Karmaker v Minister for Immigration & Anor
[2011] FMCA 595
•12 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KARMAKER v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 595 |
| MIGRATION – Application to review decision of Migration Review Tribunal – student visa cancellation – whether Tribunal took an irrelevant consideration into account in considering whether the non-compliance with condition 8202 was due to exceptional circumstances beyond the visa holder’s control. |
| Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5 Migration Act 1958 (Cth), ss.48B, 116, 477, 486A Migration Regulations 1994 (Cth), reg.2.43 |
| Baker v the Queen (2004) 223 CLR 513; [2004] HCA 45 Bo Hyung Kim v Minister for Immigration and Citizenship [2009] FCA 161 Hatcher v Cohn (2004) 139 FCR 425; [2004] FCA 1548 Kaur v Minister for Immigration and Citizenship [2010] FMCA 634 Kim v Minister for Immigration and Citizenship [2008] FMCA 1577 Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581; [2009] FCAFC 150 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 85 ALJR 740; [2011] HCA 23 R v Kelly (Edward) [2000] 1 QB 198 VQAN v Minister For Immigration and Multicultural and Ethnic Affairs [2003] FCA 1541 Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918 |
| Applicant: | ARUNAVA KARMAKER |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 525 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 12 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | L.J. Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The time for making the application provided for by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 22 March 2011.
The application is dismissed.
The applicant pay the costs of the first respondent, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 525 of 2011
| ARUNAVA KARMAKER |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for review of a decision of the Migration Review Tribunal dated 28 January 2011 affirming a decision to cancel the applicant's Subclass 572 Vocational Education and Training Sector Student visa.
The application was not filed within 35 days from the date of the migration decision as required by s.477(1) of the Migration Act 1958 (Cth) (the Act). The applicant has sought that the court extend that 35‑day period. Under s.477(2) of the Act the court may by order extend that period as it considers appropriate if an application for such order has been made in writing specifying why the applicant considers it is necessary in the interests of the administration of justice to make such an order and the court is satisfied that it is necessary in the interests of the administration of justice to make such an order.
The Minister formally opposed any extension of time being granted and sought an order that the application be dismissed as incompetent, largely based on what was said to be a lack of merit in the substantive ground relied on in the application.
It is not in dispute that this application was filed some 18 days outside 35 days from the date of the migration decision. The applicant sought an extension of time on the basis that the delay was short, no prejudice was caused to the respondents and the application had reasonable prospects of success. Subsequently the applicant affirmed an affidavit on 5 July 2011 which was filed on 6 July 2011 explaining the reasons for the delay.
The factors relevant to an extension of time under a provision such as s.477 of the Migration Act have been considered in a number of cases.
Counsel for the applicant referred to the recent decision of Hayne J in Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 85 ALJR 740; [2011] HCA 23 in which an application for review of a decision of a delegate of the Minister for Immigration and Citizenship who had refused to grant the plaintiff a protection visa was made 18 months after the decision, not only outside the 35 days fixed in s.486A of the Act for such applications to the High Court, but also well outside the period of six months fixed by the High Court Rules as the time within which an application for certiorari should be made. Section 486A(2) is in similar terms to s.477(2) of the Act. Hayne J noted that in the intervening time the plaintiff had been pursuing other avenues of redress, but the last of those was completed on 15 November 2010, over 12 weeks before the application was filed. His Honour referred to evidence of an attempted suicide by the plaintiff not long after the Minister's decision, her hospitalisation and diagnosis with a psychiatric illness and also to evidence put before the Minister (in the context of a request under s. 48B of the Act to allow her to make a further application for a protection visa) indicating that her psychiatric difficulties had diminished considerably. There was also evidence that the plaintiff had been unable to pay even the reduced filing fee and that ultimately the Asylum Seeker Resource Centre had paid that fee.
His Honour stated that even if allowing 12‑week period after the plaintiff had pursued intervening steps to elapse was to be treated as an unwarranted delay, such a “characterisation would not of itself determine whether it is in the interests of the administration of justice that [the plaintiff] be permitted to prosecute the claim” (at [10]) and that consideration also had to be given to the merits of the case which the plaintiff sought to mount. His Honour found that the delegate had made a jurisdictional error and that it was in the interests in the administration of justice that there be an extension of time. That case indicates that it is relevant to have regard not simply to delay, but also to the merits.
More generally, in considering whether it is “in the interests of the administration of justice” it is relevant to have regard not only to the extent and the reasons for the delay and whether there is any merit in the application, but also to any prejudice to the respondent, the impact on the applicant, the interests of the public at large and the court’s discretion itself (see Kaur v Minister for Immigration and Citizenship [2010] FMCA 634).
There is no suggestion from the respondent that there is any prejudice from an extension of time, particularly having regard to the fact that the case has been fully argued. There is no indication that the respondent would be put to the burden and costs of additional litigation were an extension of time to be granted.
In this case the delay is, in the scale of things, relatively short. The applicant has provided an explanation which I consider is a reasonable explanation. He sought advice from a solicitor after the Tribunal decision quite promptly. He elected to seek advice from counsel, which was given on or around the date on which any application should have been filed in this court. He sought further advice as to how much it would cost to pursue proceedings in this court. Thereupon, having no funds for a review, the applicant sought funds from his parents. After some difficulties funds were transferred to him and he then advised his solicitors to proceed.
In all the circumstances I am satisfied that this evidence, which was not challenged, constitutes a reasonable explanation for the extent of the delay that is in issue.
However this does not necessarily mean that an extension of time should be granted. It is relevant to have regard to all of the circumstances, including the merits of the ground relied on. In VQAN v Minister For Immigration and Multicultural and Ethnic Affairs [2003] FCA 1541 Heerey J suggested that the longer the unexplained delay the stronger the argument on the merits would need to be to grant an extension of time. It would seem logically that the reverse should apply; that is, that there may be circumstances in which it is preferable to grant an extension of time where there is a relatively short explained delay and dismiss an application on its merits rather than simply dismissing it on the basis of refusing the extension of time.
The issue raised by the applicant cannot be said to be such that it is not arguable at all. Although, for reasons which follow, I am not satisfied that a jurisdictional error has been established, I am nonetheless of the view that it is appropriate in this case and in the interests of the public at large, that the extension of time should be granted and the application determined on its merits. I have had regard to the fact that the merits have been fully argued before me. There is no burden on the respondent. There would be no possibility of access to the Federal Court’s appellate jurisdiction were an extension of time not to be granted.
It would not necessarily be appropriate to proceed in this way in all circumstances. However in the particular context of this case, having regard to the nature and extent of the delay and the explanation that was provided, the ground that is raised in these proceedings is such that it ought to be considered on its merits. Accordingly, I intend to extend the period for seeking judicial review of the Tribunal decision as I am satisfied that it is necessary in the interests of the administration of justice to do so.
The ground relied on in the application is that “The Tribunal took an irrelevant consideration into account in its consideration of whether the applicant met the requirements of Migration Regulation 2.43(2)(b)(ii)(B)”. The particulars are:
(a) The Tribunal considered that the applicant’s disappointment at changes to Migration law which meant that he could not qualify for permanent residence on the basis of his qualifications did not come within that paragraph because a student visa is a temporary visa.
(b) This was irrelevant because:
(i)the applicant had, by a change in the law, been deprived of an opportunity to apply for permanent residence, and,
(ii)The question which the Tribunal had to ask itself was not the purpose of the visa held by the applicant, but whether the deprivation of that opportunity was a cause of the applicant’s non compliance with Condition 8202 and whether it was an exceptional circumstance beyond his control.
It is necessary to outline first the nature of the application before the Tribunal and the Tribunal decision. This was an application for review of a decision by a delegate of the Minister to cancel the applicant’s student visa.
The applicant’s visa was cancelled on 20 August 2010 in circumstances where on 28 June 2010 his education provider, Bridge Business College Pty Ltd, had certified him as not achieving satisfactory course progress for the course Certificate II in Business. The Department subsequently issued a notice of intention to consider cancellation of his visa under s.116 of the Act. Relevantly, s.116 confers a power on the Minister to cancel a visa under subsection (1):
if he or she is satisfied that … (b) its holder has not complied with a condition of the visa.
However, sub-section 116(3) provides that:
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.
Regulation 2.43 of the Migration Regulations 1994 sets out the prescribed circumstances referred to in s.116(3). For present purposes, it provides that for s.116(3) of the Act the circumstances in which the Minister must cancel a student visa are:
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.
It is not a question of a visa holder “meeting” reg.2.43(2) as appears to be contended for the applicant. Rather the visa holder’s visa “must” be cancelled if the decision-maker was positively satisfied that he had failed to comply with condition 8202 and that the non-compliance was not due to exceptional circumstances beyond his control.
When asked by the delegate to comment on whether there was a breach and whether there were exceptional circumstances, the applicant provided an explanation for his performance by email sent to the Department on 19 July 2010. He claimed that he had been studying Commercial Cookery; that the college he had attended had closed; that other education providers had closed their enrolment for commercial cookery courses (which he wanted to do); and that in those circumstances, he could choose nothing but a course which could “save” his visa. He obtained admission to the business course at Bridge Business College. He provided evidence about the Certificate II in Business course at Bridge and correspondence (including written warnings) from the college between January and May 2010. He said his girlfriend had broken up with him. This upset him so he could not concentrate. She married someone else eight weeks later. In addition, his grandfather had died in March 2010. The applicant claimed that he wanted to go home but could not do so. This made him extremely depressed and upset. Relevantly, he added:
In the mean time (sic) I have heard that I would not be able to apply for residency from chef course because of this reason I was mentally disturbed. Why? The reason is I have expended about $21,000 dollar for my tuition fees so far and all of my labour was meaning less (sic).
The applicant explained that he had received warning letters and described his communications with Bridge Business College.
The delegate cancelled the visa on 20 August 2010. The applicant sought review by the Tribunal. The Tribunal recorded that an issue was raised about whether the education provider had complied with its obligations under the National Code of Practice for Registration Authorities and Providers of Education and Training for Overseas Students 2007. No issue arises in these proceedings in that respect.
In its reasons for decision the Tribunal set out in some detail the law in relation to the issue that arises under reg.2.43(2)(b), stating that it “requires a positive state of mind on the part of the decision maker that there are no relevant exceptional circumstances”. The Tribunal referred to judicial consideration of the concept “exceptional circumstances”, noting that it was not defined in the legislation, and referred to the reference in Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581; [2009] FCAFC 150 to the approach taken to the word “exceptional” in the English case of R v Kelly (Edward) [2000] 1 QB 198 at 208 in which Lord Bingham of Cornhill CJ had stated:
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.
The Tribunal also referred to consideration of the expression “exceptional circumstances” in another part of the Act relating to revocation of automatic cancellation of student visas for breach of condition 8202 where the breach was due to “exceptional circumstances beyond the non-citizen’s control”. The Tribunal was of the view that what was said in that context was relevant to the issue before it. It referred to the fact that in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918 Walters FM had cited with approval remarks of Kiefel J at first instance in Hatcher v Cohn (2004) 139 FCR 425; [2004] FCA 1548. Relevantly, at [49] – [50] Kiefel J had described exceptional circumstances in general terms as:
… 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 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.
The Tribunal also had regard to the fact that in deciding whether a breach of condition 8202 was not due to exceptional circumstances beyond the applicant’s control it was necessary to have regard to Ministerial Direction Number 38, Guidelines For Considering Cancellation of Student Visas For Non-Compliance With Student Condition 8202. No issue arises in relation to that Ministerial Direction in this case.
The Tribunal concluded its discussion of the law by stating that the considerations referred to “are not intended to be exhaustive”, and that the Tribunal was required to “consider ‘all of the facts of a case in total’ and come to its own view as to whether it is satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control”.
No issue is taken with the Tribunal’s account of the law or of its obligations when considering the requirements of reg.2.43(2) insofar as it set them out in the introductory part of its decision.
The Tribunal set out the evidence before it, including the fact that at the hearing the applicant repeated the claims he had made in his letter to the Department as to why he did not make satisfactory course progress. He claimed that due to his circumstances he was “mentally disappointed” and just stayed at home, although he continued to work 20 hours a week in a restaurant. He did not feel physically unwell or see a doctor or a counsellor about his problems. He spoke to his parents about his grandfather’s death and to his friends about the break-up with his girlfriend.
The Tribunal recorded that the applicant also told it that he was also “very disappointed” that the government had changed the immigration rules and that he was not able to obtain permanent residence with a chef’s course.
The Tribunal asked the applicant why he considered the circumstances to be exceptional circumstances beyond his control. The applicant stated that he was mentally very upset about his situation and could not do anything about it from Australia. He knew about condition 8202 and accepted that he was careless in not attending college.
The Tribunal found that the applicant had not complied with condition 8202(3)(a), there being a certification from the education provider that he had not achieved satisfactory course progress and hence that he had breached condition 8202. Again, no issue arises in these proceedings in relation to that finding. However I note that, as the Tribunal stated, it is the certification that constitutes the breach of condition 8202(3), not the unsatisfactory progress or attendance itself (see Maan at [44] – [45]).
The Tribunal then considered whether it was satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. The Tribunal referred to the absence of matters arising under Ministerial Direction 38 and the need to consider all the facts of the case. It accepted the applicant’s claims that his grandfather had died and that he had broken up with his girlfriend. It recorded that the applicant claimed he stopped studying because he was affected by these events. However the Tribunal did not accept that these were “exceptional” circumstances. It found that many overseas students had elderly family members who were unwell and needed medical treatment or passed away. It did not accept that the grandfather’s death was an exceptional circumstance in the sense of being out of the ordinary course, unusual, special or uncommon. Nor did it accept that the applicant’s break-up with his girlfriend was an exceptional circumstance in that sense. It found that many young people experienced relationship difficulties, tensions and break-ups as part of day-to-day life and that such circumstances were not exceptional.
The Tribunal continued at paragraph [48] (the paragraph with which the applicant takes issue in these proceedings):
The applicant also claims that he was very disappointed when the immigration rules changed and he was no longer able to apply for permanent residency on the basis of his commercial cookery course. The Tribunal does not accept that this was an exceptional circumstance beyond the applicant’s control. The student visa is a temporary visa granted for the purpose of study, not for the purpose of obtaining permanent residency.
Although the ground in the application is focused on paragraph [48] of the Tribunal’s decision, it is relevant to have regard to the fact that the Tribunal went on to reject the claim that the closure of the applicant’s former college (where he had wanted to complete a Diploma of Hospitality) was an exceptional circumstance beyond his control, given that he had been able to complete his Certificate III in Commercial Cookery and had time to search for a new course. It found that many overseas students may have to study courses that are not their first choice, that the circumstances were not exceptional and that it would have been within the applicant’s control to continue studying until he could change to a preferred course.
The Tribunal then addressed the applicant’s claim that he was depressed, upset and “mentally disappointed” by his situation, including the change in the immigration rules, and that this was why he did not attend college or complete his subjects. In other words, it had regard not only to the fact of the change in the law but also to the claimed impact on the applicant. The Tribunal considered the impact on him of the combination of his circumstances. It found that there was no objective medical evidence that the applicant was feeling so unwell that he was unable to attend college or complete his subjects. It had regard to his own evidence that he did not feel physically unwell or the need to consult a doctor or counsellor, and found that his feelings were “more of a worry and frustration” which were not exceptional in the circumstances. It referred to the fact that the applicant continued working and found that this indicated that he was able to function. It had regard to his own evidence that he was aware he had to continue studying but he did not do so because of carelessness. The Tribunal concluded that it would have been within the applicant’s control to attend college and study. It did not accept that the applicant was so debilitated by illness or other factors that he could not study.
The Tribunal also found no problems with the process leading to the non-compliance.
Considering the applicant’s claims individually and in combination, the Tribunal was satisfied that the applicant’s breach was not due to exceptional circumstances beyond his control. It therefore, in accordance with s.116(3) of the Act, affirmed the decision to cancel his visa.
In support of the proposition that the Tribunal fell into jurisdictional error by taking into account an irrelevant consideration, counsel for the applicant took issue with the final sentence in paragraph [48] of the Tribunal decision that “The student visa was a temporary visa granted for the purpose of study, not for the purpose of obtaining permanent residency”. It is this statement which, in context, is said to amount to the Tribunal taking into account an irrelevant consideration.
The applicant contended that the issue for the Tribunal, and the only issue for the Tribunal, was whether the non-compliance with condition 8202(3)(a) was due to exceptional circumstances beyond the applicant’s control. It was acknowledged that the Tribunal was responding to a claim that the applicant had made about the changes in the migration law leaving him unable to obtain permanent residence and making him mentally disturbed, but submitted that the response of the Tribunal that the student visa was a temporary visa granted for the purpose of study was outside the scope of the matters to be considered in the context of Migration Regulation 2.43(2) and hence was an irrelevant consideration in the sense considered in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24; [1986] HCA 40 by Mason J at p.40.
In Peko-Wallsend what was in issue in the part of the judgment of Mason J relied on by the applicant was whether there had been a failure to take into account a relevant consideration in the context of s.5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). His Honour indicated that that legislation was substantially declaratory of the common law. Mason J stated (at p.39) that the ground of failure to take into account a relevant consideration in making an administrative decision was limited to circumstances where a decision-maker failed to take into account a consideration that he was “bound” to take into account in making that decision and that what factors a decision-maker was bound to consider was determined by construction of the statute conferring the discretion. If the relevant factors were not expressly stated, “they must be determined by implication from the subject matter, scope and purpose of the Act” (at pp.39 – 40). With that background, his Honour continued at p. 40:
In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.
Mason J referred to a number of authorities in that respect.
It is apparent from the oral submissions of the applicant that it is contended that the discretion in reg.2.43 of the Migration Regulations is confined in its terms to exceptional circumstances beyond the visa holder’s control and that on that basis it was not open to the Tribunal to have regard to the fact that a student visa was a temporary visa granted for the purpose of study, not for the purpose of obtaining permanent residency. It was submitted that whether a student visa was temporary or permanent had nothing to do with the issue of whether the non-compliance with a condition of the visa was due to exceptional circumstances beyond the control of the applicant, and that the Tribunal’s consideration was, by virtue of reg.2.43, limited to circumstances referred to in that regulation.
While counsel for the applicant acknowledged that the Tribunal had to have regard to factors that were raised by an applicant, it was submitted that the purpose or duration of the visa was not a consideration to which it could have regard and that in so doing it had taken account of an irrelevant consideration, as the only question for the Tribunal was whether the non-compliance was not due to exceptional circumstances beyond the control of the applicant.
It was conceded by counsel for the applicant that there was no suggestion that there was any jurisdictional error in the manner in which the Tribunal made its findings in the subsequent paragraphs of the decision.
The Minister submitted that no jurisdictional error was established in the manner contended for by the applicant. It was submitted that the applicant’s complaint mischaracterised the Tribunal’s reasons for decision and therefore failed on a factual basis. It was also contended that however the error was characterised, a fair reading of the Tribunal’s reasons revealed that it did not misdirect itself or take into account an irrelevant consideration in having found, in paragraph 48, that it did not accept that the applicant’s disappointment when the immigration rules changed and he was no longer able to apply for permanent residency was an exceptional circumstance beyond the applicant’s control.
Insofar as the applicant’s contentions could be seen as an emphatic way of expressing disagreement with the Tribunal reasons, the first respondent contended that this did not establish jurisdictional error. The applicant’s complaint was characterised as a contention that in considering a relevant consideration, that is the issues raised by the applicant, the Tribunal took into account an irrelevant consideration. This was said to amount to no more than a disagreement with the Tribunal’s factual findings.
It was contended that the application confused the question of the factual findings and the statutory question which the Tribunal had to consider, which was whether there were exceptional circumstances beyond the applicant’s control. It was said that the Tribunal had considered those considerations advanced by the applicant and that it did not go beyond those matters (that is the considerations advanced by the applicant and the matters referred to in the Ministerial Direction) and hence that its factual findings were then a matter for it.
It was submitted that the Tribunal’s finding in this respect was a finding of fact for the Tribunal and not subject to judicial review. Reliance was placed on what was said in Maan at [52]. In that case the Court expressed surprise at the Tribunal’s finding that a male student aged 18 years old and alone for the first time in a foreign country, would naturally seek medical help for depression related symptoms. The Tribunal was not satisfied that the applicant remained stressed or depressed for several months after events involving his mother and grandfather, particularly in light of his failure to seek professional assistance. The court in Maan stated:
…the findings of the Tribunal in respect of the exceptional circumstances submitted by the appellant were findings of fact, clearly open to the Tribunal, and do not reveal jurisdictional error.
The respondent contended that the same could be said in this case.
It was submitted that the nature of the applicant’s visa and the possible opportunity for permanent residency that might arise from that visa was a relevant consideration in the context of the Tribunal’s inquiry; that the Tribunal considered this issue; and that it was open to it to find that the applicant’s disappointment at not being able to obtain permanent residency could not be considered an exceptional circumstance beyond his control as a reason for his non compliance with the condition of his student visa (given that the purpose of his student visa was to allow him to reside in Australia temporarily to study and not as a vehicle to obtain permanent residency). In other words, it was submitted that it was open to the Tribunal not to accept that any disappointment that the applicant may have due to a change in the immigration rules constituted an exceptional circumstance beyond his control that was a reason for his failure to achieve satisfactory course progress.
Reliance was placed on the general principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 that Tribunal reasons are not to be construed minutely and finely with an eye too keenly attuned to the perception of error.
It has not been established that the Tribunal fell into jurisdictional error in the manner contended for in the application. As explained in oral submissions, the applicant’s contention is that the discretion in reg.2.43(2) is not unconfined (see Peko-Wallsend at p.40). Counsel for the applicant did not suggest that this was a case in which there was an unconfined discretion but there nonetheless may be found in the subject matter, scope and purpose of the migration legislation some implied limitation on the factors to which the decision-maker may legitimately have regard.
However reg.2.43 should be seen in context. It is not a discretion which enables the Tribunal, for example, to decide not to cancel a visa in exceptional circumstances. Rather, as set out above, it defines prescribed circumstances in which a visa must be cancelled under s.116(3) of the Act. Prescribed circumstances relevantly exist where the decision-maker is positively satisfied not only that the visa holder has not complied with condition 8202, but also that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
Insofar as the applicant’s contention may be seen as in some way suggesting a limitation on the factors to which the Tribunal may have regard in considering whether it is satisfied that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control, it is clear from the subject matter, scope and purpose of the Act (see Peko-Wallsend at p.40) that, as the Tribunal correctly stated in its reasons for decision, the Tribunal is required to consider “all of the facts of the case” including the Ministerial Direction and to come to its own view as to whether it is satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. There is no suggestion that the Tribunal failed to have regard to the issues that were raised by the applicant in this case.
In effect, issue is taken with the Tribunal’s reliance on the nature of the student visa as a factor which warranted its conclusion that the impact of the change in the law as raised by the applicant was not an exceptional circumstance. It is relevant, however, to have regard to the Tribunal’s reasoning. It asked itself the right question, about whether a matter raised by the applicant was an exceptional circumstance beyond the applicant’s control, as is apparent from the second sentence in paragraph 48. It went on to consider the factors that it regarded as relevant in answering that question in relation to the matter raised by the applicant as can be seen having regard to the Tribunal decision as a whole. The Tribunal did not accept that the applicant’s claim he was very disappointed when the immigration rules changed and he was no longer able to apply for permanent residence on the basis of his commercial cookery course was an exceptional circumstance beyond the applicant’s control. What follows in that paragraph must be seen in context as an explanation for or reason for that finding (see Wu Shan Liang). The reference to the student visa being a temporary visa must be considered in light of what the Tribunal had said earlier about the concept of exceptional circumstances and the judicial consideration of that concept, including the statement by Kiefel J in Hatcher v Cohn at [49], that:
Factors affecting a person which set them apart from other persons in a comparable situation may amount to exceptional circumstances.
It was in that context that the Tribunal had regard to whether a change in the law so that a person who had undertaken a commercial cookery course while holding a temporary student visa could not obtain permanent residence, was an exceptional circumstance beyond the applicant’s control. It made its finding in that respect having regard to the nature of the student visa as a temporary visa granted for the purpose of study, not for the purpose of obtaining permanent residence.
The fact that the Tribunal had regard to this issue is consistent with the fact that while the Tribunal was obliged to have regard to whether there were exceptional circumstances, the concept of exceptional circumstances in reg.2.43 is an extremely broad concept, commonly used to give a decision-maker the power to identify circumstances or reasons which are to apply as a qualification on some other statutory provision.
Importantly, what the Tribunal was considering under reg.2.43(2) was not just whether there were exceptional circumstances beyond the applicant’s control, but also whether it was positively satisfied that the non-compliance was not due to such circumstances. In such a context the scope of potentially “relevant” considerations is unconfined, beyond the fact that what is in question about any suggested circumstance is whether it is an exceptional circumstance beyond the applicant’s control that caused the non-compliance in issue (see Maan at [52]).
Other than Peko-Wallsend, I was not referred to any authorities in relation to irrelevant considerations in the context of reg.2.43(2) or as to how one determines whether the Tribunal has taken into account an irrelevant consideration in the context of such a statutory provision. There is a helpful elucidation of applicable principles by Smith FM in Kim v Minister for Immigration and Citizenship [2008] FMCA 1577. An appeal from that decision was dismissed in Bo Hyung Kim v Minister for Immigration and Citizenship [2009] FCA 161. While Smith FM was considering a provision that involved a dispensation from the normal rule where there were exceptional reasons for the grant of a visa (which is not exactly the same concept or context as here), it is nonetheless relevant that his Honour proceeded on the basis that the Migration Act would allow the making of a regulation that conferred an unconfined discretion in that respect. On that basis the decision-maker could give effect to any rational reasons (at [15]). Further, Keifel J accepted in Hatcher v Cohn (a case referred to by the Tribunal) at [50] that a formulation such as “exceptional circumstances” (like “special circumstances”) “is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition” (emphasis added) (Baker v the Queen (2004) 223 CLR 513; [2004] HCA 45 at [13] per Gleeson CJ).
In Hatcher v Cohn Kiefel J applied such an approach in relation to the concept of “exceptional circumstances” in the Migration Act, indicating that this concept “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” (at [50]).
As a matter of statutory construction there is nothing in the language of reg.2.43(2) or in the context of the legislation to indicate that there is some limitation on factors the Tribunal can take into account in proceeding to consider whether it is satisfied that non-compliance with condition 8202 was not due to exceptional circumstances beyond the applicant’s control, other than the question which it had to ask itself. Reading the Tribunal fairly and as a whole, that it precisely what the Tribunal proceeded to do.
There is no suggestion that the Tribunal’s decision involved unreasonableness, or a lack of logic constituting jurisdictional error. Even if another decision-maker may not have had regard to the temporary nature of a student visa as a basis for concluding that the applicant’s disappointment that he could not seek permanent residence because of a change in the law based on his commercial cookery course was not an exceptional circumstance beyond the applicant’s control, this does not establish jurisdictional error (see Maan at [52]).
It has not been established that the Tribunal took into account an irrelevant consideration in the sense considered in Peko‑Wallsend or, indeed, in any of the authorities referred to therein, having regard to the legal framework in which the concept appears and the subject matter, scope and purpose of the Regulations. It was open to the Tribunal to find that it was not satisfied that the applicant’s disappointment that the immigration rules had changed and that he could no longer apply for permanent residency on the basis of the cookery course he did while holding a temporary visa was not an exceptional circumstance for the reason it gave.
Moreover, the Tribunal not only considered that issue, but also addressed the broader issue of the impact on the applicant – consisting of the claimed mental disappointment he said resulted from this and from his other circumstances. It did not accept that the applicant was so debilitated by illness or other factors that he could not study.
It has not been established that it was not open to the Tribunal to have regard to the factor to which it had regard in finding that it was not satisfied that there was an exceptional circumstance beyond the applicant’s control in paragraph 48 of its decision.
As it has not been established there is a jurisdictional error on the basis contended for by the applicant, the application must be dismissed.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 1 August 2011
7
16
3