Atta v Minister for Immigration - [2012] FMCA 758

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ATTA v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 758

MIGRATION – MRT decision – cancellation of student visa – failure to achieve attendance requirements – effect of certificate of education provider – whether non‑compliance was due to exceptional circumstances beyond the visa holder’s control – no error of law revealed in Tribunal’s reasoning – application dismissed.

Migration Act 1958 (Cth), ss.116, 116(1)(b), 116(3)
Migration Regulations 1994 (Cth), regs.2.43(2), 2.43(2)(b), 2.43(2)(b)(ii), Sch.8 item 8202

Applicant:

WASIF ATTA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 338 of 2012

Judgment of:

Smith FM

Hearing date:

21 August 2012

Delivered at:

Sydney

Delivered on:

6 September 2012

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr H P T Bevan

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs fixed in the sum of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 338 of 2012

WASIF ATTA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This judgment explains why I have not found grounds for setting aside a decision of the Tribunal, which affirmed the cancellation of Mr Atta’s student visa under s.116 of the Migration Act 1958 (Cth). The visa had been issued on 28 April 2009, and was cancelled on 22 September 2010. The visa was due to expire on 30 August 2012, which has now passed. However, the adverse decision may affect Mr Atta’s eligibility for future visas, and the Minister does not dispute that there is continuing utility in a consideration of the validity of the cancellation decision.
Mr Atta was assisted by a solicitor to file his application for judicial review on 15 February 2012, and the solicitor remained on the record until filing a notice of withdrawal on 10 August 2012, having given notice to Mr Atta of an intention to do this on 3 August 2012. Neither the solicitor nor Mr Atta has filed an amended application or written submissions, although directions allowing these steps were given at the first court date on 15 March 2012, when the matter was listed for hearing on 21 August 2012.
At the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCA 758
Decision Date: 6 September 2012

CaseChat Overview and Summary

In the case of Atta v Minister for Immigration, the applicant, Mr Atta, sought judicial review of a decision by the Migration Review Tribunal to affirm the cancellation of his student visa. The Tribunal had determined that Mr Atta had failed to comply with a condition of his visa, specifically condition 8202, which requires satisfactory attendance at an educational institution. The Tribunal also found that this failure to comply was not due to exceptional circumstances beyond Mr Atta’s control.

The primary legal issue before the court was whether the Tribunal’s decision contained material error of law. Specifically, the court had to consider whether the Tribunal correctly applied the legal test under regulation 2.43(2)(b)(ii) of the Migration Regulations, which requires that non-compliance with a visa condition must not be due to exceptional circumstances beyond the visa holder’s control. The applicant argued that the Tribunal had misapplied the law by not following a specific sequence of steps in making its determination.

The court found that the Tribunal had applied the correct legal principles and reached its decision within its jurisdiction. It noted that the order in which the Tribunal considered the elements of the legal test was a matter for its discretion, and the Tribunal’s decision did not contain any material error of law. The court further held that the Tribunal’s decision to affirm the cancellation of Mr Atta’s visa was correct because it was satisfied that Mr Atta had failed to comply with condition 8202 and that this failure was not due to exceptional circumstances beyond his control.

The application for judicial review was dismissed, and the court ordered that the applicant pay the costs of the first respondent.

Orders

Orders of the court

The application is dismissed.

The applicant must pay the first respondent’s costs fixed in the sum of $6,471.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In a later case, Asif v Minister for Immigration & Citizenship (2011) 197 FCR 235, [2011] FCA 1104, Gray J disagreed: 33In the present case, the Tribunal did all three of those things. First, it summarised the circumstances relied on by the appellant, made its findings as to whether they existed or not and determined that only one of those circumstances was exceptional. That circumstance was the civil unrest in the appellant’s home town in Pakistan. The Tribunal then found that this circumstance was beyond the appellant’s control. It then determined that the sole exceptional circumstance was not a cause of the appellant’s failure to comply with condition 8202, because his failure to re‑enrol was caused by other intervening factors that were within his control. 34The only thing that the Tribunal did not do in the present case was to express its findings in the order suggested by Lander J in Leung. As his Honour put it, the second step should have been a determination as to causation and the third step should have been concerned with control. 35I confess to having difficulty following the reasoning of Lander J in Leung. It is not apparent to me why his Honour considered it necessary to deal with the elements in the order he set out, or how it is that each finding informs the issues that follow. There are three issues for determination. If the Tribunal is not satisfied as to any one of those three issues, the decision‑maker is bound to cancel the visa. On this basis, it would be open to the Tribunal to adopt the course of going directly to the issue of control. If, on the facts of a particular case, the Tribunal determined that none of the circumstances was beyond the control of the visa holder, it would be unnecessary to determine whether any of the circumstances was exceptional, or whether any causal relationship existed between any of the circumstances and the failure to comply with condition 8202. Alternatively, in an appropriate case, the Tribunal might just as well go to the question of causation first, to determine what were the circumstances that caused the failure to comply with condition 8202, before deciding which of those circumstances were beyond the control of the visa holder and then looking at the question whether any of those circumstances was exceptional. In my view, it is not possible to dictate to the Tribunal the order in which it should consider the elements raised by reg 2.43(2)(b)(ii)(B) of the Migration Regulations. The order in which the Tribunal determines those elements will be a matter for it, in the circumstances of the particular case. (emphasis added) Both of these judgments were given in the exercise of the Federal Court’s appellate jurisdiction, and I am bound to apply the most recent opinions of Gray J (see SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487, [2008] FCAFC 91 at [42], and Suh v Minister for Immigration & Citizenship (2009) 175 FCR 515, [2009] FCAFC 42 at [29]). Moreover, the flexibility recognised by Gray J in the application of the composite expression “not due to exceptional circumstances beyond the visa holder’s control” appears to me to accord with the variety of cases in which decision‑makers might be required to apply reg.2.43(2)(b)(ii), and the rolled up manner in which the regulation has been formulated. In my opinion, I am bound to uphold reasoning by a Tribunal which has achieved satisfaction in terms of the regulation by reference to any one or more of the elements in this test, and not to find material error of law because other elements might not have been explicitly and separately addressed in a particular sequence before arriving at that satisfaction.

Ratio Decidendi

Legal Principle Established

Mr Atta enrolled in a 15 week ‘mixed English and Academic program’ at Griffith University lasting from 22 June 2009 until 10 October 2009. He did not attend during the orientation first week, and his actual attendance during the program was calculated by the University under its attendance rules and policies as “67% over 14 weeks” or 76% after taking into account two medical certificates. After being given a series of warning letters and rights of appeal, the University issued a certificate on 2 November 2009 in the following terms: Certification for the purposes of subclause 8202(3) of Schedule 8 of the Migration Regulations 1994 Griffith University (GU [00233E] (trading as Griffith University) on 2 November 2009 certifies Mr Wasif ATTA, for course Mixed English and Academic Program, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007). The statutory notice to which this was attached warned Mr Atta that there would be an automatic cancellation of his visa unless he attended an office of the Department of Immigration to explain his breach of his visa conditions. Mr Atta did this, but on 4 November 2009 he was given notice that the Department might cancel his visa under s.116(1)(b) and (3) of the Migration Act. After receiving his submissions, such a decision was made on 22 September 2010. Mr Atta then sought review by the Tribunal. He explained his poor attendance record at a hearing of the Tribunal held on 24 November 2011, and in subsequent responses to an invitation to comment on information obtained by the Tribunal from the University. The Tribunal then made a decision on 17 January 2012, which affirmed the cancellation. The relevant provisions of the Act and Regulations were accurately recited and explained by the Tribunal at the start of its statement of reasons: RELEVANT LAW 6.Section 116(1)(b) gives the Minister power to cancel a visa where the visa holder has not complied with a condition of the visa. It relevantly states: 116 Power to cancel (1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: … (b) its holder has not complied with a condition of the visa; or … (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. 7.Regulation 2.43 of the Migration Regulations 1994 (the Regulations) sets out the prescribed circumstances referred to in s.116(3). For Student visas which were in force on or after 8 October 2005, r.2.43(2) relevantly provides: 2.43 Grounds for cancellation of visa (Act, s116) … (2)For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are: … (b) in the case of a Student (Temporary) (Class TU) visa: (i)that the Minister is satisfied that the visa holder has not complied with conditions 8104 or 8105 (if the condition applies to the visa); or (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. 8.The effect of s.116(1)(b) and r.2.43(2)(b)(ii) is that the visa must be cancelled if the Tribunal is satisfied the visa holder has not complied with condition 8202, and that the non‑compliance was not due to exceptional circumstances beyond the visa holder’s control. 9.In broad terms, the questions that arise for consideration under r.2.43(2)(b)(ii) are (A) whether the applicant failed to comply with condition 8202; and if so (B) whether the non‑compliance was due to exceptional circumstances beyond the applicant’s control.