FEDERAL COURT OF AUSTRALIA

Gurung v Minister for Immigration and Border Protection [2014] FCA 478

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants pay the first respondent Minister’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        At the conclusion of the hearing this morning, the Court announced that it was in a position to pronounce its orders in the appeal. It informed the parties that it would publish its reasons for making those orders at 4.00 pm today. What follows are the Court’s reasons for making those orders.

2        This proceeding is an appeal from the judgment of a judge of the Federal Circuit Court which dismissed the appellants’ application for judicial review of a decision of the Migration Review Tribunal. The Tribunal had affirmed a decision of the delegate of the first respondent Minister to cancel the first appellant’s student visa.

3        The first appellant, Ms Gurung, is a citizen of Nepal. She was enrolled in a Bachelor of Commerce (Accounting) course at the University of Ballarat, commencing on 11 July 2011. On 13 September 2012, the University certified that she had not achieved satisfactory progress in her course. One of the conditions of Ms Gurung’s student visa (“Condition 8202”) provided that if the education provider certifies that the visa holder is not achieving satisfactory course progress, the visa may be cancelled; see s 116(1) and (3) of the Migration Act 1958 (Cth) (“the Act”) and reg 2.43 of the Migration Regulations 1994 (Cth), as amended by the Migration Legislation Amendment Regulation 2013 (No 1) (Cth) (“the Regulations”).

4        Prior to cancelling a student visa, the Minister must be satisfied that “the non-compliance was not due to exceptional circumstances beyond the visa holder’s control”; see r 2.43(2)(b)(ii).

5        Ms Gurung relied on what she said were the following exceptional circumstances:

    her marriage to a person outside her caste and religion without the support of her family;

    her brother’s depression which caused him to leave Australia;

    her grandfather’s serious health problems in Nepal, which made it necessary for her to visit him between 10 September and 10 October 2011; and

    her mother’s illness in mid-May 2012.

6        A delegate of the Minister cancelled Ms Gurung’s student visa on 24 October 2012. Ms Gurung, and her spouse Mr Subba, applied to the Tribunal for a merits review of the decision. Mr Subba applied as a member of Ms Gurung’s family unit.

7        The Tribunal held that it had jurisdiction to review the delegate’s decision concerning Ms Gurung but not concerning Mr Subba. Mr Subba’s visa had been automatically cancelled upon the cancellation of Ms Gurung’s visa. It was not cancelled as a result of any decision let alone any reasonable one.

8        The sole issue for determination was whether the Tribunal could be satisfied that Ms Gurung’s non-compliance with Condition 8202 was not due to exceptional circumstances beyond Ms Gurung’s control.

9        The Tribunal, relying on authority, considered that exceptional circumstances were unusual ones or those out of the ordinary, but depended on the context in which those words were used. The Tribunal considered Direction No. 38, which is a relevant guideline for the purpose of considering cancellation of visas for breach of Condition 8202. The Direction is made under s 499 of the Act. The status and relevance of directions made under the section is discussed in Jagroop v Minister for Immigration and Border Protection [2013] FCA 1287 at [82]-[96].

10        Factors relevant to a lack of compliance with Condition 8202 include whether political upheaval or a natural disaster has occurred in the home country of the visa holder and any failings in the recording systems of the education provider. These matters, however, are not exhaustive.

11        The Tribunal considered that Ms Gurung’s claim concerning her need to travel to Nepal to visit her grandfather in 2011 for one month was not an exceptional circumstance. It held that it was not unusual or out of the ordinary and that many overseas students have family members at home who are elderly and ill.

12        The Tribunal also observed that the grandfather’s condition was not serious and that he was discharged from hospital into the care of his spouse. Ms Gurung decided nevertheless to stay in Nepal an extra three weeks to spend time with her family.

13        The Tribunal next considered Ms Gurung’s claims that her academic progress was affected by her mother’s health condition, her brother’s depression and her parents’ opposition to her marriage.

14        As the health condition of Ms Gurung’s mother and brother had been longstanding, it did not consider that these were exceptional circumstances in the context of r 2.43(2)(b)(ii). The Tribunal observed that there was no medical evidence produced by Ms Gurung to show that her family members’ illnesses had caused her stress.

15        Finally, the Tribunal did not accept that the claimed objection to her marriage by Ms Gurung’s family was an exceptional circumstance. It noted that she did not raise this issue at the oral hearing before it.

16        Ms Gurung and Mr Subba sought judicial review of the Tribunal’s decision before the Court below. It is difficult to see how Mr Subba was a proper applicant as he did not challenge the decision of the Tribunal that it had no jurisdiction to hear his review application. The grounds of review related solely to Ms Gurung.

17        The primary judge dismissed the application in a somewhat unorthodox fashion. After setting out the statutory context and the relevant factors and reviewing the terms of the decision of the Tribunal, the Court below raised its concern about the Tribunal’s concentration on what caused Ms Gurung to be unsuccessful in her examinations in considering what constituted “special circumstances”.

18        Ultimately, as to the issue of the grandfather’s illness, the Court below was satisfied that it could not interfere with a finding of fact that the illness did not constitute an exceptional circumstance.

19        The Court below considered that the Tribunal did not appear to give consideration to the issue of the grandfather’s illness in respect of the reasons for Ms Gurung’s unsatisfactory progress in 2012. However, as the Court below observed itself, read as a whole, the Tribunal did address that issue. In its conclusion at [17], the Court below said:

“… the Tribunal was entitled to come to a finding that there was not sufficient evidence to satisfy it that the stress was exceptional, beyond her control and caused non-compliance with Condition 8202.”

20        There are aspects of the judgment below which appear to raise issues with matters of expression in the Tribunal’s reasons. However, as the Court below indicated at [22], to take these matters further would have caused it to engage in impermissible merits review.

21        On appeal, it is contended by the appellants that the Court below found jurisdictional error at [19] of its reasons by finding that “the Tribunal has conflated the reasons for the stress with the stress itself”. At [22] the Court below reveals that on closer analysis and reflection, no such “conflation” occurred. At [22] it said:

A careful reading of [69] would indicate that up to the words “her non compliance with Condition 8202” the Tribunal is considering the stress and it is the stress to which the Tribunal refers in the second sentence. If, as the applicant would argue, the Tribunal is referring to the family’s objection to her marriage, there would have been no need to repeat the view in the last sentence. What the Tribunal appears to be saying is that the applicant has not satisfied it because of the limited information provided both as to why the stress constituted an exceptional circumstance and how it caused her non-compliance. For the Court to engage with the Tribunal as to the adequacy of the information provided by the applicant would be to provide the applicant with impermissible merits review.

22        The other appeal grounds repeat matters put before the Court below which seek to impugn factual findings made by the Tribunal.

23        Ground 2 alleges that the primary judge erred by inferring that there was no differentiating factor suggested in the relationship between the first appellant and her grandfather. The first appellant contends that she was very close to her grandfather and that that should have been recognised by the Tribunal as a differentiating factor. The first appellant submits that it was insufficient for the Tribunal to say that many overseas students have elderly and ill family members. However, as the Minister contends, the first appellant did not identify, before the Tribunal, any differentiating factor to explain how her response to her grandfather’s illness was exceptional. It is not uncommon or exceptional for grandchildren to be close to their grandparents.

24        Ground 3 takes issue with his Honour’s conclusions at [22] of his judgment, which are set out at [20] above. Counsel for the appellants take issue with the approach of the primary judge as to the Tribunal’s treatment of the claim concerning the objection of the first appellant’s family to her marriage. The important point to consider in current discussion is that the Tribunal made a finding of fact that the objection to the marriage was not an exceptional circumstance. The Tribunal’s failure to accept the contrary position did not amount to jurisdictional error.

25        The appellants were represented by lawyers from the afternoon before the appeal. Submissions were filed, out of time, without leave. Those submissions addressed the issues raised above except for Ground 4 of the notice of appeal. That ground contended that his Honour below erred in not finding jurisdictional error. That ground takes the arguments advanced above no further.

26        The respondent Minister filed a notice of contention which deals with an alleged “finding” by the primary judge concerning stress experienced by Ms Gurung, as distinct from the claimed reasons for it, as being capable of being exceptional circumstances. The notice suggests the precise finding the Court below should have made. Given that the appeal did not succeed, it was not necessary to deal with the notice of contention. However, it must be emphasised that it was not the task of the Court below to make factual findings. That was the role of the Tribunal. The Court below had a duty to consider whether the Tribunal’s findings gave rise to jurisdictional error.

27        For the foregoing reasons, the appeal was dismissed with costs. It should be observed that the second appellant, Mr Subba, had no standing to be an appellant or indeed an applicant before the Court below as the Tribunal did not deal with any decision concerning him. His visa was cancelled automatically as a consequence of a decision to cancel Ms Gurung’s visa.

Associate:

Dated:    13 May 2014