ISLAM v Minister for Immigration
[2011] FMCA 306
•3 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ISLAM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 306 |
| MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal was obliged to consider the Applicant’s circumstances cumulatively in assessing whether they amounted to exceptional circumstances for the purposes of s.137L(1)(b) of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.137J; 137K; 137L(1)(b), 474; Migration Regulations 1994 (Cth), condition 8202(3)(a) of Schedule 8 Education Services for Overseas Students Act 2000 (Cth), s.20 |
| Maan v Minister for Immigration and Citizenship [2009] 179 FCR 581 R v Kelly [2000] QB 198 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 NABE v Minister for Immigration and Multicultural Affairs (2004) 144 FCR 1 |
| First Applicant: | MANZIBA ISLAM |
| Second Applicant: | ABU S M A KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2681 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 3 May 2011 |
| Date of Last Submission: | 3 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 3 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Mr H Murdoch (Parish Patience Immigration Lawyers) |
| Counsel for the Respondent: | Ms R Graycar |
| Solicitors for the Respondent: | Ms J Ingram (Clayton Utz Lawyers) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2681 of 2010
| MANZIBA ISLAM |
First Applicant
ABU S M A KHAN
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) dated and handed down on 12 November 2010. The Tribunal affirmed a decision of a delegate of the first respondent to not revoke the automatic cancellation of the first applicant’s Student (Class TU) Subclass 573 Higher Education Sector visa under s.137L of the Migration Act 1958 (Cth) (“the Act”) for breach of condition 8202(3)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) (“the Regulations”) of the first applicant’s visa.
The first applicant is a citizen of Bangladesh and was an undergraduate student at Central Queensland University (“the Applicant”). The second named applicant is the spouse of the Applicant, and his claims are completely dependant upon that of the Applicant.
On 27 April 2010, Central Queensland University issued a notice to the Applicant pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”), notifying her that she had breached a condition of her student visa. The notice stated the particulars of her breach as follows:
“Central Queensland University (CQU) on 27 April 2010 has certified you as not achieving satisfactory course progress in relation to Bachelor of Accounting
Paragraph 8202(3)(a) applies to you. Therefore, you have failed to meet the requirements of subclause 8202(3)(a) and have breached condition 8202.”
The notice directed the Applicant to attend the offices of the Department of Immigration Multicultural & Indigenous Affairs ("the Department") for an interview. The notice also stated that the Applicant’s student visa will be automatically cancelled unless she attends an office of the Department within 28 days.
On 26 May 2010, the Applicant’s visa was automatically cancelled pursuant to s.137J of the Act, after she failed to present in person to the Department within 28 days of the date of the notification provided by Central Queensland University. The visa of the second applicant was automatically cancelled under s.140(1) of the Act as a consequence of the cancellation of the Applicant’s visa.
On 6 July 2010, the Applicant lodged a request for revocation of the automatic cancellation of her student visa under s.137K of the Act.
On 30 July 2010, the Delegate decided not to revoke the cancellation under s.137J because it found that the Applicant’s breach of condition 8202 was not due to exceptional circumstances beyond the Applicant’s control, as required by s.137L(1)(b) of the Act.
On 10 August 2010, the Applicant lodged an application to the Tribunal for review of the Delegate’s decision not to revoke the automatic cancellation of a student visa.
On 12 November 2010, the Tribunal affirmed the decision of the Delegate not to revoke the automatic cancellation of a student visa.
On 10 December 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The issue in this case is whether or not the Tribunal was obliged to consider the Applicant’s circumstances cumulatively in assessing whether or not they amounted to exceptional circumstances for the purposes of s.137L(1)(b) of the Act.
The Tribunal’s review and decision
On 10 August 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 27 September 2010, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 25 October 2010 to give oral evidence and present arguments.
On 25 October 2010, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found that the Applicant had not complied with condition 8202(3)(a) of her student visa in that the Applicant’s education provider had certified that the Applicant had not achieved satisfactory course progress; and that such breach was not due to circumstances beyond her control.
The Applicant’s complaints to the Tribunal were similar to those given to the Department, although were expanded to and added upon, before the Tribunal. That is, she suffered a series of events, each of which she contended amounted to exceptional circumstances. They included: the death of a friend 3 years ago; the possibility of illness which did not eventuate; an interstate move; the fact that it was months before she was able to obtain employment following her interstate move; the burden of her class assignments; and. the stress of her studies.
The Tribunal considered each of these complaints and found that none was due to exceptional circumstances beyond the Applicant’s control for the purposes of s.137L(1)(b) of the Act. It is common ground that these findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
The proceeding before this Court
The Applicant was represented before this Court by Mr Karp, of counsel.
At the commencement of the hearing, by consent, leave was granted to the Applicant to file in Court, and rely upon, an Amended Application which identified the following grounds of review:
“The Second Respondent failed to consider an issue actually or constructively before it.
Particulars
(a) Failure to consider:
(i) Whether the applicant’s breach of Condition 8202 was due to the cumulative effect of the circumstances that she described and which were accepted by the Tribunal; and,
(ii)Whether those circumstances were “exceptional circumstances beyond [her] control” within the meaning of section 137L(1)(b) of the Migration Act.”
Section 137L(1)(b) of the Act is as follows:
“Dealing with the application
(1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:
(b) that the breach was due to exceptional circumstances beyond the non‑citizen's control”
(i) Whether the applicant’s breach of Condition 8202 was due to the cumulative effect of the circumstances that she described and which were accepted by the Tribunal
Mr Karp submitted that the cumulative effect of the circumstances relied on by the Applicant was a circumstance itself which the Tribunal was obliged to consider because it arose fairly on the material before it.
In support of that proposition, Mr Karp referred to the Applicant’s letter dated 13 July 2010, lodged in support of her application for revocation of the cancellation of her student visa made pursuant to s.137K of the Act.
Mr Karp submitted that a fair reading of that letter suggested that the Applicant regarded the accumulation of her circumstances as satisfying the requirement in s.137L(1)(b) of the Act that her breach of condition 8202 was due to exceptional circumstances beyond her control.
The Applicant’s letter, dated 13 July 2010, relevantly, stated that the Applicant requested the Department to “reconsider my situation based on the following issues”. The letter then referred to the death 3 years ago of her friend, suspected medical issues in 2009 and her “mental pressure” in living overseas for the purpose of her education. She stated that she had explained her circumstances and given her “genuine intentions clearly and truthfully to the Department with essential evidence”. Her letter went on to state her commitment to completing her studies as the only way to overcome her “past misjudgements, stress, grief, and regret.”
Nowhere in the letter is there a clear statement of reliance by the Applicant on the cumulative effect of the events to which she referred as amounting to exceptional circumstances beyond her control. Even if one was to accept that such an inference was possible, the manner in which her complaints were pressed before the Delegate and the Tribunal, with the assistance of her migration, agent do not suggest that there was any reliance by the Applicant on a complaint that the cumulative effect of her difficulties, whilst they may not be exceptional in themselves, amounted to exceptional circumstances beyond her control.
It was clearly open to the Applicant to raise such a complaint and to submit to the Tribunal that, whilst the Tribunal may find that none of the events to which she had referred were exceptional in themselves, considered cumulatively, they amounted to exceptional circumstances beyond her control for the purposes of s.137L(1)(b) of the Act.
The Tribunal’s decision record makes clear that at no stage was any such submission put to the Tribunal. It is well accepted that a tribunal is required only to consider claims that are expressly made or clearly arise on the materials before it (NABE v Minister for Immigration and Multicultural Affairs (2004) 144 FCR 1 at [61]). No such claim that a further exceptional circumstance being the cumulative effect of the events referred to, was expressly made or clearly arose on the material before the Tribunal.
In the circumstances, there was no obligation on the Tribunal to consider whether the cumulative effect of the events that the Tribunal had found not to be exceptional were capable of amounting to exceptional circumstances, if considered cumulatively.
Accordingly, this ground of complaint is not made out.
(ii) Whether those circumstances were “exceptional circumstances beyond [her] control” within the meaning of section 137L(1)(b) of the Migration Act
Mr Karp submitted that the language of s.137L(1)(b) contemplates a plurality of circumstances which compelled the Tribunal to consider first each circumstance individually and then to consider the circumstances cumulatively in assessing whether they amounted to exceptional circumstances beyond the Applicant’s control.
Mr Karp’s submission amounts to a contention that, because the Applicant relies on more than one exceptional circumstance, s.137L(1)(b) of the Act requires the decision maker to consider the cumulative effect.
Mr Karp’s submission has the effect that, once an applicant relies on more than one circumstance, the decision maker is obliged to consider the further question of whether an accumulation of those circumstances is an exceptional circumstance in itself where no such complaint is made by an applicant.
Mr Karp made no further submission or referred to any authority in support of those propositions and contentions.
Section 137L(1)(b) does not impose, in its terms, on a tribunal an obligation to consider whether cumulatively events relied upon by an applicant as exceptional are capable of being exceptional if considered cumulatively, where each circumstance itself had been found not to be exceptional by themselves.
The assessment of exceptional circumstances is a matter for the Tribunal (see Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581 at 591) (‘Maan”).
In Maan, the Full Court of the Federal Court of Australia noted that the expression “exceptional circumstances” is not defined. Accordingly, those words take on their ordinary meaning referred to in Maan in quoting the comments of Lord Bingham of Cornhill CJ in R v Kelly [2000] QB 198 at 208 as follows:
“We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
It is difficult to see, as the Tribunal found, that any of the events identified by the Applicant were events that are not normally encountered. As stated above, Mr Karp properly concedes that the Tribunal’s findings in respect of the events identified and relied upon by the Applicant as exceptional were capable of being found not to be exceptional for the reasons given by the Tribunal.
Mr Karp’s submission amounts to the existence of a further exceptional circumstance that must be considered by a tribunal under s.137L(1)(b) of the Act. Mr Karp submits that, in this case, the further circumstance is the cumulative effect of the individual circumstances relied upon by the Applicant, irrespective of whether the Applicant made such an express claim. Mr Karp submits that the use of the plural “circumstances” in s.137L(1)(b) of the Act is what imposes that obligation on a decision maker, in this case, the Tribunal.
I do not accept that submission. The consequence of that submission imposes on the decision maker an obligation to consider the possibility of an exceptional circumstance which may not have been raised by an applicant. Such a proposition runs counter to the well accepted principle, referred to earlier in these reasons, that the relevant decision maker is required only to consider claims that are expressly made or clearly arise on the material that is before it (see NABE v Minister for Immigration and Multicultural Affairs (2004) 144 FCR 1 at [61]).
In the circumstances, the Applicant has not identified any jurisdictional error on the part of the Tribunal and her complaints appear to be more about a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Accordingly, this ground is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that: the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 3 May 2011
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