstances beyond the visa holder’s control in the correct way.
By reference to the decision in Leung v The Minister for Immigration and Citizenship[3], the Applicant submits that the logical approach is a three-step process. First, the Tribunal determines if the circumstances are exceptional. Second, a finding needs to be made that those exceptional circumstances were the reason why the visa holder failed to comply with condition 8202. Finally, once those findings are made, the Tribunal can address the question of whether the circumstances were beyond the Applicant’s control.
[3] Leung v The Minister for Immigration and Citizenship (2010) 114 ALD 255.
The Applicant referred to the material before the Tribunal relied upon by the Applicant, the Tribunal’s findings in relation to that material and the decision in Leung.[4]
[4] Ibid.
The Applicant submits that the Tribunal found that the unstable circumstances in Pakistan were an exceptional circumstance. Having found that, it should have determined whether the unstable circumstances in Pakistan were a cause of the breach and finally, having taken that step, the Tribunal needed to consider whether the circumstances that caused the breach were not beyond the Applicant’s control.
The Applicant submits that the error occurs in steps 2 and 3. The Tribunal, he says, found that the causal chain between the unstable circumstances in Pakistan and the breach, being the failure to enrol in the course, was broken by the Applicant’s failure to seek a deferral or to re-enrol. The Tribunal confused the question of causation with one of control.
It was submitted that the ordinary principles of causation apply.[5] Applying causation principles appropriately in this case required the Tribunal to consider whether the unrest in Pakistan was a cause of the breach, the breach being the failure to remain enrolled.
[5] Applicant N 403 of 2000 v Minister for Immigration and Multicultural Affairs [2000] FCA 1088; and Indatissa v Minister for Immigration and Multicultural Affairs [2000] FCA 1119.
By reference to paragraph 85 of the Tribunal’s decision,[6] the Applicant submits that the Tribunal has missed a step in the process and jumped to the question of control. In finding that the warnings of the Applicant’s family would not have paralysed the Applicant’s decision making process to the extent claimed, the Tribunal does not reveal that it is satisfied that there was no impact of the exceptional circumstances on the breach. Either the approach to causation is wrong or steps two and three have been conflated erroneously. The Tribunal has failed to reach the required level of satisfaction before a visa can be cancelled.[7]
[6] Court Book at page 327.
[7] Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235.
The second issue raised by the Applicant was the findings of the Tribunal concerning the ongoing nature of the breach. The Tribunal found that the Applicant:
ceased to be enrolled in a registered course from 21 July 2009, was not enrolled in a registered course since that date and as a result breached the condition 8202(2)(a).[8]
[8] Court Book, page 325 at paragraph 77.
The Applicant submits that it appears that the Tribunal considered the breach to be an ongoing one continuing through to the date of the Tribunal’s decision. It further appears that the Tribunal took into account the Applicant’s inaction after the cut-off date for re-enrolment without making any findings about whether he could have re-enrolled at all during that period. In this respect, the Tribunal has failed to complete its inquiry.
The Respondent submits, with respect to the Applicant’s first contention, that the claim the Applicant made to the Tribunal in putting his case for exceptional circumstances comprised a number of elements, the first being his decision to visit Pakistan, the second being his inquiry about deferral, the third being the information that the situation in Pakistan was poor and he should not return and the final part being that the effect of this was that he became confused and indecisive, the consequence of which was his failure to do anything about his enrolment.
That is the claim put to the Tribunal and which the Tribunal understood. The claimed exceptional circumstances comprise those various elements taken collectively. Civil unrest in Pakistan, taken of itself, could not have any operative relationship to the visa breach. All of the elements were necessary to make the case.
The Respondent submits that the Tribunal identified what the Applicant claimed the exceptional circumstances were.
The Tribunal made a finding that the civil unrest did constitute an exceptional circumstance but at that point had not yet gone on to consider whether, in fact, the entire circumstances either existed or constituted exceptional circumstances. It goes on to do that at paragraph 85 of its decision.[9]
[9] Court Book at page 327.
The Respondent submits that while the Tribunal accepted that the civil unrest constituted an exceptional circumstance, it did not accept that the civil unrest had the impact on the Applicant which he claimed. The Respondent submits that, taking a commonsense approach, what the Tribunal did was to accept that part of the circumstances which were claimed were exceptional but rejected that part of the claim which had the most work to do. It is very difficult to see circumstances where the civil unrest, in itself, could give rise to a visa breach and that was not the claim made by the Applicant. The claim is set out at paragraph 26 and the Applicant does not appear to quarrel with that.[10]
[10] Court Book at page 302.
As a necessary consequence of its finding, on the Respondent’s submission, the Tribunal found that there was not the relevant operative causative effect on the Applicant which resulted in the visa breach.
What the Tribunal has then done is to turn its mind to what could have been an alternative cause for the visa breach and that is where the question of control is addressed by the Tribunal. It determined that the reason for the breach was, in effect, a failure by the Applicant to take responsibility to either re-enrol or make an application for a deferral – both of which were within his control.
On the Respondent’s submission, to separate out the reasoning process in the manner contended for by the Applicant is a little unrealistic and not reflective of what the job of the Tribunal entails.
With respect to the question of whether the Tribunal took into account matters outside of the relevant time frame, the Respondent submitted that the passages referred to by the Applicant form part of the Tribunal’s summary of the hearing rather than part of its conclusion. As they did not make their way into the findings, it may be concluded that they did not inform the decision ultimately made by the Tribunal. In making that decision, it concentrated on the relatively short period of time from when the Applicant could have acted until he was no longer enrolled. The exceptional circumstances argument made by the Applicant centred around those dates.
If that argument is accepted, the argument that the Tribunal failed to complete its inquiry falls away.
Conclusions
Section 116(1) of the Act empowers the Minister to cancel a visa if he or she is satisfied that “(b) its holder has not complied with a condition of the visa”.[11]
[11] Migration Act 1958 (Cth).
This power is subject to ss.(2) and (3) which state:
(2)The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.
(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.[12]
[12] Ibid.
In this case, regulation 2.43(2)(b)(ii) applies. It requires, that the circumstances in which the Minister must cancel a visa, in the case of a holder of a temporary student visa include:
(ii) That the Minister is satisfied that:
(A)the visa holder has not complied with condition 8202; and
(B)the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.[13]
[13] Migration Regulations 1994 (Cth).
The Tribunal’s findings and conclusions on this issue appear at paragraphs 79 to 86 of the Statement of Decision and Reasons:
The circumstances relied on by the review applicant as exceptional
79. The review applicant told the Tribunal that after his exams in July 2009 he had about two weeks break before the start of the second semester. He decided to visit his family in Pakistan. He had not seen them for about two years and wanted to visit. He was not interested in a quick visit of a few days between semesters so the visit would have entailed obtaining a deferral from the second semester of the course. He planned to visit Pakistan for the whole of the period in which the second semester would be taught. He telephoned the University’s enrolment officer, Sushma Gurung on 23 July 2009. Ms Gurung advised him that he could go back to Pakistan but he would have to defer and then attend the course for the next semester (commencing March 2010). He stated that he telephoned his parents who advised him that it was not a good time to visit as there had been suicide bombings in his hometown. He was not sure what to do and, in this state of confusion, missed the cut off for re-enrolment (26 July 2009) for the second semester of 2009.
Did these circumstances occur?
80. As indicated above, the Tribunal does not accept that the review applicant discussed deferral with the education provider. It follows that the Tribunal finds that the review applicant’s claim that he did so, was false. This diminishes his credibility in relation to his other claims including his evidence in relation to the circumstances he relies on as “exceptional circumstances”. The Tribunal nevertheless accepts as plausible that the review applicant was homesick and wished to return to visit his family in Pakistan. The Tribunal is also prepared to accept the possibility (and so proceeds on the basis that) he was told that the situation is his home town in Pakistan was unstable and, in the process of deliberating whether or not to go, missed the deadline for re-enrolment in breach of condition 8202(2)(a).
Were the circumstance found by the Tribunal to have occurred “exceptional”?
81. The term ‘exceptional circumstances’ is not defined in the legislation. In assessing whether the circumstances found by the Tribal to have existed constituted “exceptional circumstance” the Tribunal has had regard to a number of cases including: Chen v MIMIA [2005] FCA 229 in which Lander J at [111], in considering the operation of s.137, stated that ‘any circumstances that are exceptional, in the sense that they are unusual and not of the applicant’s own making, but beyond the applicant’s control, may provide a reason for the Minister revoking the cancellation’ and Wang v MIMIA [2005] FMCA 918 in which Walters FM, also considered the meaning of ‘exceptional circumstances’ and referred with approval to the comments of Kiefel J in Hatcher v Cohn [2004] FCA 1548. Kiefel J at [49] stated that “[e]xceptional’ circumstances, in general terms, are those circumstances, which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances . . . The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless their application appears from the relevant statutory provision’. The Tribunal has also had regard to Direction No. 38, Guidelines for considering cancellation of student visas for non-compliance, pursuant to s.499 of the Act (Attachment D). This document states that a decision maker should have regard to circumstances such as natural disasters, political upheaval, whether any errors and/or inappropriate actions or omissions by the education provider occurred in the process leading to non compliance and reporting of the non-compliance and “must consider all of the facts of the case in total”.
82. As indicated above, the Tribunal has found that the circumstances existing prior to the breach were that the review applicant wished to visit his family, contacted his family and was advised by them that the situation was unstable in his home town in Pakistan. The review applicant experienced indecision about whether to visit his family or re-enrol in his course and, in the confusion, missed the deadline for re-enrolment.
83. Whilst the Tribunal considers that the unfortunate reality is that the direction in Direction No. 38 that political instability and civil unrest should be regarded as exceptional is perhaps less tenable today than it may have been in the past, it nevertheless is prepared to follow that direction and find that the civil unrest in the review applicant’s home town constituted an exceptional circumstance.
Were the exceptional circumstances beyond the review applicant’s control?
84. The civil unrest was beyond the review applicant’s control. However, as explained below the Tribunal does not consider that the civil unrest was the causal factor behind the breach and does not consider that the causal factors behind the breach were beyond the review applicant’s control.
Was the breach not due to the exceptional circumstances?
85. The causal chain between the political instability and civil unrest and the review applicant’s breach (failure to maintain his enrolment in a registered course either as a participating student or a deferred student) was broken by his failure to either seek a deferral or re-enrol in his course. He attributes that failure to indecision, confusion and forgetfulness. Those intervening causal factors are unexceptional and were not beyond the review applicant’s control. The Tribunal does not accept that his family’s warnings about civil unrest in his home town would have paralysed the review applicant’s decision making process to the extent claimed and considers that it would have been within his control rather than beyond his control to have diarised the deadline for re-enrolment or made an application for deferral and thereby avoid breaching sub-condition 8202(2). In that sense his breach of sub-condition 8202(2) arose as a result of his failure to take responsibility for his enrolment status rather than external events in Pakistan.
86. The Tribunal considered all of the circumstances presented by the review applicant and the Tribunal finds that the review applicant’s breach of sub-condition 8202(2) was due to indecision, confusion and forgetfulness and not due to exceptional circumstances. The Tribunal notes in passing that, even if it considered that his indecision, confusion and forgetfulness constituted exceptional circumstances it would not have found that they were beyond his control”.[14]
[14] Court Book at pages 325-327.
It appears that the Tribunal understood the Applicant’s case to be that all of the factors which he relied upon to constitute ‘exceptional circumstances’ are those contained in paragraph 79. This appears to be a logical conclusion both from the way it is set out in the decision and the reality that it could only be a combination of those factors which could constitute the circumstances under which he failed to re-enrol or defer his course. If the Applicant did not wish to return to Pakistan to visit his family then the civil unrest there would not, in itself, cause him to be indecisive about re-enrolling or deferring his course.
The political unrest in Pakistan is conceded by the Tribunal to constitute an exceptional circumstance but this on its own does not constitute the Applicant’s case. It was not presented as such by the Applicant nor treated as such by the Tribunal.
While paragraph 85 may not be expressed in terms of the step by step approach advocated by the Applicant, it appears clear that the Tribunal did not accept the validity of the combination of circumstances relied upon by the Applicant. In particular, it did not accept that the Applicant discussed deferral with the education provider. Further, it did not accept that the warning by his family that he should not return to Pakistan would have paralysed his decision making capacity to such an extent that he was unable to take action to either re-enrol or defer his course of studies. It appears clear that the Tribunal did not accept all of the matters relied upon by the Applicant as constituting ‘exceptional circumstances’, nor did it accept, therefore, that those circumstances, looked at collectively were the cause of his failure to comply with condition 8202. Further, it did not accept that the actual cause of his failure to comply with condition 8202 was beyond his control.
The Tribunal found that the failure to comply with the condition was the Applicant’s failure to take responsibility for his enrolment status and not the combination of circumstances which he relied upon to constitute ‘exceptional circumstances’.
While the Tribunal might have expressed its conclusions in another way to more clearly set out the train of its reasoning, I am satisfied that it did not make an error in its approach to determining the issue.
On the issue of whether the Tribunal took into consideration matters outside of the relevant time period, I again refer to paragraph 79 of the Tribunal’s decision and the matters relied upon by the Applicant.[15] The Applicant’s last day of semester one, according to the University, was 10 July 2009. The second semester commenced on 21 July 2009 and the Applicant had until 26 July to either re-enrol or defer. The Applicant ceased to be enrolled in a registered course on 21 July 2009. He then took no action to either defer or re-enrol before the cut off date on 26 July 2009.
[15] Court Book at page 325.
The Applicant’s actions after that date are not referred to by the Tribunal in its findings concerning whether the breach of condition 8202(a) was not due to exceptional circumstances beyond his control. The breach was established by 26 July 2009 and I am satisfied that in reaching its conclusions, the Tribunal did not rely on matters after this date.
For these reasons I am satisfied that the application in this matter should be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 16 March 2011
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