Asif v Minister for Immigration and Citizenship

Federal Court of Australia|2011-09-28|Before: Gray J

The application to the Federal Magistrates Court 23 Although it alleged jurisdictional errors on the part of the Tribunal, the appellant's original application to the Federal Magistrates Court relied mostly on alleged errors of fact on the part of the Tribunal. Subsequently, the appellant filed an amended application, alleging that the Tribunal's decision was made without jurisdiction or was affected by error of law. This ground was the subject of particulars as follows: (a) The Tribunal misapplied regulation 2.43 to the facts of this case in determining whether the [appellant's] non-compliance was not due to exceptional circumstances beyond his control in that the Tribunal did not consider whether exceptional circumstances were not the cause of the breach in the specific time period that was relevant (23 − 26 July 2010). (b) In its approach to the causal link between exceptional circumstances and the breach, the Tribunal wrongly construed regulation 2.43 or alternatively misapplied and/or asked itself the wrong question. 24 Under cover of these particulars, the appellant put to the Federal Magistrates Court two arguments. The first was that Leung required the Tribunal to take a three-step logical approach to the determination of the question whether the failure to comply with condition 8202 was not caused by circumstances beyond his control, and that the Tribunal had not taken the three steps in the order required by Leung. In particular, the argument was that the Tribunal failed to determine as the second step whether the circumstances it found to have been exceptional were the reason for the failure to comply with condition 8202. Instead, the Tribunal jumped directly to the question whether the circumstances were beyond the appellant's control. The second submission was that the Tribunal made a finding of ongoing failure to comply with condition 8202, instead of considering only the period between 23 July 2009, when the appellant said he had his conversation with Ms Gurung, and 26 July 2009, after which it became impossible for him to re-enrol. The complaint was that the Tribunal failed to make any finding about whether the appellant could have re-enrolled after that time.

The Federal Magistrate's reasons for judgment 25 As to the appellant's first submission, the reasoning of the learned federal magistrate is set out at [30]-[34] of her Honour's reasons for judgment: It appears that the Tribunal understood the [appellant's] case to be that all of the factors which he relied upon to constitute 'exceptional circumstances' are those contained in paragraph 79. This appears to be a logical conclusion both from the way it is set out in the decision and the reality that it could only be a combination of those factors which could constitute the circumstances under which he failed to re-enrol or defer his course. If the [appellant] did not wish to return to Pakistan to visit his family then the civil unrest there would not, in itself, cause him to be indecisive about re-enrolling or deferring his course. The political unrest in Pakistan is conceded by the Tribunal to constitute an exceptional circumstance but this on its own does not constitute the [appellant's] case. It was not presented as such by the [appellant] nor treated as such by the Tribunal. While paragraph 85 may not be expressed in terms of the step by step approach advocated by the [appellant], it appears clear that the Tribunal did not accept the validity of the combination of circumstances relied upon by the [appellant]. In particular, it did not accept that the [appellant] discussed deferral with the education provider. Further, it did not accept that the warning by his family that he should not return to Pakistan would have paralysed his decision making capacity to such an extent that he was unable to take action to either re-enrol or defer his course of studies. It appears clear that the Tribunal did not accept all of the matters relied upon by the [appellant] as constituting 'exceptional circumstances', nor did it accept, therefore, that those circumstances, looked at collectively were the cause of his failure to comply with condition 8202. Further, it did not accept that the actual cause of his failure to comply with condition 8202 was beyond his control. The Tribunal found that the failure to comply with the condition was the [appellant's] failure to take responsibility for his enrolment status and not the combination of circumstances which he relied upon to constitute 'exceptional circumstances'. While the Tribunal might have expressed its conclusions in another way to more clearly set out the train of its reasoning, I am satisfied that it did not make an error in its approach to determining the issue. At [35]-[36], the federal magistrate found that the Tribunal did not rely on matters after 26 July 2009, in reaching its conclusion that any breach of condition 8202 was established.

The grounds of appeal 26 The notice of appeal filed in this Court raises two grounds, expressed as follows: 1. Her Honour erred in finding that there was no misapplication by the Migration Review Tribunal ("the Tribunal") of regulation 2.43 of the Migration Regulations 1994 (Cth) to the facts of this case in determining whether the appellant's non-compliance was not due to exceptional circumstances beyond his control in that the Tribunal did not consider whether the exceptional circumstances were not the cause of the breach in the specified time period that was relevant (23 - 26 July 2009). 2. Her Honour erred in finding that the Tribunal's decision was not made without jurisdictional error in its approach to the causal link between exceptional circumstances and the breach, such that the Tribunal wrongly construed regulation 2.43 of the Migration Regulations 1994 (Cth) or alternatively misapplied and/or asked itself the wrong question. 27 It can be seen that these two grounds of appeal are designed to raise the same two arguments that were dealt with in the Federal Magistrates Court.

The ongoing breach issue 28 The appellant's submission that the Tribunal thought that his breach of condition 8202 was an ongoing one was based on the sentence at [77] of the Tribunal's reasons for decision, in which the Tribunal said that the appellant "ceased to be enrolled in a registered course from 21 July 2009, was not enrolled in a registered course since that date and as a result breached condition 8202 (2) (a)." Counsel for the appellant argued that this involved taking into account the appellant's inaction after the cut-off date for re-enrolment, without making any findings about whether he could have re-enrolled after that date. It was said that the Tribunal thereby failed to complete its inquiry in relation to causation and failed to consider whether the exceptional circumstances caused the breach of condition 8202 at the relevant time. 29 The problem with this argument is that, in the sentence immediately before the one quoted in [28] above, the Tribunal said, "The Tribunal is satisfied that the [appellant] breached condition 8202(2) by failing to re-enrol for the semester commencing on 21 July 2009." The passage quoted in [28] above is also preceded by the words "In light of these circumstances the Tribunal is satisfied that the [appellant]". The Tribunal had found that the last date for re-enrolment was 26 July 2009. Plainly, the Tribunal took the view that the non-compliance with condition 8202 was complete at that date. So far as it affected the appellant, condition 8202(2)(a) required him to be enrolled in a registered course. Once a new semester began, and the date for enrolment in respect of it passed, the appellant could no longer comply with this condition. He had ceased to be enrolled in a registered course at that date. The appellant did not attempt to place before the Tribunal any material suggesting that he had remedied the default by some subsequent action. By using the words quoted in [28] above, the Tribunal was not to be taken as making any finding about what had or had not occurred, or what could or could not have occurred, after 26 July 2009. In the absence of material suggesting that any other relevant event had occurred, the Tribunal was entitled to assume that the breach it found had occurred by 26 July 2009 was continuing at the date of its decision. 30 There was no error on the part of the federal magistrate in being satisfied that the Tribunal did not rely on matters after 26 July 2009.

The order of consideration 31 The argument put by counsel for the appellant, to the effect that the Tribunal failed to consider the elements of reg 2.43(2)(b)(ii)(B) of the Migration Regulations in the correct order, was founded upon a passage from Leung at [32]-[33]. After referring to a submission made by counsel for the Minister in that case, Lander J said: However, the MRT should have made findings as to whether it accepted that the appellant had made out "exceptional circumstances"; and whether it accepted that the appellant's non-compliance with Condition 8202 was due to those exceptional circumstances. Lastly, it should have addressed the question of control. 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. 32 In Leung, a student visa had been cancelled for failure to comply with condition 8202. The failure was unsatisfactory attendance. Initially, Mr Leung had given two reasons for that unsatisfactory attendance. One was the distance he had to travel from his home to the college he was attending and the difficulty caused by bad weather and traffic conditions. The other was that he had been absent because of stomach problems. When the case reached the Tribunal, Mr Leung gave another explanation, concerning the illness and subsequent death of his grandmother in Hong Kong, which he said caused him to suffer depression and homesickness. At [41], Lander J found that the Tribunal did not decide all three issues which arose for determination under reg 2.43. It did not determine whether the circumstances relied on by Mr Leung were exceptional circumstances. It did not determine whether those circumstances were the cause of his non-compliance with condition 8202. It did not complete its inquiry into whether the circumstances it accepted had occurred were beyond Mr Leung's control. 33 In 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. 34 The 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. 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. 36 It follows that the Tribunal did not fall into error by adopting an order of determining the issues different from that suggested in Leung. Its finding that there was no causal connection between the civil unrest in the appellant's home town in Pakistan (the only exceptional circumstance the Tribunal identified) and his failure to remain enrolled in a registered course was fatal to his case. 37 By way of subsidiary argument, counsel for the appellant sought to challenge the Tribunal's reasoning on the issue of causation. The argument was that the Tribunal was in error at [85] of its reasons for decision in treating circumstances other than the civil unrest in the appellant's home town as breaking the chain of causation between that civil unrest and his failure to re-enrol. Counsel for the appellant referred to Applicant N403 of 2000 v Minister for Immigration and Multicultural Affairs [2000] FCA 1088 at [24], in which Hill J said that matters of causation in immigration matters require "a common sense resolution" and deplored any distinction between a primary and a secondary cause where both are linked. Counsel for the appellant also relied on the passage in the judgment of Weinberg J in Indatissa v Minister for Immigration and Multicultural Affairs [2000] FCA 119 at [48], where his Honour said: However, that causal link need not be understood in any "but for" sense. It need not be the sole, or even the predominant, factor behind the decision. It is sufficient if the link between the supposed fact and the decision is tangible, and the assumed existence of the fact contributed significantly to that ultimate decision. In other words, the issue of causation is one of fact. It is not to be determined as a philosophical or scientific question, but by the application of common sense 38 On this basis, counsel for the appellant argued that the Tribunal had failed to reach the requisite state of satisfaction for the cancellation of the appellant's visa, relying on Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25], [32] and [34]. 39 The difficulty in accepting the appellant's argument about causation arises principally from the proposition that the determination of causation is a question of fact, and therefore one for the Tribunal. The Tribunal is required to make findings of fact and to use those findings in reaching its conclusion about the issues it must determine. The making of findings of fact is a matter within the Tribunal's jurisdiction, and therefore cannot give rise to jurisdictional error, unless the Tribunal approaches the task of fact-finding in a way that is legally impermissible, for example, by adopting an approach that is not available to it as a matter of law. In the present case, it was open to the Tribunal as a matter of law to find that the one circumstance it identified as exceptional was too remote from the appellant's failure to re-enrol by the due date as not to amount to a cause of that failure. Indeed, the conclusion is unremarkable, given the lack of detail in the appellant's claims. The Tribunal did not adopt a "but for" test. There is nothing to show that its approach lacked common sense. Even if it could be said that another fact-finder might have taken a view more generous to the appellant, that proposition cannot amount to a basis for finding jurisdictional error on the part of the Tribunal. In short, the Tribunal did not accept that the appellant was so paralysed by indecision about whether to re-enrol or to defer and return to Pakistan that he was unable to take any action at all. That finding of fact had the result that the Tribunal was satisfied that the appellant's failure to comply with condition 8202 was not caused by exceptional circumstances beyond his control. The Tribunal was therefore bound by s 116(3) of the Migration Act to cancel the appellant's visa. 40 The appellant has not shown any error on the part of the federal magistrate in dealing with the challenge to the Tribunal's reasoning based on Leung, or in relation to the Tribunal's approach to causation.

Conclusion 41 Both grounds of appeal must fail. The appeal must be dismissed. No reason was advanced, and none appears, why the usual principle, that costs follow the event, should not be applied. Accordingly, the appellant should be ordered to pay the Minister's costs of the appeal. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray.

The nature and history of the proceeding 1 The appellant was in Australia as the holder of a student visa granted pursuant to the Migration Act 1958 (Cth) ("the Migration Act"). A condition of the visa required him to maintain enrolment in a registered course of study. At the beginning of a semester, the appellant did not re-enrol for that semester by the date on which enrolments closed. He thereby failed to comply with the condition. The first respondent, the Minister for Immigration and Citizenship ("the Minister"), and the second respondent, the Migration Review Tribunal ("the Tribunal"), on review of any decision of the Minister, were required to cancel the visa unless satisfied that non-compliance with the condition "was not due to exceptional circumstances beyond the visa holder's control." A delegate of the Minister cancelled the visa. The Tribunal affirmed the cancellation. The appellant applied to the Federal Magistrates Court of Australia for judicial review of the Tribunal's decision. The Federal Magistrates Court dismissed the application. The appellant has now appealed to this Court. 2 The question in this appeal is whether the learned federal magistrate should have held that the Tribunal made an error of law in the way in which it approached the determination of the question whether the appellant's failure to comply with the condition was not due to circumstances beyond his control. Two such errors were suggested. One involved failure to approach the three elements of the question in the correct order, and determining the question of causation incorrectly. The other concerned reliance on inaction by the appellant after the date for re-enrolment, without making any finding as to whether the appellant could have taken any action. 3 The appellant was the holder of a visa described as a Subclass 573 Higher Education Sector visa, granted on 3 July 2008. The visa contained a condition known as condition 8202. In January 2009, the appellant commenced studying for the degree of Bachelor of Commerce (Accounting) at the University of Ballarat. He completed his first semester, which ended on 10 July 2009. The last date by which he was entitled to enrol for the next semester was 26 July 2009. He failed to re-enrol. On 19 November 2009, notice was forwarded to the appellant of the intention to consider cancellation of his visa and inviting him to attend an interview on 9 December 2009. The appellant did not attend the interview. On 21 January 2010, the Minister's delegate cancelled the appellant's visa. On 4 February 2010, the appellant sought review by the Tribunal. He gave evidence at a hearing conducted by the Tribunal on 19 April 2010, at which he was represented by a migration agent. The Tribunal affirmed the decision of the Minister's delegate to cancel the visa on 20 August 2010. 4 The appellant then applied to the Federal Magistrates Court for judicial review of the Tribunal's decision. On 16 March 2011, the Federal Magistrates Court dismissed the application and ordered the appellant to pay the Minister's costs, which it fixed. The judgment is published as Asif v Minister for Immigration & Anor [2011] FMCA 147. 5 On 6 April 2011, the appellant filed his notice of appeal in this Court.

The Tribunal's reasons 17 At [39] of its reasons for decision, the Tribunal quoted at length from a submission made on behalf of the appellant. That submission referred to Ministerial Direction No. 38, which contained guidelines for considering cancellation of student visas for non-compliance with condition 8202. The submission recognised that the direction was binding, pursuant to s 499 of the Migration Act. The direction required the Tribunal to consider a number of factors, when determining whether failure to comply with condition 8202 was not due to exceptional circumstances beyond the control of an applicant. The submission also referred to Leung v Minister for Immigration and Citizenship [2010] FCA 268 (2010) 114 ALD 255 and included a quote from [33] in that judgment (see [31] below). 18 At [77], the Tribunal said: The Tribunal is satisfied that the [appellant] breached condition 8202(2) by failing to re-enrol for the semester commencing on 21 July 2009. In light of these circumstances, the Tribunal is satisfied that the [appellant] ceased to be enrolled in a registered course from 21 July 2009, was not enrolled in a registered course since that date and as a result breached condition 8202 (2) (a). 19 At [78], at the outset of its consideration of the question whether the appellant's failure to comply with condition 8202 was not due to exceptional circumstances beyond his control, the Tribunal set out a series of questions which it said required consideration: • What are the circumstances relied on by the [appellant] as exceptional? • Did the circumstances occur? • Were they "exceptional"? • Were they beyond the [appellant's] control? • Was the breach not due to them? The Tribunal then proceeded at [79] to set out the circumstances relied on by the appellant as exceptional. These included the appellant's desire to visit his family in Pakistan, his intention to do so for the whole of the period of the second semester in 2009, his conversation with Ms Gurung on 23 July 2009 and the advice she gave him, his telephone call to his parents and their advice that it was not a good time to visit because of suicide bombings, and his state of confusion, which caused him to miss the cut-off date for re-enrolment on 26 July 2009. 20 At [80], the Tribunal said that it did not accept that the appellant discussed deferral with the University of Ballarat. It found his claim to have done so false. It accepted as plausible that the appellant was homesick and wished to return to visit his family in Pakistan. It also accepted the possibility, and proceeded on the basis, that he was told that the situation in his home town in Pakistan was unstable and that, in the process of deliberating whether or not to go, he missed the deadline for re-enrolment. 21 The Tribunal then turned to the question whether the circumstances were exceptional. At [83], relying on Ministerial Direction No. 38, the Tribunal was prepared to find that the civil unrest in the appellant's home town constituted an exceptional circumstance. At [84], the Tribunal found that this circumstance was beyond the appellant's control. 22 The Tribunal then said that it did not consider that the civil unrest was the causal factor behind the breach of condition 8202 and that it did not consider that the causal factors behind the breach were beyond the appellant's control. At [85]-[86], it said: The causal chain between the political instability and civil unrest and the [appellant's] breach (failure to maintain his enrolment in a registered course either as a participating student or a deferred student) was broken by his failure to either seek a deferral or re-enrol in his course. He attributes that failure to indecision, confusion and forgetfulness. Those intervening causal factors are unexceptional and were not beyond the [appellant's] control. The Tribunal does not accept that his family's warnings about civil unrest in his home town would have paralysed the [appellant's] decision making process to the extent claimed and considers that it would have been within his control rather than beyond his control to have diarised the deadline for re-enrolment or made an application for deferral and thereby avoid breaching sub-condition 8202(2). In that sense his breach of sub-condition 8202(2) arose as a result of his failure to take responsibility for his enrolment status rather than external events in Pakistan. The Tribunal considered all of the circumstances presented by the [appellant] and the Tribunal finds that the [appellant's] breach of sub-condition 8202(2) was due to indecision, confusion and forgetfulness and not due to exceptional circumstances. The Tribunal notes in passing that, even if it considered that his indecision, confusion and forgetfulness constituted exceptional circumstances it would not have found that they were beyond his control.

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