Gill v Minister for Immigration

[2013] FCCA 1767

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1767

Catchwords:
MIGRATION – Application for adjournment refused – non-compliance with visa conditions not due to exceptional circumstances beyond the Applicant’s control – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 140

Migration Regulations 1994 (Cth), reg.2.43

Hatcher v Cohn (2004) 139 FCR 425

Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

First Applicant: GURWINDER KAUR GILL

Second Applicant: SUKHDEEP SINGH BRAR

Third Applicant: HARNEET KAUR BRAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 642 of 2013

Judgment of: Judge Whelan

Hearing date: 23 October 2013

Date of Last Submission: 23 October 2013

Delivered at: Melbourne

Delivered on: 23 October 2013

REPRESENTATION

Counsel for the Applicants: First Applicant appearing in person

Counsel for the First Respondent: Mr McDermott

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The name of the First Respondent be amended to ‘Minister for Immigration and Border Protection’.

2. The Application made by the Applicant for an adjournment of these proceedings be dismissed.

3. The Application filed by the Applicant on 10 May 2013 be dismissed.

4. The Applicant pay the First Respondent’s costs fixed in the sum of $4,460.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 642 of 2013

GURWINDER KAUR GILL

First Applicant

SUKHDEEP SINGH BRAR

Second Applicant

HARNEET KAUR BRAR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Application for adjournment

1. Although it was not put in any formal way before the Court prior to the hearing, I accept that an oral application for adjournment has appropriately been made at this point in the proceedings.

   
   

   It would appear that both the Court and the First Respondent were given some minimal notice that the First Applicant,

   
   

   Ms GURWINDER KAUR GILL (“the Applicant”), had intended to seek that the matter be adjourned and had produced to the Court, and also to the First Respondent, a medical certificate.[1]

   [1] Affidavit of Christopher McDermott affirmed 23 October 2013, at Annexure ‘CMM-3’.

2. The application in this matter was lodged with the Court in May 2013. The matter was the subject of a directions hearing before a Registrar and there were directions made for certain documents to be filed and served. The Applicant has not complied with those requirements.

   
   

   The Applicant seeks the adjournment today on the basis that she is suffering from back pain. The medical certificate that was produced in support of the application was dated yesterday, 22 October 2013, which is apparently when the Applicant attended upon Dr IMRAAN ANSARI

   
   

   (“Dr Ansari”).

3. It appears that the Applicant notified Dr Ansari that she had had a fall, and on the basis of that information – and it is not clear what examination was conducted – Dr Ansari gave her a medical certificate which states that, from 22 October to 27 October 2013 inclusive, the Applicant is unable to attend work, school or any appointments.

   
   

   The medical certificate does not specifically address the issue of the Applicant’s capacity to attend court and participate in proceedings.

4. The Applicant was offered the alternative of appearing by telephone in these proceedings, but declined that invitation. The solicitor who has carriage of this matter with the Australian Government Solicitor,

   
   

   Mr CHRISTOPHER MCDERMOTT (“Mr McDermott”), has also affirmed an affidavit in these proceedings.[2] According to his affidavit, Mr McDermott indicated that the Applicant, on 21 October 2013, had sent him an email which reads as follows:

   I am so sorry disturbing you again, my hearing date is 23rd of oct ,wednesday (sic). if (sic) in case i have any emergencyon (sic) that may occur what is the procedure ,do i get another hearing date or something else can be done. could (sic) you please email me for this . Thank you for helping me alot (sic).[3]

   [2] Ibid.

   [3] Ibid, at Annexure ‘CMM-1’.

5. In response to that email, Mr McDermott telephoned the Applicant the following morning and states in paragraph 3 of his affidavit:

   The Applicant stated words to the effect that she wanted the contact details for the Court in case she needed it if there was an emergency. I asked the Applicant to explain to me what she meant by an emergency. She explained that she meant if she was called into work or if a problem arose or if she was sick. I explained to the Applicant that the Minister would not agree to any adjournment without an adequate explanation and a good reason. I also explained that if the Applicant did not attend the hearing and did not provide an adequate explanation, the Minister would seek to dismiss her application with costs.[4]

   [4] Affidavit of Christopher McDermott affirmed 23 October 2013, p.2 at para.3.

6. The paragraph then goes on to deal with other matters and

   
   

   Mr McDermott notes:

   At no point during my conversation did the Applicant indicate that she intended to seek an adjournment or that she would not be in attendance at the hearing on 23 October 2013.[5]

   [5] Ibid.

7. I also note that, as at 9.45 a.m. on 22 October 2013, the Applicant did not inform the First Respondent that she was suffering from back pain and intending to attend upon a medical practitioner for the purpose of obtaining a certificate.

8. On the basis of the material that is before me, I am not satisfied that it is appropriate to grant an adjournment in this matter. I am not satisfied, on the basis of the medical certificate that has been provided, that there are sufficient grounds on which I should adjourn these proceedings today.

Application for review

1. This is an application for judicial review of a decision of the

   
   

   Migration Review Tribunal (“the Tribunal”) which was made on

   
   

   9 April 2013. The Tribunal affirmed a decision of a delegate of the Minister, which had been made on 30 December 2011, to cancel the Applicant’s Subclass 573 Higher Education Sector visa. The Tribunal also determined that it had no jurisdiction to make a decision in relation to the Second and Third Applicants, Mr SUKHDEEP SINGH BRAR and Miss HARNEET KAUR BRAR (“the Second and

   
   

   Third Applicants”). The Applicant now seeks an order that the decision of the Tribunal be quashed.

Background

1. On 21 April 2008, the Applicant was granted a student visa, valid to

   
   

   30 August 2010. On 19 October 2010, the Applicant was granted the visa which is the subject of these proceedings. The Second and Third Applicants were granted visas conditional on the continuation of the Applicant’s visa. On 28 November 2011, the Applicant was given notice of the Minister’s intention to consider cancellation of her visa under s.116 of the Migration Act 1958 (Cth) (“the Act”).

2. The basis of this intention was that the Applicant, potentially, had not complied with condition 8202(2)(A) of her visa. Condition 8202(2)(A) required the Applicant to maintain enrolment in a registered course.

   
   

   The University of Ballarat (“the University”) had certified that the Applicant had had her academic enrolment cancelled on 29 April 2011, and that her last day of study was on 31 December 2010.

   
   

   On 30 December 2011, a delegate of the Minister cancelled the Applicant’s visa and on 9 January 2012, the Applicant applied to the Tribunal for a review of that decision.

3. On 5 March 2013, the Applicant and the Second Applicant appeared at a hearing before the Tribunal and, as previously indicated, on

   
   

   9 April 2013, the Tribunal affirmed the delegate of the Minister’s decision.

The Tribunal’s decision

1. The Tribunal had regard to the Applicant’s submission as to why there were exceptional circumstances beyond her control leading to her

   
   

   non-compliance with condition 8202. The Applicant produced certain written material in support of her case. This included:

   ·A birth certificate for the Third Applicant;[6]

   ·

   Correspondence from Dr Ansari dated 5 December 2011 advising that the Applicant was unable to attend University during

   
   

   March and October 2011;[7]

   ·Correspondence from the Kalra Hospital in India advising that the Applicant needed bed rest for one month, ending on 8 March 2011, and for her travel to be restricted for the rest of her pregnancy;[8] and

   ·A written submission explaining her circumstances.[9]

   [6] Court Book filed 22 August 2013, at p.24.

   [7] Court Book filed 22 August 2013, at p.23.

   [8] Ibid, at p.77.

   [9] Ibid, at pp.85-87.

2. The Tribunal also had regard to the Applicant’s oral evidence at the hearing. The Tribunal noted the Applicant did not dispute that she had not complied with the relevant condition of her visa, and found that the Applicant had not met the condition, as she was not enrolled in a registered course. The Tribunal then considered the Applicant’s claim that she could not attend her course due to complications arising from her pregnancy, including the difficulty she experienced in travelling between Melbourne and Ballarat.

3. The Tribunal concluded the Applicant did not give a satisfactory explanation as to why she did not either move closer to the University, or change to an education provider in Melbourne. For these reasons, the Tribunal found that the Applicant’s non-compliance with the condition was not due to exceptional circumstances beyond her control, and upheld the decision that the Applicant’s visa should be cancelled.

Grounds of review

1. The application in this matter contained no grounds. However, the affidavit in support states, “My reasons are genuine and compelling”[10] and the Applicant attaches a statement in relation to the reasons why she claims that there were exceptional circumstances in her case.[11]

   
   

   In her oral submissions before the Court today, the Applicant relied on the fact that:

   ·She was advised by the University that she could enrol for 2012;

   ·She had a confirmation of enrolment for 2012;

   ·She wanted to study in Australia and make her future here; and

   ·She wished to obtain a visa in order to complete her course.

   [10] Affidavit of Gurwinder Kaur Gill affirmed 10 May 2013, at p.1.

   [11] Ibid, at pp.3-4.

The First Respondent’s submissions

1. The First Respondent, in submissions, went to the relevant case law in relation to the application of the term ‘exceptional circumstances’ as it appears in Reg.2.43 of the Migration Regulations 1994 (Cth)

   
   

   (“the Regulations”), and cited a number of cases in which that term has been considered by the Court. The First Respondent notes that the term ‘exceptional circumstances’ is not defined in the Regulations, but has been referred to in a number of cases and, in particular, those decisions refer to a judgment of Kiefel J in Hatcher v Cohn (2004) 139 FCR 425. In that decision, her Honour said:

   “Exceptional” 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 the limitation appears from the words of the relevant statutory provision.[12]

   [12] Hatcher v Cohn (2004) 139 FCR 425 at 439, para.49-50.

2. The First Respondent submits that the Tribunal correctly identified the application of the term ‘exceptional circumstances’, and how that had been dealt with by the Court, and also correctly identified what the Tribunal was required to do in order to be satisfied that the

   
   

   non-compliance with the visa requirement was not due to exceptional circumstances beyond the visa holder’s control.

3. The First Respondent submits that:

   ·The Tribunal’s findings were findings of fact, which were open to the Tribunal on the material before it;

   ·The findings were not unreasonable, irrational or illogical;[13]

   ·The Tribunal had not identified a wrong issue, asked the wrong question, ignored relevant material or relied on irrelevant material;[14] and

   ·The Tribunal had correctly identified the relevant legal principles in construing the term ‘exceptional circumstances’ and made findings accordingly.

   [13] Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611.

   [14] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

Conclusions

1. The provisions of the Act which we are dealing with in these proceedings today, commence, as was identified by the

   
   

   First Respondent, with s.116 of the Act. That section invests the Minister with a discretionary power to cancel a visa if the Minister is satisfied that the visa holder has not complied with a condition of the visa. The power to cancel a visa under s.116 of the Act does not limit, or otherwise affect, the consequential cancellation of other visas under s.140 of the Act or vice versa. Section 140 of the Act is the provision relevant to the visas that were held by the Second and Third Applicants. It is a deeming provision and it is automatic, so that if the principal visa holder’s visa is cancelled under s.116 of the Act, a visa held by another person by virtue of being a member of the family unit of the visa holder is also cancelled, and if the visa holder is a parent and a child is granted a visa because the parent was granted the visa, then the child’s visa is also cancelled.

2. The relevant Regulation in relation to the matters in this particular case, which provides grounds for cancellation of a visa under s.116 of the Act, is Reg.2.43 of the Regulations. That Regulation provides that, in the case of a student visa holder, as in this matter, the Minister must cancel a visa if the Minister is satisfied that the visa holder has not complied with condition 8202, and the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.

3. The relevant provision, in this case, of condition 8202 is the requirement that the visa holder is enrolled in a registered course.

   
   

   It is not disputed that the Applicant had failed to comply with the provisions of condition 8202(2)(a), in that after 29 April 2011, she was not, during that year, enrolled in a registered course. The Applicant claims that her failure to be enrolled in a registered course was because of exceptional circumstances beyond her control.

4. The Tribunal, at paragraphs [14] to [22] of its decision,[15] addressed the term ‘exceptional circumstances’, and referred to the relevant case law and how it has been applied. In doing so, the Tribunal, in my view, correctly summarised the framework within which it was required to make a decision. The Tribunal went on to summarise the Applicant’s evidence. In essence, the Applicant’s evidence was that she had had difficulties with her pregnancy and that, in particular, she was unable to travel from Melbourne to Ballarat to attend her course.

   [15] Court Book filed 22 August 2013, at pp.93-94.

5. The Tribunal had to consider two issues:

   ·Whether the Applicant’s circumstances were exceptional; and

   ·Whether those circumstances were beyond the Applicant’s control.

6. There is nothing unusual, special or uncommon about pregnancy itself, or for a student to be pregnant during the course of their studies.

   
   

   If there was something exceptional about the Applicant’s pregnancy, there was no medical evidence to support this. The medical evidence before the Tribunal was limited. It indicated that, while in India,

   
   

   the Applicant had been advised to rest for one month, and that time expired on 8 March 2011, and she, in fact, then returned to Australia on 18 March 2011.

7. The only other evidence in relation to the Applicant’s condition was a letter of December 2011 which clearly post-dated the pregnancy and did not refer to any condition existing during the pregnancy other than what the Applicant had told the doctor herself. I also note that, at paragraph [37] of the Tribunal’s decision,[16] when asked if she had any other medical evidence to support difficulty she experienced during the pregnancy, the Applicant replied that she attended the regular medical appointments during the pregnancy but was told that she did not have unusual symptoms.

   [16] Ibid, at p.96.

8. The second issue, which the Tribunal needed to consider, was if the failure to maintain her enrolment in her registered course was due to circumstances which could be said to be beyond the Applicant’s control. The Tribunal considered that there were two options in the Applicant’s circumstances that were within her control. One was to move to Ballarat to reduce her travel time and the other one was to change her enrolment to a course in Melbourne, which would also reduce her travel time.

9. In considering those matters, I am satisfied that the Tribunal correctly addressed the requirement that it be satisfied that the Applicant’s

   
   

   non-compliance with her visa conditions was not due to exceptional circumstances beyond her control. As the cancellation of the Applicant’s visa consequentially triggered the cancellation of the visas of the Second and Third Applicants, by virtue of the operation of s.140 and s.116 of the Act, the cancellation of those visas was not subject to review by the Tribunal or by this Court. For these reasons, the application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 31 October 2013