El Samad v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 337
•14 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
El Samad v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 337
File number(s): SYG 1361 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 14 March 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal cancelling student visa –whether Tribunal erred in exercise of discretionary power to cancel visa – whether Tribunal erred in dealing with medical evidence – no jurisdictional error established – application dismissed – costs ordered Legislation: Migration Act 1958 (Cth) ss 116(1), 116(1)(b), 476
Migration Regulations 1994 (Cth) cl 8202 of Schedule 8
Cases cited: Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 5 March 2025 Place: Parramatta Counsel for the Applicant: Mr D Godwin Solicitor for the Respondents: Ms K Pieri (MinterEllison) ORDERS
SYG 1361 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MAHMOUD EL SAMAD
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs in the sum of $5,900.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 4 June 2020, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 30 April 2020. The Tribunal affirmed the decision of a delegate of the first respondent cancelling the applicant’s subclass 573 Higher Education Sector visa under s 116(1) of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
In May 2016, the applicant was granted a subclass 573 Higher Education Sector student visa (2016 Visa) to undertake a Bachelor of Business at an educational institution in Australia (Bachelor Course).
On 19 April 2017, the applicant's enrolment in the Bachelor Course was cancelled.
On 1 December 2017, the Department of Immigration and Border Protection (Department) sent the applicant a Notice of Intention to Consider Cancellation of the 2016 Visa under s 116 of the Act (NOICC) on the basis that the applicant had not complied with condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) which applied to the 2016 Visa. Condition 8202(2) required the visa holder to be “enrolled in a registered course”. Since the applicant was no longer enrolled in a registered course, he appeared to not comply with condition 8202.
On 8 December 2017, the applicant provided a written response to the NOICC. The applicant claimed that a failed business venture caused him financial and personal stress and led to a period of depression. In this period, the applicant’s enrolment in the Bachelor Course was cancelled. The applicant’s response attached a progress note from Dr Aiman Alsayed (general practitioner) dated 7 December 2017 and some related documents.
On 27 February 2018, a delegate of the first respondent made a decision to cancel the 2016 Visa under s 116(1) of the Act.
On 6 March 2018, the applicant applied to the Tribunal for review of the delegate's decision.
On 31 January 2020, the Tribunal wrote to the applicant and invited him to attend a hearing on 3 March 2020 to give evidence and present arguments relating to his case.
On 3 March 2020, the applicant attended a hearing before the Tribunal. The applicant was accompanied by a representative.
On 30 April 2020, the Tribunal affirmed the delegate's decision to cancel the 2016 Visa.
TRIBUNAL’S DECISION
The Tribunal stated that the issues before it were whether the applicant breached condition 8202 of Schedule 8 which attached to the applicant’s visa and, if so, whether the Tribunal should exercise the discretionary power under s 116(1) of the Act to cancel the visa.
The Tribunal, for reasons explained in its decision, was satisfied that the applicant had not complied with condition 8202 and so the ground for cancellation in s 116(1)(b) was satisfied and the power in s 116(1) to cancel the visa was enlivened.
The Tribunal then considered whether to exercise the power to cancel the visa. The Tribunal stated that it had regard to the material provided by the applicant as to why the visa should not be cancelled, and policy guidelines contained in the Department’s Procedures Advice Manual (PAM3) which set out nine matters decision-makers should consider in deciding whether to exercise the power to cancel a visa under s 116. The Tribunal considered each of the nine matters in PAM3. The Tribunal then concluded that “considering the circumstances as a whole, the Tribunal is satisfied the visa should be cancelled”.
PROCEEDINGS IN THIS COURT
Steps up to 5 March 2025
On 4 June 2020, the applicant lodged an application in this Court which sought judicial review of the Tribunal’s decision.
Following a period of inactivity, on 14 January 2025 the parties were notified that the matter was listed for hearing on 5 March 2025.
On 31 January 2025, the applicant filed an amended application (Amended Application) which pressed a single ground of review (reproduced as written):
1.The Tribunal decision was legally unreasonable
Particulars
The Tribunal placed little weight on a psychological assessment made by Dr Aiman Alsayad on 7 December 2017 since the consultation took place after the service of the NOICC and it is the applicant’s fear of cancellation of his visa which is likely to have motivated him to seek the consultation rather than any concerns of the cessation of his studies.
The medical assessment made by Dr Alsayad was that the applicant was suffering an anxiety and depression disorder that started 15 March 2017 and got worse recently.
It was legally unreasonable for the Tribunal not to have regard to this diagnosis (which is the practical outcome of giving it “little weight”) on the basis of what might have motivated the applicant to attend the doctor.
On 5 February 2025, the applicant filed a written submission. On 19 February 2025, the first respondent filed a written submission.
Hearing on 5 March 2025
At the hearing in this Court on 5 March 2025, David Godwin of counsel appeared for the applicant. He made oral submissions which supplemented his written submission filed on 5 February 2025. The submissions are referred to below. Kerrie Pieri of MinterEllison appeared for the first respondent. She made oral submissions which supplemented the first respondent’s written submission filed on 19 February 2025.
CONSIDERATION
The applicant seeks to establish jurisdictional error in relation to the manner in which the Tribunal dealt with some medical evidence before it. To appreciate the issue, it is useful to understand the context in which the medical evidence came before the Tribunal.
On 1 December 2017, the Department sent the NOICC to the applicant. The NOICC stated in part that, if the delegate decided there is a ground for cancellation of the visa, the delegate will consider whether there are reasons not to cancel the visa and, in relation to this task, will take into account matters such as:
· the purpose of your travel to and stay in Australia
· the extent of compliance with any conditions subject to which the visa was granted
· the degree of hardship that may be caused to you and any family members if the visa is cancelled
· the circumstances in which the ground for cancellation arose
· your past and present behaviour towards the department
· the legal consequences of a decision to cancel the visa
· any other matters
These are seven of the nine matters or factors in PAM3 referred to in paragraph 14 above.
By letter dated 7 December 2017, the applicant responded to the NOICC. The applicant explained that in June 2016 he purchased a business using money borrowed from family overseas to purchase the business, but after a few months the business started to lose money. The applicant then experienced “tremendous” pressure as he tried to keep the business afloat and “make sure that I cover my debts to include the rent, electricity and cost of merchandise”. He stated that he “felt incredibly depressed”, the “pressure caused me incredible depression”, and he “was consumed by shame because of my failure”. The applicant explained that, in this period, the university cancelled his enrolment in the Bachelor Course.
The applicant explained that, in the period referred to above, he refused to see a doctor because he believed there was a stigma in seeing a doctor for depression, but he now realises he should get medical help. The applicant continued:
I am seeking more help now and because of that and some good friends I do have a positive outlook on life once more. I went to a doctor and after describing what has happened with me he recommended me to see a psychiatrist to continue improving …
The applicant attached to his letter a copy of “Progress notes” from Dr Aiman Alsayed, a referral letter from Dr Alsayed to Mr Medhat Metry dated 7 December 2017, a GP mental health care plan prepared by Dr Alsayed, the applicant’s answers to a questionnaire about his mental health, and a prescription for Pristiq which is a drug used in the treatment of depression.
Information in the “progress notes” included:
(a)The applicant reported a “6 months history” of symptoms including “difficulty concentrating, remembering details and making decisions”, and “feelings of guilt, worthlessness and/or helplessness”.
(b)Dr Alsayed recorded that, on examination, the applicant “was depressed and anxious”.
Dr Alsayed commenced his referral letter to Mr Metry, who appears to be a psychologist, by requesting that Mr Metry see the applicant “for opinion and management of anxiety and depression disorder started 6 months ago”.
In light of the manner in which the Tribunal dealt with the above medical evidence and the applicant’s complaint in this Court about the manner in which the Tribunal dealt with the medical evidence, it is relevant to note that:
(a)The applicant, in his letter dated 7 December 2017, did not state that his mental health disorder caused him to cease attending the Bachelor Course. Instead, it was the applicant’s decision to purchase a loss-making business in June 2016 which then required a significant amount of the applicant’s time which caused the applicant to cease attending the Bachelor Course.
(b)The reason the applicant provided the medical evidence to the Department was not to prove that he suffered a mental health disorder in the past, but to demonstrate that he was now “seeking more help” to overcome the mental health disorder.
(c)Based on the applicant’s history recorded by Dr Alsayed in his progress notes, the applicant’s symptoms commenced six months earlier, which would have been about June 2017. The applicant’s enrolment in the Bachelor Course was cancelled in April 2017. So, based on the history provided by the applicant to Dr Alsayed, the symptoms of depression commenced after the applicant ceased attending the Bachelor Course.
As explained in paragraph 14 above, the Tribunal, in considering whether to exercise the discretionary power to cancel the applicant’s visa, addressed the nine factors listed in PAM3. The fourth factor is: (Circumstances Factor)
The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing …
The Tribunal, in considering the Circumstances Factor at [30]-[37], considered the medical evidence referred to in paragraph 24 above.
The Tribunal commenced consideration of the Circumstances Factor at [30] by stating:
In written submissions and in his oral evidence the applicant claims an ill-fated business transaction (the purchase of a small store) severely strained his and his family’s finances, resulting in him enrolment being cancelled and leading to his depression due to his worsening financial and personal situation. As previously notes the applicant’s decision to embark on this business venture was entirely his own. It is a curious decision given that the purpose of his being granted a Student visa was for him to engage in studies in order to achieve an educational outcome.
There is force in these observations. Further, based on the information provided by the applicant in his letter dated 7 December 2017, I consider that it was open to the Tribunal to conclude the cancellation of the applicant’s enrolment in the Bachelor Course contributed to the applicant’s depression, rather than depression leading to cancellation of the applicant’s enrolment.
In relation to the medical evidence, the Tribunal stated at [32]:
With respect to his claims of psychological stress, the applicant has provided no evidence of his undertaking ongoing mental health assessment or financial counselling to assist him in resolving his business woes or indeed to assist him with any difficulties arising from his studies. There is a referral from his general practitioner dated 7 December 2017, with evidence of a mental health assessment and referral to a psychologist. However [the] Tribunal places little weight on this psychologist assessment since the consultation took place after the applicant had been served with a NOICC and it is the applicant’s fear of cancellation of his visa which is likely to have motivated him to seek the consultation rather than any concerns over cessation of his studies. Further there is no evidence that the applicant has pursued any ongoing psychological treatment.
In relation to the Circumstances Factor as a whole, the Tribunal concluded at [34] that it “is not satisfied the circumstances in which the ground for cancellation arose were exceptional and beyond the applicant’s control”.
Once one understands the reason the applicant provided the medical evidence to the Department and the content of the medical evidence, the relevance of the medical evidence to the Tribunal’s decision appears to be limited.
The applicant contends in the particulars to the ground in the Amended Application that “it was legally unreasonable for the Tribunal not to have regard to this diagnosis (which is the practical outcome of giving it little weight) on the basis of what might have motivated the applicant to attend the doctor”. There are two problems with this contention. First, it is not correct that the Tribunal had no regard to the medical evidence, or had regard to the medical evidence but placed no weight on it. The Tribunal at [32] placed some weight, albeit “little weight”, on the medical evidence. Second, the Tribunal at [32] provided two reasons for placing little weight on the medical evidence. The second reason, overlooked in the particulars to the ground in the Amended Application, is that “there is no evidence that the applicant has pursued any ongoing psychological treatment”. In circumstances where a reason the applicant provided the medical evidence to the Department was to prove he was “seeking more help” so that he could “continue improving”, that the applicant did not provide evidence that he had obtained ongoing psychological treatment in the period of over two years between December 2017 and April 2020 undermined the strength of the applicant’s claim that he would seek help in the form of psychological treatment so that he could “continue improving”. I consider that it was clearly open to the Tribunal to place “little weight” on the medical evidence for the reasons it gave at [32].
It is stated at AS [7] that “it was legally unreasonable for the Tribunal not to accept the diagnosis of a depressive disorder that predated the issue of the NOICC”. I do not accept that the Tribunal rejected the applicant’s claim that he developed depression. The Tribunal at [30] recorded the applicant’s claims that he developed depression. There is no express finding by the Tribunal rejecting this claim. The Tribunal’s decision to place “little weight on [the] psychological assessment”, for the reasons it gave, did not involve a rejection of the applicant’s claim that he developed depression.
The applicant at AS [8] relies on a proposition in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 at 522 that “where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of his own”. It is contended at AS [9] that “the Tribunal has substituted its own theory that any psychological issue that the applicant had was attributable to the issue of the NOICC”. This contention involves a mis-reading of the Tribunal’s reasons at [32]. The Tribunal did not find, or express an opinion, that any psychological issue the applicant had was attributable to the NOICC. The facts in Fuduche are markedly different to the facts in the present matter.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
COSTS
At the end of the hearing, I invited submissions from the parties on costs. Ms Pieri sought costs in the sum of $5,900. Mr Godwin did not oppose this amount. I will order that the applicant pay the first respondent’s costs in the sum of $5,900.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 14 March 2025
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