Asif v Minister for Immigration and Citizenship [2011] FCA 1104

FEDERAL COURT OF AUSTRALIA

Asif v Minister for Immigration and Citizenship [2011] FCA 1104 Citation: Asif v Minister for Immigration and Citizenship [2011] FCA 1104

Appeal from: Asif v Minister for Immigration & Anor [2011] FMCA 147

Parties: MUHAMMAD ASIF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

File number: VID 257 of 2011

Judge: GRAY J

Date of judgment: 28 September 2011

Catchwords: MIGRATION – visa – student visa – cancellation – breach of condition – failure to be enrolled in registered course – cancellation mandatory if breach not due to exceptional circumstances beyond control of visa holder – appellant failed to re-enrol by cut-off date – claimed wished to defer and return home, but warned by parents of unrest in home town and missed cut-off date owing to confusion – Tribunal found unrest in home town an exceptional circumstance – Tribunal found unrest not a cause of failure to re-enrol – whether Tribunal erred in finding breach ongoing without investigating circumstances after cut-off date – whether Tribunal bound to approach consideration of exceptional circumstances, causation and control in that order – whether Tribunal applied wrong test of causation

Legislation: Migration Act 1958 (Cth), ss 31(1), 40(1), 41(1), 116, 116(3), 499, 504(1) Migration Regulations 1994 (Cth), regs 1.03, 2.01, 2.02, 2.05, 2.43, 2.43(2), 2.43(2)(b)(ii)(B), Sch 1 items 1222, 1222(4), Sch 2 items 573, 573.6, 573.611(1)(a), Sch 8 items 8202, 8202(2)(a) Ministerial Direction No 38, 19 September 2007