FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Farag [2015] FCA 646 

Citation:	Minister for Immigration and Border Protection v Farag [2015] FCA 646	
		
Appeal from:	Farag and Minister for Immigration and Border Protection [2014] AATA 927	
		
Parties:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION v MINA MOUNIR FARAG and ADMINISTRATIVE APPEALS TRIBUNAL	
		
File number:	NSD 37 of 2015	
		
Judge:	ROBERTSON J	
		
Date of judgment:	30 June 2015	
		
Catchwords:	CITIZENSHIP – appeal on a question of law from Administrative Appeals Tribunal (Tribunal) – Australian Citizenship Act 2007 (Cth) – whether a person eligible to become an Australian citizen under s 21(2) – general residence requirement in s 22 – where person does not satisfy the general residence requirement that he was not present in Australia as an unlawful non-citizen at any time during the period of 4 years immediately before the day he made the application to the Minister to become an Australian citizen – statutory discretion in s 22(4A) to treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period – Tribunal found letter from Department to person to be an administrative error  and because of that the person became an unlawful non-citizen – whether error of law on the part of the Tribunal – whether Tribunal misconstrued “administrative error” – whether Tribunal applied a wrong test in determining whether the person had become an unlawful non-citizen “because of” an administrative error – whether evidence included probative material 	
		
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 44
Australian Citizenship Act 2007 (Cth) ss 3, 21 and 22
Federal Proceedings (Costs) Act 1981 (Cth) s 6
Migration Act 1958 (Cth) ss 13, 14, 82 and 116

Migration Regulations 1994 (Cth) Sch 2 	
		
Cases cited:	FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 310 ALR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259   	
		
Date of hearing:	22 June 2015	
		
Date of last submissions:	25 June 2015	
		
Place:	Sydney	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	50	
		
Counsel for the Applicant:	Mr G Kennett SC	
		
Solicitor for the Applicant:	DLA Piper Australia	
		
Counsel for the First Respondent:	Mr JF Gormly	
		
Solicitor for the First Respondent:	Labour Pains Legal	
		
Counsel for the Second Respondent:	The Second Respondent submitted save as to costs	

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 37 of 2015	

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL	

BETWEEN:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Applicant
	
AND:	MINA MOUNIR FARAG
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	ROBERTSON J	
DATE OF ORDER:	30 JUNE 2015	
WHERE MADE:	SYDNEY	

THE COURT ORDERS THAT:

1.	The appeal be dismissed, with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 37 of 2015	

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL	

BETWEEN:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Applicant
	
AND:	MINA MOUNIR FARAG
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	ROBERTSON J	
DATE:	30 JUNE 2015	
PLACE:	SYDNEY	

REASONS FOR JUDGMENT
Introduction
1		This appeal is brought by the Minister for Immigration and Border Protection (the Minister) from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 12 December 2014. 
2		By s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), an appeal lies to this Court on, and is limited to, a question of law. The meaning of s 44 has been fully considered in Haritos v Commissioner of Taxation [2015] FCAFC 92.
3		By its decision, the Tribunal set aside the decision of the delegate of the Minister dated 18 November 2013 to refuse Mr Farag’s application for citizenship and remitted the matter to the Minister for reconsideration in accordance with the direction that the period 28 November 2011 to 30 November 2011 was to be treated as if Mr Farag was not present in Australia as an unlawful non-citizen. 
4		Although the Tribunal found that during that period Mr Farag was present in Australia as an unlawful non-citizen, the Tribunal decided under s 22(4A) of the Australian Citizenship Act 2007 (Cth) (the Citizenship Act) to treat the period as one in which Mr Farag was not present in Australia as an unlawful non-citizen as the Tribunal considered that Mr Farag was an unlawful non-citizen during that period because of an administrative error. 
5		By s 3(1) of the Citizenship Act, “unlawful non-citizen” has the same meaning as in the Migration Act 1958 (Cth). By ss 13 and 14 of the Migration Act a non-citizen in the migration zone who does not hold a visa that is in effect is not a lawful non-citizen and is defined to be an unlawful non-citizen.
6		Mr Farag’s Student visa appears to have been cancelled under s 116(1)(b) of the Migration Act on the ground that he, as the holder of the visa, had not complied with a condition of the visa. By s 82(1) of the Migration Act, a visa that is cancelled ceases to be in effect on cancellation. 
The facts found by the Tribunal
7		The facts as found by the Tribunal were that Mr Farag first arrived in Australia in 2006 on a student visa. Subsequently he was granted a series of student and bridging visas. On 18 February 2010, Mr Farag was granted a Student (Class TU) Subclass 572 visa (Student visa). It was a condition of this visa that he be enrolled in a registered course of study. 
8		On 9 December 2010, Mr Farag applied for a Protection (Class XA) visa (Protection visa). The making of this application did not affect the status of his Student visa which continued in force.
9		On 10 December 2010, Mr Farag received a letter from the Department of Immigration and Citizenship (the Department) confirming that he had made an application for a Protection visa. That letter stated, in part: 
Your immigration status
You have been granted a bridging visa. This visa allows you to remain lawfully in Australia while your application is being processed. The bridging visa will only come into effect when any other substantive visa that you hold ceases.
…
Generally your bridging visa will remain in effect until 28 calendar days after you are notified of the decision on your application.
It is not necessary for you to have a visa label placed in your passport, however, you should keep this letter with you for your reference. Further information about Bridging Visas is included in the attachment Form 1024i Bridging Visas.
You have been required to provide personal identifiers and have not yet provided them. If you do not provide the required personal identifiers within the specified period, your application will be invalid. Your bridging visa will cease 28 days after you are notified of the invalidity of your application.
Your bridging visa will cease if you leave Australia. …
Some 25 pages later on, in the attachment Form 1024i Bridging Visas, which was one amongst 11 attachments, it was stated that:
A bridging visa granted to keep a non-citizen lawful while a substantive visa application is being considered will cease:
…
·	on cancellation of any substantive visa held (Bridging visas A, B and C only);
…

10		Mr Farag’s application for a Protection visa was refused by a decision made on 11 August 2011. Mr Farag was advised as follows:
… You are entitled to apply to the Refugee Review Tribunal (RRT) for a review of this decision. An application for review of this refusal decision must be given to the RRT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.
If you make a valid application for review of this decision, your bridging visa will remain in effect until 28 days after the RRT has notified you of its decision. If you withdraw your application for review to the RRT, your bridging visa will cease 28 days after that withdrawal. …
11		On 20 October 2011, the Department sent Mr Farag a letter notifying him of its intention to consider cancelling his Student visa.
12		On 28 November 2011, Mr Farag’s Student visa was cancelled. A letter dated the same day was sent to Mr Farag attaching the decision record, in which the following was stated:
Mr Farag has submitted a medical certificate dated 25 October 2011 in support of his medical condition. The medical certificate stated that Mr (sic) had shown definite symptoms of depression from the beginning of this year. Mr Farag is currently undergoing extensive course of treatments (sic) including counselling and CBT (Cognitive behavioural therapy). Mr Farag has also been prescribed medications to control his acute anxiety symptoms…
I accept that Mr Farag may have been suffering from depression and has sought medical consultation on numerous occasions …
However, in Mr Farag’s written response, he did not provide any evidence of support of his mental condition from a psychiatrist or psychologist. There were no assessments or reports from specialists confirming the severity of Mr Farag’s medical condition. Neither has Mr Farag provided any records or evidence of medication, counselling and rehabilitation sessions he undertook to treat his depression …
At the time of decision, it was evident that Mr Farag has sought medical treatment/consultation… How ever (sic) there was no further evidence showing the counselling/treatment Mr Farag undertook. Therefore, due to the lack of evidence, I place little weight on Mr Farag’s medical condition. In my opinion, I do not consider Mr Farag’s medical condition as a (sic) exceptional circumstance which caused Mr Farag not able (sic) to enrol in a registered course of study.
13		Mr Farag first received actual, as opposed to constructive, notice that his Student visa had been cancelled and that his Bridging visa had ceased when he was so advised by telephone by an officer of the Department at 3.00 pm on 29 November 2011. He was advised in the course of that telephone conversation to apply for another Bridging visa, which he did, and a Bridging visa was granted to him the next day, 30 November 2011.
14		Mr Farag has since been granted a Protection visa which he currently holds.
15		Until Mr Farag received the telephone call on 29 November 2011 he did not realise that cancellation of his Student visa would immediately cause him to become an unlawful non-citizen. If he had so realised he would have taken further steps to protect his immigration status based on his Student visa. At some time between receiving the letter of 20 October 2011 and the cancellation of his Student visa, Mr Farag had submitted a medical certificate to the Department in relation to his lack of enrolment. He believed that he was entitled to lawfully remain in Australia under his Bridging visa.
16		Mr Farag lodged an application for Australian citizenship by conferral in November 2013.
The statutory provisions
17		The appeal turns on certain provisions of the Citizenship Act, in particular s 22(1)(b) and s 22(4A) of that Act. At the time of the decision of the delegate the relevant provisions of the Citizenship Act were in the following terms:
21 Application and eligibility for citizenship

(1)	A person may make an application to the Minister to become an Australian citizen.
…
General eligibility
(2)	A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a)	is aged 18 or over at the time the person made the application; and

(b) 	is a permanent resident:
(i) 	at the time the person made the application; and

(ii) 	at the time of the Minister’s decision on the application; and

(c) 	satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), …
…
22 General residence requirement
(1)	Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:
(a)	the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b)	the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and
(c)	the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
…

Ministerial discretion—administrative error
(4A) 	For the purposes of paragraph (1)(b), the Minister may treat a period as one in which the person was not present in Australia as an unlawful non-citizen if the Minister considers the person was present in Australia during that period but, because of an administrative error, was an unlawful non-citizen during that period.
18		There appeared to be no dispute before the Tribunal, and the Tribunal accepted, that Mr Farag satisfied ss 22(1)(a) and (c). 
19		There was also no issue taken in the present appeal with the exercise by the Tribunal of the discretion involved in the words “may treat” in s 22(4A) of the Citizenship Act.
20		The question on the appeal is whether the Tribunal erred in law in deciding that Mr Farag was present in Australia as an unlawful non-citizen because of an administrative error.
The reasons of the Tribunal
21		The Tribunal first referred to subchapter 5.16 of the Australian Citizenship Instructions which, it said, had been adopted by the Minister. Those instructions stated that there must be an administrative error and the error must be the reason why the person lacks the necessary legal status. The concept of “administrative error” embraced a range of administrative actions. In broad terms, the Instructions continued, “it will extend to administrative mistakes and circumstances in which incorrect information is provided”.
22		The Tribunal referred to Chaudhary and Minister for Immigration and Citizenship [2010] AATA 1006 and to Rogers and Minister for Immigration and Citizenship [2011] AATA 592 and said that the administrative error may be the provision of incorrect information, including information which is misleading because it is incomplete. Looking at the words used in the statute, the only qualification of the word “error” was that it must be “administrative”.
23		The Tribunal said that when Mr Farag was granted a Bridging visa, as notified in the letter dated 10 December 2010, the advice contained in that letter, taken as a whole, was incomplete and misleading. For that reason, the Tribunal held, it was satisfied that the provision of such information was an administrative error.
24		The Tribunal then went on to consider whether Mr Farag became an unlawful non-citizen because of the administrative error. The Tribunal said that it was satisfied that Mr Farag genuinely held the belief that if his Student visa was cancelled he would remain a lawful non-citizen until his application for a Protection visa had been determined. The Tribunal said it was satisfied that the advice contained in the 10 December 2010 letter was the cause of Mr Farag’s belief. The Tribunal also held that because Mr Farag held that view, that he was entitled to remain in Australia in accordance with the Bridging visa, he did not take additional steps by way of representations to the Department to prevent the cancellation of his Student visa or to obtain another Bridging visa before his Student visa and existing Bridging visa ceased to have effect. As a result, he became an unlawful non-citizen. In view of the evidence of Mr Farag, the Tribunal did not consider that the advice in the letter of 20 October 2011, which primarily dealt with the impending cancellation of his Student visa, was sufficiently clear to break the chain of causation.
25		The Tribunal concluded that, taking into account the circumstances which caused Mr Farag to become an unlawful non-citizen, the short time in which he was unlawful and the fact that he acted swiftly to obtain another Bridging visa, the discretion given by s 22(4A) of the Citizenship Act should be exercised in Mr Farag’s favour. The period, being 28 November 2011 to 30 November 2011 inclusive, should be treated as one in which Mr Farag was not present in Australia as an unlawful non-citizen.
26		Because these paragraphs are the subject of specific mention in the notice of appeal I set out in full [32], [43] and [45]-[46] of the Tribunal’s reasons. I also include [31] as that paragraph provides the context for understanding [32].
31.	In Chaudhary and Minister for Immigration and Citizenship [[2010] AATA 1006] Deputy President Handley said:

In my view, as Deputy President Purvis said in Liu, the ordinary meaning of the words ‘administrative error’ in the context of s 22 of the Act should be interpreted as a reference to a mistake or error made by the administrative or executive arm of government which, in this instance, affected the lawfulness of the person’s residence in Australia. The extrinsic material, which the Department has identified and to which reference can be made for the purposes set out above, are the Instructions, the relevant part of which is included at paragraphs [16] and [17] above. I note that the Instructions indicate that the words should be interpreted broadly but the examples given and the tenor of the text suggest, nevertheless, that the error should be interpreted as one made by the administrative or executive arm of government, although not necessarily by the Department itself.
32.	I agree with this statement but add that, in my view, the error may be the provision of incorrect information, including information which is misleading because it is incomplete.  In this regard it is necessary to look to the words used in the statute.  The only qualification of the word “error” is that it must be “administrative”.
…
43.	Taken as a whole, the advice contained in the letter of 10 December 2010 was incomplete and misleading.  For this reason I am satisfied that the provision of such information was an administrative error.
…
45.	Based on his evidence, I am satisfied that Mr Farag genuinely held the belief that if his Student visa was cancelled he would remain a lawful non-citizen until his application for a Protection visa had been determined. There is nothing to suggest that Mr Farag formed this view other than as a result of what he was told in the letter of 10 December 2010. I am satisfied on the balance of probabilities that the advice contained in the letter was the cause of his belief.  In reaching this conclusion, I have taken into account that a reasonable reader of the letter would form the same view.
46.	Further, on the basis of the evidence of Mr Farag, I am satisfied that because he held the view that he was entitled to remain in Australia in accordance with the Bridging visa, he did not take additional steps by way of representations to the Department to prevent the cancellation of his Student visa or to obtain another Bridging visa before his Student visa and existing Bridging visa ceased to have effect.  As a result he became an unlawful non-citizen.

(Original emphasis.)
The notice of appeal
27		The notice of appeal filed on 14 January 2015 stated the following questions of law:
1.	What is the correct construction of the phrase “administrative error” in section 22(4A) of the Australian Citizenship Act 2007.
2.	Whether it is a condition of the existence of discretion under section 22(4A) that the Minister be affirmatively satisfied, on the basis of probative evidence, of the existence of the facts which are necessary to establish a causal link between the relevant administrative error and the person becoming an unlawful non-citizen.
	
28		The grounds relied on, as pressed, were as follows:
1.	The AAT misconstrued the phrase “administrative error” in section 22(4A) at [32] and [43].
1.1	An “administrative error” necessarily involves an administrative action which is erroneous.
1.2	The Tribunal therefore erred in proceeding on the basis that the provision of advice which was misleading, by virtue of being incomplete or unclear, constituted “administrative error”.
2.	…

3.	At [45] and [46], the Tribunal applied a wrong test in determining whether the First Respondent had become an unlawful non-citizen “because of” administrative error, in that it presumed in the absence of evidence that the First Respondent’s state of belief was attributable to omissions from the advice he had received from the Minister’s Department.
4.	The Tribunal applied a wrong test in determining whether the First Respondent had become an unlawful non-citizen “because of” administrative error, in that:
4.1	it concluded that the test was satisfied in the absence of any finding as to how, had he been more fully advised, the First Respondent could have avoided becoming an unlawful non-citizen; or

4.2	alternatively, if such a finding was made, there was no evidence for that finding.
Consideration of the grounds of appeal
Ground 1
29		The Minister accepted in his written submissions that incorrect advice in a letter which was sent to a visa applicant concerning his or her current or future visa status may qualify as “administrative error” within s 22(4A) of the Citizenship Act. However, the Minister submitted, the term “error” could not be stretched to include the provision of advice which was not incorrect in some identifiable and material way. To include within its scope the provision of advice which is “misleading because it is incomplete” was to stretch the language to breaking point, and to make the scope of the provision dependent on an impressionistic judgment. The Minister also submitted that the description “misleading because it is incomplete” could not rationally have been applied to the first letter, dated 10 December 2010. This was because the letter, read with its attachment, was not relevantly “incomplete”: it included a clear statement of the effect which any visa cancellation would have on a Bridging Visa A, together with a statement that that was the class of bridging visa granted to Protection visa applicants. Viewed in that light, the Minister submitted, the gravamen of the Tribunal’s reasoning had to be that the 10 December 2010 letter was misleading because it was not sufficiently clearly expressed or because the relevant warning (which qualified more general statements earlier in the document) was not sufficiently prominent. Thus, the Minister submitted, the Tribunal applied a wrong test, and erred in law, in concluding that “administrative error” had occurred.
30		In oral submissions, senior counsel for the Minister submitted that the error appeared from the words “because it is incomplete” at [32] of the Tribunal’s reasons and the result that the Tribunal reached was one which it could not have reached on the correct construction of the phrase “administrative error”. The Minister accepted that giving wrong information would be an administrative error but, the Minister submitted, it did need to be wrong. The Minister did not submit that it was not open to the Tribunal to read the letter in the way that it did, but the finding that the Tribunal made of incompleteness revealed the test that was truly being applied by it.
31		Mr Farag submitted in his written submissions that the Tribunal did not find that the provision of “information which is misleading because it is incomplete” was a further category of administrative error in addition to the provision of incorrect information. Rather, the Tribunal at [32] spoke of incomplete and misleading information as capable of amounting to “incorrect information”. Mr Farag submitted that the giving of complete information was vital to the administration of the Migration Act because its provisions required action by persons to apply for visas to avoid the status of “unlawful non-citizen” and the mandatory detention which went with it. The provision of information which facilitated or allowed a person to take action to obtain a visa and avoid detention where they were entitled to do so advanced the object of the Migration Act. The “correctness” of information should be assessed according to its facilitating or enabling function and the object of the Migration Act. It was relevant that at the time of the letter of 10 December 2010, the Department was aware that Mr Farag had a Student visa, the cancellation of which would affect the Bridging visa. The proviso suggested by the Tribunal at [34], “provided any substantive visa you hold now or in the future is not cancelled,” would have cured the error.
32		In my opinion, the Tribunal did not err in law in making the finding it did as to the meaning of the 10 December 2010 letter. That finding was open to it. It was open to the Tribunal to find that the letter itself, the part addressed specifically to Mr Farag, meant that Mr Farag would remain a lawful non-citizen until his application for a Protection visa had been determined. The letter stated: “This [Bridging] visa allows you to remain lawfully in Australia while your application is being processed.” It was also open to the Tribunal to conclude, as it did, that, taken as a whole, the advice contained in the letter of 10 December 2010 was wrong, in that it was incomplete and misleading, and that the provision of such information was an administrative error.
33		As to the misconstruction of the words “administrative error” in s 22(4A) of the Citizenship Act, the reasons of the Tribunal are to be read fairly and not over-zealously: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Having found that the advice in the 10 December 2010 letter sent by the Department was wrong, in that it misstated whether the Bridging visa allowed Mr Farag to remain lawfully in Australia while his application was being processed, it was not a misconstruction of the words “administrative error” for the Tribunal to endeavour to explain why it had concluded that the letter was incorrect or wrong in that respect. The only parts of the reasoning of the Tribunal which were said by the Minister to evidence an error of law were the references in [32] and [43] to information which is “incomplete”. Read in context, in my opinion, those references do not establish that the Tribunal misunderstood the words “administrative error”. I reject the submission on behalf of the Minister that the Tribunal construed “administrative error” as meaning lack of clarity or prominence or poor expression.
34		I reject ground 1.
Ground 3 
35		This ground centred on [45] of the Tribunal’s reasons. The ground pleaded was that the Tribunal applied a wrong test. The Minister submitted the Tribunal failed to address two essential integers of the question whether Mr Farag had become a non-citizen “because of” the administrative error the Tribunal had found. The Minister submitted that some probative material was needed to found the subsequent finding that Mr Farag’s belief was induced by the letter of 10 December 2010. The Tribunal misconstrued its fact-finding role in proceeding on the basis that the necessary causal link could be assumed.
36		Mr Farag submitted that it was open on the evidence for the Tribunal to find that Mr Farag’s belief that he would remain a lawful non-citizen until his application for a Protection visa had been determined was as a result of what he was told in the 10 December 2010 letter. The Tribunal accepted Mr Farag’s evidence of his belief. The Tribunal’s assessment of what the 10 December 2010 letter meant was also open from the contents of the letter itself. In the absence of a competing hypothesis of the source of Mr Farag’s belief it was reasonable for the Tribunal to draw the inference that Mr Farag formed this view from what was said in the 10 December 2010 letter.
37		In my opinion, the Tribunal did not in [45] apply a wrong test because, in my opinion, it did not presume, in the absence of evidence, that the Mr Farag’s stated belief was attributable to omissions from the advice he had received from the Minister’s Department. The belief in question was that if Mr Farag’s Student visa was cancelled he would remain a lawful non-citizen until his application for a Protection visa had been determined. Part of the reasoning of the Tribunal was that a reasonable reader of the 10 December 2010 letter would form the same view. 
38		Insofar as ground 3 was based on no evidence, in particular no evidence that Mr Farag had read, or had read to him, the 10 December 2010 letter, in my opinion there was evidence of that fact. Indeed the evidence given by Mr Farag in the Tribunal in cross-examination, now relied on by the Minister, was directed to the opposite proposition, that is that Mr Farag did know of the contents of the 10 December 2010 letter at the relevant time and had understood the later qualification to the body of the letter said by the Minister to have been made by the attached Form 1024i. The relevant questions and answers were as follows:
Mr Farag, if you could turn to the attachment which is the fourth page in on the document you have in front of you. It’s titled Bridging Visas and Form 1024I. So do you recall receiving this attachment with that letter?
I think I remember I receive this but generally I received it through the agent so any correspondence that I had received I would show it to the agent to translate for me.
But do you remember seeing this document?
I am not sure I have seen it but I would suggest that as long as it came along with the letter I must’ve seen it.
39		I reject ground 3.
Ground 4
40		This ground centred on [46] of the Tribunal’s reasons. Again, the ground pleaded was that the Tribunal applied a wrong test. The Minister submitted that to regard the “misleading” character of the 10 December 2010 letter as a cause of Mr Farag having become an unlawful non-citizen necessarily involved a conclusion or assumption that, had he been more completely advised by the Department, he could and would have done something differently so as to avoid becoming an unlawful non-citizen. The Tribunal referred to Mr Farag not having taken “additional steps by way of representations” to avoid that outcome. However, it made no findings as to: (a) whether there was anything Mr Farag could have done, after 10 December 2010, to avoid breaching a condition of his Student visa, or, having breached that condition, to persuade the Minister’s delegate not to cancel the visa; or (b) whether it was possible for Mr Farag to apply for a further Bridging visa, to take effect before the cancellation of his Student visa, what the prospects of such an application might have been, and whether any such additional Bridging visa could have continued in effect after the cancellation of his Student visa. To hold that the relevant causal link existed without making an assessment of what steps (if any) were open to Mr Farag to avoid becoming an unlawful non-citizen in the relevant period, and the likelihood of him taking such steps, was to misunderstand the nature of the issue and to err in law.
41		Mr Farag submitted that once the giving of incorrect information was accepted as an administrative error, then even where the final or effective cause of the cancellation of the Student visa was the breach of a condition of the visa, the actual reliance on incorrect information may still be a cause for the purposes of s 22(4A) of the Citizenship Act. Mr Farag submitted that it would be different if the cancellation of his Student visa was inevitable and there was nothing he could have done to achieve his intention not to allow the student visa to be cancelled in the first place. However, Mr Farag’s reliance on the misinformation in the first letter of 10 December 2010 preceded his breach of the Student visa condition in May 2011. The Tribunal accepted Mr Farag’s evidence that he would not have let the Student visa be cancelled in the first place had he known he would lose the Bridging visa as well.
42		In my opinion, the reasons of the Tribunal should be understood in context. It is not clear what course the appeal took in the Tribunal: the thrust of the Minister’s case in the Tribunal appears to have been that there was no administrative error because Mr Farag read and understood the letter of 10 December 2010 as not meaning that the Bridging visa allowed Mr Farag to remain lawfully in Australia while his application was being processed. The point was summarised in a question put to Mr Farag: “on 10 December 2010 … you were aware that if your student visa was cancelled that your bridging A visa would also cease?” 
43		To the extent evidence is necessary, outside the events which happened in relation to the grant to Mr Farag of a Bridging visa on 30 November 2011 to which I will come, the central evidence in relation to the first alternative in [46] of the Tribunal’s reasons was as follows, the reference to 20 October 2011 being to the letter of notice of intention to consider cancellation under s 116 of the Migration Act:
MS CARR: … Mr Farag, I put to you that as at 20 October 2011 you were aware that if your student visa was cancelled that your bridging visa A would also cease.
INTERPRETER: I wasn’t aware it’s going to be like this otherwise I wouldn’t let that visa be cancelled in the first place.
…
DEPUTY PRESIDENT: … So just to get that answer straight. “I wasn’t aware it was going to be like this otherwise I would not have let my student visa be cancelled”, is that right?
INTERPRETER: Yes, absolutely, and I always thought that my study in the TAFE was covered but then they told me that it wasn’t covered by that visa.
DEPUTY PRESIDENT: By which visa?
INTERPRETER: Both bridging visa and student visa because I was studying at the time and both visas were valid.
44		I understand this to mean that, as the Tribunal accepted and found, Mr Farag would have taken additional steps to prevent the cancellation of his Student visa. In my opinion, read in context, the Tribunal was referring to what Mr Farag, if he had understood that the cancellation of his Student visa would have made him a prohibited non-citizen, could have done to put better evidence before the decision-maker relevant to the claim of exceptional circumstances, his medical condition, which the decision-maker found was not made out for lack of expert medical evidence: see the letter dated 28 November 2011 parts of which I have set out at [12] above. This conclusion is sufficient to reject ground 4.
45		The second and independent alternative in [46] of the Tribunal’s reasons was that because of the administrative error, Mr Farag did not to take additional steps to obtain another Bridging visa before his Student visa and existing Bridging visa ceased to have effect. I read this conclusion as including obtaining another Bridging visa to take effect on the cancellation of Mr Farag’s Student visa. The submissions on behalf of the Minister did not explain why the almost immediate grant of a Bridging visa on 30 November 2011 could not have been made at the same time as the cancellation of the Student visa on 28 November 2011 and so as to take effect on that cancellation. The submissions on behalf of the Minister did state that a new Bridging visa A, B or C (assuming one to be available) would have ceased when the Student visa was cancelled (see Migration Regulations 1994 (Cth) Sch 2, clauses 010.511(vi), 020.511(vi), 030.511(viii), but because this submission proceeded by reference to the grant of a Bridging visa prior to the cancellation of the Student visa, this does not negate the position to which the Tribunal was adverting at [46]. 
46		The submissions on behalf the Minister also stated that before he became an unlawful non-citizen, Mr Farag appeared at least prima facie unlikely to have met the criteria for a Bridging (Prospective Applicant) visa (Sch 2 clause 040.213), a Bridging (Non-Applicant) visa (Sch 2 clause 041.211), a Bridging (General) visa (Sch 2 clause 050.211), a Bridging (Protection Visa Applicant) visa (Sch 2 clause 051.211 and reg 2.20(7)-(11)) or a Bridging F visa (Sch 2 clause 060.211). Again, if this is so, it does not explain how it was that Mr Farag, almost immediately on the cancellation of his Student visa, was invited to apply and did apply for, and was granted a further Bridging visa. There was no suggestion that that grant was in error.
47		I reject ground 4.
48		In relation to both ground 3 and ground 4, the Minister relied on FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 310 ALR 1 (FTZK). In relation to ground 3, the Minister submitted that FTZK, at [13] per French CJ and Gageler J, at [40] per Hayne J and at [96] per Crennan and Bell JJ, stood for the proposition that some probative material was needed to found the subsequent finding by the Tribunal that Mr Farag’s belief was induced by the letter. In relation to ground 4, the Minister submitted that FTZK, at [6], [13] and [19] per French CJ and Gageler J, at [40] per Hayne J and at [96] per Crennan and Bell JJ, meant that where, as here, the Tribunal held that the relevant causal link existed without making an assessment of what steps (if any) were open to Mr Farag to avoid becoming an unlawful non-citizen in the relevant period, and the likelihood of him taking such steps, this was to misunderstand the nature of the issue and to err in law.
49		On the Tribunal’s reasons and the evidence available to it as to the events which happened, what was said in FTZK, about some probative material being needed or the absence of an assessment of what steps were open to Mr Farag, does not arise. I would add that the reasoning in FTZK turned on the meaning of Art 1F(b) of the Refugees Convention, especially the words: “there are serious reasons for considering”. See the reasons, for example, of French CJ and Gageler J at [6], [13]-[14], [17], [19] and [31]-[32]; of Hayne J at [40] and [43]; and of Crennan and Bell JJ at [67] and [96].
Conclusion
50		The appeal should be dismissed, with costs. It is not necessary to consider Mr Farag’s submission that if the appeal was upheld he should be granted a costs certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth).
	
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.	

Associate:

Dated:	30 June 2015