JHANDI v Minister for Immigration - [2012] FMCA 364

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JHANDI v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 364

MIGRATION – Review of Migration Review Tribunal – visa – exceptional circumstances beyond the visa holder’s control.

Migration Act 1958 (Cth), s.116(1)(b)
Migration Regulations 1994, r.2.43(2)(b)

Ashraf v Minister for Immigration & Anor [2007] FMCA 448
Asif v Minister for Immigration and Citizenship [2011] FCA 1104
Leung v Minister for Immigration and Citizenship [2010] FCA 268; (2010) 114 ALD 255
Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 9 Leg Rep 2

Applicant:

GURINDER SINGH JHANDI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1417 of 2011

Judgment of:

Riethmuller FM

Hearing date:

21 February 2012

Date of Last Submission:

27 February 2012

Delivered at:

Melbourne

Delivered on:

27 February 2012

REPRESENTATION

Counsel for the Applicant:

Ms Chew

Solicitors for the Applicant:

FCG Legal Pty Ltd

Counsel for the Respondent:

Mr Howard

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application filed on 30 September 2011 be dismissed.
The Applicant pay the First Respondent’s costs fixed at $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1417 of 2011

GURINDER SINGH JHANDI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(as revised from transcript)

This is an application for judicial review of a decision of the Migration Review Tribunal with respect to the cancellation of a class 572 Vocational Education and Training Sector visa, under section 116(1)(b) of the Migration Act. The delegate’s decision to cancel the visa was made on 14 April 2011. The applicant then applied to the Tribunal on 20 April 2011. Following a hearing, the Tribunal made a decision on 14 September 2011 affirming the decision of the delegate. The applicant then applied to this Court on 30 September 2011 for a judicial review of that decision.
The relevant provisions are section 116 of the Migration Act, and clause 2.43(2)(b) of the regulations which are in the following terms:
2.43 [Grounds for cancellation of visa (Act, s 116)]
…
(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 condition 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.
…(emphasis added)
The applicant in this case raises issues with respect to the question of exceptional circumstances, as it appears in regulation 2.43(2)(b)(ii)(B). It is convenient at this point to note the unusual wording of the provision. It requires that the Minister be satisfied that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control. The interpretation of this particular clause has been the subject of previous decisions of this Court, but in particular one by myself in Ashraf v Minister for Immigration & Anor [2007] FMCA 448 (‘Ashraf’). The importance of carefully reading the provision is apparent from the decision in Ashraf, as it determines where the burden will fall if the Tribunal is unclear as to the factual circumstances in the particular case.
In Ashraf, the Tribunal’s decision was overturned as it applied the wrong test determining whether or not it was satisfied that the non-compliance was due to exceptional circumstances rather than not due to exceptional circumstances. The difficulty that arises in this case is that the Tribunal has stated the test in a number of different places throughout the decision, oscillating between the correct test and the incorrect test. At paragraph [9] (only two paragraphs after setting out the words of the regulations) the Tribunal says:
[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 visa holder’s control.
Thereafter, at paragraph [80], the Tribunal again describes the test in incorrect terms saying:
[80] The Tribunal is very aware that the decision to cancel a visa can have serious implications for an applicant’s life plans. It is not a decision to be made without careful examination of information and evidence. In the present case, the Tribunal must consider whether the applicant’s breach of Condition 8202, as evidenced by the s.20 Notice, was due to exceptional circumstances beyond his control. (emphasis added)
However, after considering the factual issues underpinning the application of the test, the Tribunal makes its ultimate findings at paragraph [105] where it says:
[105] For the reasons given above, the Tribunal is satisfied that the applicant complied with condition 8202, and the ground for cancellation in s.116(1)(b) therefore exists. The Tribunal is further satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. In accordance with s.116(3) of the Act such circumstances are prescribed circumstances in which the visa must be cancelled.
The Tribunal ultimately applied the correct test in paragraph [105].
The applicant argues that as a result of the different statements of the test throughout the decision, the Court ought to be satisfied that the Tribunal member erred in the exercise of the jurisdiction, and that the decision should therefore be set aside and the matter remitted to the Tribunal to be determined again. It appears to me that the different statements of the tests in the various paragraphs need to be considered carefully. They are prima facie evidence that the Tribunal misunderstood the test that it was applying, although the fact that it ultimately made its determination on the correct test is clear evidence that the Tribunal did understand the test, and it was applied. In these circumstances, a careful review of the reasoning process of the Tribunal is required in order to ascertain the test that the Tribunal ultimately applied. In this case the exceptional circumstances were said to fall potentially into two categories.
One was the letters sent by the educational institution warning the applicant of his non-attendance which was the basis for the cancellation of the visa, and the other being medical issues that arose with respect to back pain. The Tribunal considered that there was nothing about the provider’s compliance with the National Code of Practice which could reasonably be regarded as an exceptional circumstance, saying at paragraph [103]:
[103] The Tribunal does not accept that there is anything about Ashmark’s compliance with the National Code 2007 in respect of the certification dated 22 September 2010 which could reasonably be regarded as exceptional circumstance beyond the applicant’s control and which led to the certification. (emphasis added)
In a case such as this where it was found (in paragraph [34]) that the applicant had only attended less than 30 per cent of the classes in circumstances where 80 per cent attendance was a condition of the visa, it is difficult to see how the conduct of the educational provider under the National Code could have amounted to an exceptional circumstance. I pause here to note that on reading the decision, it is clear that the significant issue that was actually litigated before the Tribunal was clearly whether or not the applicant had attended on more occasions than that reported by the educational institution.
Considerable reasons are given in that regard, and considerable detail is traversed by the Tribunal. Now, ultimately there is no challenge on judicial reviews in that part of the Tribunal’s finding. I turn then to paragraph [100], the relevant finding with respect to medical issues. Paragraph [100] of the Tribunal decision says:
[100] The applicant has claimed that he suffered from back pain. He said at the hearing that he had it on 20 April 2010, supported by a medical certificate which indicates that he told the doctor he had the condition from that date, and the Tribunal accepts that he may have told the doctor about a similar condition in respect of the period 7 to 27 July 2010. His housemate told the Tribunal that the applicant experienced back pain. The Tribunal accepts that he applicant has experienced this. The Tribunal does not, however, accept that it was the applicant’s back pain which led him to not achieve satisfactory course attendance and notes that the applicant has not directly claimed that it was the reason; he has said he was attending classes even at times when he had a medical certificate. (emphasis added)
It was ultimately agreed at the hearing before me that the only relevant medical certificates would have at most accounted for 16 per cent of the days that the applicant should have been attending, and at best therefore could have brought him up to an explanation for 16 per cent of the days which, if coupled with an attendance for 30 per cent of the days, still left him far short of the required period of attendance at 80 per cent under his visa condition. It is important to note that in giving the reasons in this regard, the Tribunal were dealing with a case where the applicant had said that he actually attended at the institution on days when a medical certificate was produced, even though he had such a certificate. Therefore, there was not squarely a case before the Tribunal with respect to medical evidence being a proper basis for non-attendance, and amounting to an exceptional circumstance. That is apparent from paragraph [100], however, the Tribunal did nonetheless consider this factor.
When one looks at the matter as a whole, the Tribunal could not be said to have misapplied the test in this particular case. On the material before the Tribunal, it seems that the Tribunal could not have found that the non-compliance was ‘not due to exceptional circumstances beyond the visa holder’s control’ in circumstances where, at best, there were medical certificates covering around 16 per cent of the overall attendance dates that the applicant had fallen so far short of the attendance requirements.
In these circumstances, I am ultimately persuaded that the applicant cannot succeed on this ground, and even if I be wrong in that regard, it would be futile to return the matter to the Tribunal, as the applicant would be bound to fail.
I should add that I have also considered the reasons of the Federal Court in Leung v Minister for Immigration and Citizenship [2010] FCA 268; (2010) 114 ALD 255 and Asif v Minister for Immigration and Citizenship [2011] FCA 1104. In Leung v Minister for Immigration and Citizenship [2010] FCA 268; (2010) 114 ALD 255, Lander J helpfully dissects the requirements of the section into three parts that if addressed separately make it far clearer and easier to determine precisely whether or not the provision applies. These are helpfully set out at paragraph [33] in the following terms:
[33] It is necessary to proceed in that logical fashion because each finding informs the issues that follow. A finding needs to be made whether the circumstances are exceptional. Next, a finding needs to be made whether those exceptional circumstances were the reason why the visa holder failed to comply with Condition 8202 and the particular failure. Once those findings are made the MRT can address the final issue, which is whether the non-compliance was due to exceptional circumstances beyond the visa holder’s control in the light of its previous findings of facts.
I note, as Gray J points out in Asif v Minister for Immigration and Citizenship [2011] FCA 1104, that the three elements do not necessarily have to be addressed in the precise order that Lander J suggested in Leung v Minister for Immigration and Citizenship [2010] FCA 268; (2010) 114 ALD 255, as his Honour said at paragraph [35]:
[35] I 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.
On reviewing both authorities, it seems to me that the order of addressing the factors, as suggested by Lander J, is a good suggestion in that it would generally make the task easier for the decision-maker to approach it in that order, but note that as set out by Gray J, that does not necessarily have to occur to avoid jurisdictional error. In this case, the primary factor was considered which is whether or not there were factors that could amount to an exceptional circumstance in the meaning of the provision, and the Tribunal clearly found against that proposition. With that being the case, there was no need to go on to consider the additional elements of the section.
I therefore find that in this regard the Tribunal has not erred in a way that would amount to jurisdictional error. In making my decision, I have had regard also to the comments of the High Court in Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 9 Leg Rep 2 and the need to be careful not to review cases with an overly fine attention to detail attuned for error, but to focus upon the substantive reasoning process that the Tribunal have engaged in, in the context of the facts and the case as put to the Tribunal. In all of the circumstances I must therefore dismiss the application.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date: 2 May 2012