Gao v Minister for Immigration
[2011] FMCA 636
•4 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GAO v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 636 |
| MIGRATION – Application to review decision of Migration Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), s.116 Education Services for Overseas Students Act 2000 (Cth), ss.19, 20 Migration Regulations 1994 (Cth), reg. 2.43 |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 NAJO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 356 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 |
| Applicant: | JIE GAO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 214 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 4 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2011 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 214 of 2011
| JIE GAO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for review of a decision of the Migration Review Tribunal. The Tribunal affirmed the decision of a delegate of the first respondent to cancel the applicant’s Subclass 573 Higher Education Sector Student Visa by decision dated 12 January 2011.
The Tribunal reasons for decision record the background to this application. The applicant, a citizen of China, arrived in Australia as the holder of a student visa. Relevantly, in 2009 she was enrolled to study a Master of Professional Accounting (Extension) through the University of New South Wales (UNSW).
On 3 March 2010, her education provider certified her for the Master of Professional Accounting (Extension) course as not achieving satisfactory course progress for s.19 of the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act), and Standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training for Overseas Students.
The applicant was given notice by UNSW under s.20 of the ESOS Act which included particulars of the fact that the certificate gave rise to a breach of condition 8202 of her visa. The Department issued a notice of intention to consider cancellation under s.116 of the Migration Act 1958 (Cth) (the Act) on 31 March 2010. It gave the applicant an opportunity to comment. She provided written comments in an undated letter which appears in the Court Book.
She referred to her completion of a Bachelors degree in Thailand in which she obtained second class honours. She explained that she had separated from her partner of four years and referred to the impact on her of that separation. She claimed that she was in China when told she was accepted by the University and that she missed a lot of classes, including the opportunity to know about school discipline and minimum requirements for the visa. She also claimed that exemptions had been approved for four subjects and that as she chose two exempted subjects in 2009 she therefore did not need to be examined on them, but the university still counted them as failures because she did not attend the final exams.
The applicant also explained that she had failed Information Systems and claimed that she had appealed but had received no reply. She gave reasons for why she failed two other subjects, based on their difficulty.
She claimed she could not concentrate on study in first year of her UNSW course, that she was an alcoholic and that she had tried to commit suicide, but that subsequently she had gained confidence and had healed herself and that she was happy in a new study environment.
The Department was provided with a copy of the applicant's academic transcript for 2009 which showed she failed three out of four subjects in each semester.
The delegate cancelled the applicant's subclass 573 visa under s.116 of the Act on the basis that she had not complied with condition 8202 which attached to her visa, and that the breach of the condition was not due to exceptional circumstances beyond the applicant's control. The applicant sought review by the Tribunal.
The Tribunal obtained further information from UNSW in relation to whether or not the applicant was exempted from undertaking assessment in four courses as claimed; the impact of a record of failure in two of those courses on the certification; whether there was any error in the certification; whether Ms Gao had the opportunity to have issues affecting her academic progress, including the issue of exemptions, considered by the University before certification; and details of any warnings issued to her and records of appeals to which she had access. The University responded by letter of 18 November 2010.
The University confirmed that Miss Gao had four exemptions, but also that she had enrolled in and failed two of those courses which she had apparently undertaken notwithstanding the exemption. As she had not completed the courses, they counted towards the exclusion status. The University confirmed that no error had been made in calculating her status. It provided details of the available appeal process and copies of correspondence sent to the applicant in relation to her exclusion and an unsuccessful appeal in relation to Semester Two, 2009. The Tribunal recorded that a copy of this letter was provided to the applicant at the Tribunal hearing.
The Tribunal invited the applicant to attend a Tribunal hearing. Miss Gao attended the hearing. The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. Also before the court is a post-hearing written submission, dated 23 December 2010 provided by the applicant to the Tribunal about her background, the impact of the break up with her boyfriend and other events.
In support of the review application, Miss Gao’s migration agent also provided the Tribunal with a psychologist's report, dated 2 October 2010 which is before the court. The report, by Mr A Stzemenyei, describes the reason for referral as a request by Miss Gao for a psychological assessment with regard to her “current state of mental health”. It set out her reported history, including a break-up with her boyfriend in early 2009 and the claimed devastating impact on her, her failure in her UNSW course and her change to the University of Newcastle. It also described an incident involving a man Miss Gao met over the summer of 2009/2010, which resulted in blackmail and other adverse consequences for her.
The psychologist reported that the applicant “did not attend any professional assessment or treatment during the period of early 2009 till mid 2010, during which time the described stressor occurred, so formal assessments are not available for this period”. She described low moods, ruminative thinking, lack of sleep, concentration, excessive comfort eating, indicating that this was a “stressful and depressing period” for her. The psychologist also said that the break-up with the boyfriend “seems to have been quite devastating” for Miss Gao, and that the incident in 2010 was “genuinely very stressful and humiliating” for her.
Mr Szemenyei found, however, that Miss Gao’s self-report and general presentation indicated that she was working through these difficulties and that her moods and coping had improved, as had her university results. The psychologist’s clinical impressions were that Miss Gao still showed some signs of sadness, anxiety and embarrassment, but that there was no evidence of current serious mental health problems or risks to her safety. Reference was made to the fact that during the period of 2009 to mid-2010, Miss Gao had performed poorly at university. This was said to have been in the context of “heightened stress and depressive symptoms”. Miss Gao was said otherwise to have had a history of performing well in her studies.
The report concluded that given Miss Gao’s general academic history, her return to more normal level of moods and functioning and her improved understanding of how to seek help if needed, she could be expected to perform at least adequately at her studies if given the opportunity.
In its reasons for decision the Tribunal set out the relevant law in relation to cancellation of student visas. It noted in particular that under condition 8202 in Schedule 8 to the Migration Regulations1994 (Cth), the visa holder meets the requirements of subclause 8202(3) if the education provider has not certified the holder for a registered course undertaken by the holder as not achieving satisfactory course progress or as not achieving satisfactory course attendance.
The Tribunal pointed out that it was certification by the education provider as to breach of its course progress policies that constituted the breach of condition 8202, not the unsatisfactory course progress or attendance, and that the Tribunal's task was to determine that a certificate on its face was of a kind that engaged condition 8202(3).
The Tribunal went on to state that if it was satisfied that the applicant did not comply with condition 8202 it was then necessary (see s.116(1)(b) and s.116(1)(3) of the Act, to have regard to reg.2.43 of the Migration Regulations1994 (Cth). Regulation 2.43 relevantly provides that for s.116(3) of the Act, the circumstances in which the Minister must cancel a Student (Temporary) Class TU visa relevantly are that the Minister is satisfied that the visa holder has not complied with condition 8202 and that the non‑compliance was not due to exceptional circumstances beyond the visa holder's control.
The Tribunal set out the law in relation to the meaning of “exceptional circumstances”. It also referred to Ministerial Guidelines in that respect, before turning to the claims and evidence before it.
It then set out in detail what had occurred in relation to the applicant's study and the issue of the certification. It referred to the evidence provided by the applicant, both to the Department and to it, including her submissions, medical report and transcripts, as well evidence about her study, including her results in 2010. It also set out in full the psychological report provided to the Tribunal.
The Tribunal summarised what occurred at the Tribunal hearing, a matter to which I will return to in relation to the grounds relied on by the applicant, it also set out in full the written submissions provided after the hearing.
The Tribunal considered first the certification by the education provider. It was of the view that a “relevant and valid” certification had occurred, resulting in the applicant breaching condition 8202(3) of the visa she held. It addressed the fact that the applicant had raised the issue that she had been granted exemption for four subjects during her enrolment at UNSW, but was recorded as failing two of those subjects. The Tribunal found that the enquiries with UNSW made it clear that these subjects were recorded as having been failed because the applicant “enrolled in them but did not withdraw from them by the required date. Nor did she put material before UNSW that they should not be recorded”.
In any event, the Tribunal went on to find that while failures in these subjects were recorded as part of Miss Gao’s academic transcript, her failure in these subjects did not result in the certification by UNSW as they were in subjects studied in Semester One of 2009, whereas the certification related to failures recorded during Semester Two 2009. In reaching this conclusion the Tribunal had regard to UNSW policy that if a postgraduate student failed 18 units of credit in a semester this was unsatisfactory progression. The Tribunal found that this had occurred for the applicant in Semester Two 2009. Hence the Tribunal found while the recording of failures in subjects for which the applicant had received exemptions may have contributed to the overall consideration of her academic progress, the certification issued on 3 March 2010 was validly issued because she had not complied with the University's policy for progression of a postgraduate student for the previous semester, that is Semester Two 2009. The Tribunal concluded that the applicant had not complied with condition 8202(3).
The Tribunal then addressed what it described as the “range of reasons” submitted by the applicant for her non‑compliance. However it did not accept the reasons given for the applicant’s failure to achieve better course progress during her study at UNSW were the genuine reasons for her failure to comply with condition 8202(3). It was of the view that “if the applicant had been adversely affected by the break-up by her boyfriend as claimed she would have put those matters before the UNSW authorities to be considered prior to the point of her being subject to a negative certification”. It found that there appeared to have been “essentially no attempt” by her during 2009 to deal with her circumstances before the University or to seek treatment in respect of her claimed difficulties before being issued with the notice.
The Tribunal addressed Miss Gao’s claim that her personality, reaction to the break-up and her lack of knowledge of relevant processes were the reasons for this. However, it was of the view that Miss Gao did not put any of these matters before the University authorities “because they were not in fact the reason for her poor performance”. It found the available evidence strongly supported the conclusion that she had “simply enrolled during 2009 a course that was too difficult for her and which she was not capable at the time of progressing in satisfactorily”.
The Tribunal did not find it believable that a person of 28 years of age, (as the applicant was at the time), who had a visa to study in Australia and who had undertaken 12 months English language tuition at UNSW prior to 2009, would be unable to negotiate systems at the University, such that she was not capable of putting relevant matters before the authorities.
It was of the view that were the matters raised of such significance to the applicant's academic performance, she would have put them before the University authorities in a timely fashion, that she was aware that appeals processes existed, and had acknowledged that she did appeal against her marks in one subject. It found that she could offer no plausible explanation as to why she would not have followed up even that application. The Tribunal was of the view that the applicant did not pursue such processes with any rigor because “she was aware the course was too difficult for her and had decided by the end of 2009 not to pursue it”.
The Tribunal addressed the applicant's claims that it was her upbringing, family relationships and past reliance on her boyfriend which saw her unable to study and put matters before the University in a timely way. It referred to the psychological assessment as follows:
Andrew Stzemenyei has provided a cogent assessment of the applicant's background and circumstances and his understanding of the impact of her break-up with her boyfriend and the more recent incident [which he described]. He notes that the signs of sadness, anxiety and embarrassment she exhibited would be expected but he did not believe there was evidence of current serious mental health problems or risk to the applicant's safety. While his assessment is in accordance with the claims the applicant now makes, it does not in the Tribunal's view overcome the difficulties identified above.
The Tribunal did not accept that the factors put forward by the applicant had influenced her study or capacity to deal with the consequences of her poor study as claimed. It had regard to the fact that she had been able to establish her life in three separate countries before 2009 (a reference to the fact that she had lived in China and studied in Thailand before coming to Australia) and that in 2008 she decided to leave her boyfriend in Thailand and pursue further studies in Australia. It did not believe that the applicant would have undertaken this course of action if she had been as dependant on her boyfriend and incapable of independent action as she claimed.
The Tribunal was of the view that while the applicant’s break-up with her boyfriend would have been upsetting for her, it was not a reason for her failure to make satisfactory course progress. It was of the view that she simply could not, during 2009, deal with the course content and as a result did not make satisfactory progress.
The Tribunal had regard to the applicant's oral evidence and post-hearing submissions about mistreatment by a male classmate early in her study and a friend who had borrowed money but did not repay money to her. It accepted these matters were undoubtedly distressing to her, but did not believe they affected her study in the way claimed, having regard to the fact they were not put before the University for consideration as reasons for her poor progress and that she had only made reference to their impact very late in the consideration of her application.
The Tribunal continued at paragraph [73] of its decision:
The applicant's subsequent study also supports the conclusion that it was in fact the nature of the course which resulted in her not achieving satisfactory progress, rather than the range of other matters to which she has referred. The applicant held in 2009 a Bachelor in Business Administration/International Business after six Semesters of study through Siam University in Bangkok. She commenced study in a Masters of Professional Accounting (Extension) at UNSW in 2009 and passed only two courses, being Legal Foundation for Accountants and Corporate Accounting And Regulation. After ceasing her study at UNSW she pursued study at the University of Newcastle and failed all subjects in her initial Semester of study, of post graduate study, all subjects related to business, finance or company law.
In the Tribunal's view the applicant has essentially been studying at postgraduate level similar subjects for two years. She has now provided evidence of having achieved passes in the subject attempted at the University of Newcastle in the second Semester of study there. In the Tribunal's view, the length of time that the applicant has been studding this material in Australia and the difficult issues encountered in passing relevant and related subjects indicates that her performance during 2009 was poor because the content involved was beyond her capabilities.
In any event, the Tribunal also found that the applicant's break up with her boyfriend could not be considered an “exceptional circumstance” beyond her control. It found that the notion that in one's mid-twenties leaving one's boyfriend or girlfriend to take up lengthy residence in another country may put stress on the relationship was not exceptional, and neither was the fact that the relationship may actually cease during that period. While the Tribunal accepted that it was no doubt extremely upsetting for the applicant, it did not believe that the breakdown of her relationship was an exceptional circumstance beyond her control.
The Tribunal addressed the applicant's claim that she did some “stupid” things after the breakdown of her relationship, including excessive alcohol consumption and seeking other relationships quickly which resulted in negative consequences for her and also loaning money to a person who did not return it. The Tribunal found that while these things were regrettable, they were not, in its view, exceptional circumstances beyond the applicant's control which influenced her non-compliance with condition 8202. It found that such actions in response to the end of a relationship were “not uncommon” and that the applicant had taken no action to seek treatment in relation to these issues. The Tribunal considered the applicant’s attempt at self-harm in 2009, but found that it was treated quickly and that she took no action to put these matters before University authorities or to seek ongoing assistance of any sort during 2009. It found that these were not matters which were exceptional circumstances beyond the applicant's control as contemplated by the legislation.
The Tribunal stated that there appeared “no doubt” that the applicant had been subject to “an usual and upsetting situation” in 2010 (which it described) that would be distressing and have an impact on her as noted by her psychologist. It expressed the hope “that those assisting the applicant have taken [steps] sic to protect her and to advise her of appropriate mechanisms for reporting the matter”, but found that as these events occurred in 2010 they could not be considered exceptional circumstances beyond her control affecting her compliance with condition 8202 in 2009.
The Tribunal was satisfied that the applicant’s non‑compliance with condition 8202(3) was not due to exceptional circumstances beyond her control, but rather arose because she unfortunately selected a course which was beyond her capabilities and was not able to meet the requirements for course progress. The Tribunal affirmed the decision of the delegate to cancel the applicant's visa.
The applicant sought review by application filed in this court on 11 February 2011. She filed an amended application on 14 April 2011, to which is attached a document in the nature of submissions (which I have considered), as well as a fresh copy of the Tribunal decision and a copy of her academic transcript from the University in Thailand. The applicant also had the opportunity to make oral submissions today.
It is convenient to consider first the grounds in the amended application. The first ground in the amended application is as follows: “Bias for my historical transcript.” It is apparent when regard is had to the attached submissions and material provided by the applicant that this is intended to be a contention that the Tribunal's decision was affected by bias.
The applicant is self-represented. I have considered whether there is anything in the material before the court that is indicative of either actual or apprehended bias, having regard to the principles considered by the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28.
However there is nothing in the material before the court to establish actual bias in the sense of a state of mind consisting of a prejudgment indicating that one is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Nor is apprehended bias established. This is not a case in which it might be reasonably apprehended from the perspective of the reasonable bystander or fair-minded lay observer that the Tribunal member might not bring an impartial and unprejudiced mind to the resolution of the question which the Tribunal was required to decide.
It is important to note first that the only evidence before the court is as described above. It is well-established that it is only in a rare and exceptional case that bias on the part of the Tribunal would be established simply by reference to the reasons of the Tribunal (see SZHVL v Minister for Immigration and Citizenship [2008] FCA 356) although there are circumstances in which fact-finding can be conducted in a manner which can result in a reasonable apprehension of bias as considered in NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328. However the mere fact of adverse findings is not such as to establish either actual or apprehended bias, particularly where factual findings are open to the Tribunal on the material before it.
Insofar as the applicant seemed to suggest that certain things may have been raised with her in the Tribunal hearing or that she may have said things to the Tribunal that were not recorded in the Tribunal reasons for decision, there is no evidence to support such claims. The only evidence before the court as to what occurred in the hearing is the Tribunal reasons for decision. The applicant attended a directions hearing at which an order was made for her to file any transcript of the Tribunal hearing by 14 April 2011. She did not do so. She told the court that her migration agent still had the compact discs of the Migration Review Tribunal hearing. There is nothing in these circumstances to indicate that the applicant did not have the opportunity to put evidence before the court in support of her claims.
The claim the applicant makes in her amended application appears to relate primarily to the Tribunal's treatment of what she described as her “historical transcript”. This appears to be a reference to the results she obtained in her study in Thailand in a Bachelor of Business Administration, the transcript for which was provided to the Tribunal and which is also before the court.
The applicant’s submission also referred to a number of paragraphs in the Tribunal reasons for decision. The applicant referred to paragraph 51 of the Tribunal reasons for decision (which is a description of what occurred in the Tribunal hearing) and claimed that if the Tribunal was concerned about her study, it should examine the results of her study in Thailand, which she claimed resulted mostly in As and Bs. The Tribunal recorded:
When the results during 2004 were discussed, which included a substantial number of C and D results, the applicant explained that her study from 2005 resulted in mostly A and B results.
In her oral submissions today the applicant appeared to contend that the fact that the Tribunal had raised with her the fact that her results in Thailand in 2004 included a substantial number of C and D results was indicative of bias. However, it is well-established that it is for the Tribunal to test an applicant's claims. Even vigorous testing of an applicant's claims at a hearing is not necessarily such as to amount to either actual or apprehended bias (NAJO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 356 per Moore J at [24]). In the present case, particularly having regard to the results achieved by the applicant in 2004 which, it is not in dispute, did include a substantial number of C and D results, the Tribunal questioning is not such as to be indicative of bias. Clearly the opportunity was given to the applicant to address this issue when she raised her study in Thailand and also to address the results she obtained thereafter.
Insofar as the applicant asked the court to address the merits of the Tribunal decision, merits review is not available in this court.
The applicant also took issue with the fact that in the course of the Tribunal hearing (see paragraph 48 of the Tribunal decision), the Tribunal asked her about the possible view that the progress of her study may indicate that in fact her course of study in 2009 was simply too difficult for her and that her progress was not affected by exceptional circumstances beyond her control.
The Tribunal recorded that it put to the applicant that she had studied similar subjects at UNSW and then at the University of Newcastle, but had only recently passed four courses of study, having initially failed all subjects at the University of Newcastle, and that this may indicate that only after studying subjects for some two years was she able to pass them. The applicant is recorded as having explained to the Tribunal that her results at University of Newcastle were “quite good in comparison to other participants” and that “[a]lthough the results were only passes, many of her friends had not passed the courses concerned”. She also explained that she “had not studied the subjects for several semesters because she could not study properly in the past and therefore the subject matter was new to her”. The Tribunal questioning and raising of the issue of the reason for the applicant’s breach of condition 8202 is not indicative of bias. Rather, the Tribunal was properly giving the applicant the opportunity to address issues of concern to it.
The applicant also appeared to take issue with the fact that the Tribunal did not specifically refer to the psychologist's report in relation to its conclusions in paragraph [73] and its consideration of the fact that she had been studying courses for some two years before passing the relevant subjects. The applicant was given the opportunity to address the issue. The Tribunal’s failure to address the psychologist’s report in this specific context is not such as to be indicative of actual or apprehended bias having regard to the fact that it did consider the report, as set out above.
Insofar as the applicant submitted that paragraph [73] of the Tribunal’s decision supported her contention that the Tribunal decision was affected by bias, it was open to the Tribunal on the material before it to come to the view that the applicant’s poor academic progress was the result of her attempting a course of study that was too difficult for her. The fact that the applicant disagrees with the Tribunal’s conclusions is not such as to establish either actual or apprehended bias.
The explanation for her results that the applicant gave in her written submissions to this court seeks impermissible merits review.
Further, contrary to the applicant’s contention, the Tribunal did not fail to have regard to her successful completion of a Bachelor’s degree in Thailand in a manner constituting jurisdictional error. What was in issue however was whether her failure to achieve satisfactory progress in postgraduate study in second semester 2009 at UNSW resulting in the certification was due to the matters to which she referred or to the difficulty of the course.
Insofar as the applicant contended that the Tribunal simply looked at her 2009 results and on that basis concluded that she had not had the ability to do the UNSW course, and that this was indicative of bias, the evidence before the court is to the contrary. In the course of the review the Tribunal sought to obtain further evidence from the education provider relevant to the issues that the applicant had raised with the delegate. She was given the opportunity to raise issues with the Tribunal, both at the hearing in oral submissions and thereafter. In the course of the hearing the Tribunal raised with the applicant issues of concern to it. Indeed it put to her its potential reasoning in relation to the possibility that the course of study in 2009 was simply too difficult for her and gave her the opportunity to comment.
In these circumstances, the fact that the applicant disagrees with the conclusions of the Tribunal is not such as to establish either actual or apprehended bias. The court cannot review the merits of the Tribunal's decision and there is no error of law, let alone a jurisdictional error, in the Tribunal making a mere wrong finding of fact. In any event, it cannot be said that any wrong finding of fact has been established: see Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [137].
In oral submissions the applicant also took issue with that part of the Tribunal’s decision that dealt with what she had done in relation to an appeal against her failure in one subject at UNSW. The applicant endeavoured to give the court an explanation for why she had not pursued that appeal. When I asked her if she had provided that explanation to the Tribunal, she suggested that perhaps her explanation had not been recorded by the Tribunal. However, it is apparent from the Tribunal reasons for decision (the only evidence of what occurred in the Tribunal hearing), that when the Tribunal asked the applicant about appeals to UNSW, she explained that she had appealed believing she had achieved a better result than that given in her final exam in December 2009. She claimed she did not hear anything from the University before it certified her unsatisfactory progress. When the Tribunal asked about inquiries she had made the about progress of the appeal between December 2009 and March 2010, the applicant explained that she had “been told it could take between a week and a month and that she had not heard anything by March”. The applicant also explained that she had been told the teacher was out of Australia and she was awaiting her return. The explanation the applicant now seeks to give the court does not establish bias on the part of the Tribunal.
As indicated the Tribunal put to the applicant its possible view that the progress of her study may indicate that the course was too difficult. She referred to recently passing her subjects at University of Newcastle. The Tribunal also asked her about the fact that she had not raised the reasons for her difficulties with UNSW during 2009. The applicant told the Tribunal that there were two reasons for this: that she had missed the orientation and did not know the procedure and that even if she had known the procedure she would not have reported the matter, because she did not want other people to know her status and she wanted to be seen as a good student. The fact that, for the reasons which it gave, the Tribunal did not accept that she would be “unable to negotiate systems at the University such that she was not capable of putting relevant matters before the authorities” does not establish actual or apprehended bias.
Insofar as the applicant now contends that the Tribunal decision was affected by bias or apprehended bias because the Tribunal did not consider other reasons that she now purports to give for her difficulties with the University and her failure to appeal or to pursue her appeal, there is no evidence that the Tribunal failed to consider the issues that she raised, let alone that the manner in which the Tribunal considered those issues is such as to establish bias. Neither actual nor apprehended bias is made out on the material before the court in the manner contended for by the applicant in writing or orally today.
The material before the court is not such as to establish that the Tribunal's fact finding was conducted in such a manner as to be indicative of actual or apprehended bias. Ground one is not made out.
The applicant takes issue with the logic or reasonableness of the Tribunal's findings, in particular in the manner in which it had regard to her subsequent study as supporting the conclusion that it was the nature of the course which resulted in her not achieving satisfactory progress (albeit the applicant did not express herself in those terms). Even if a different decision-maker might have reached a different decision on the same material, the Tribunal's reasoning is not such as to establish illogicality, irrationality or indeed unreasonableness in a manner constituting jurisdictional error (see Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16).
The second ground in the amended application is that the Tribunal ignored the psychology assessment. Contrary to the applicant's contention, the Tribunal did not ignore the psychological assessment. Rather it set the assessment out in full and specifically referred to it as a “cogent assessment of the applicant's background circumstances” and the psychologist's “understanding of the impact of her break up with her boyfriend and the more recent incident”.
The Tribunal found that the psychologist’s assessment was in accordance with the claims the applicant made, but also found, for the reasons which it gave, that this did not overcome the difficulties that it had identified in relation to the applicant's failure to raise issues with the University. The Tribunal also went on to reject the applicant's claims that the break-up with the boyfriend was an exceptional circumstance relevant to its consideration of whether the non‑compliance was due to exceptional circumstances beyond her control. There was no failure by the Tribunal to consider the psychologist's report, let alone a failure such as to amount to jurisdictional error.
The third ground is that "some decision only based on assumsion (sic)." It appears from the applicant’s written submissions that this is a contention that the Tribunal's finding in relation to her break up with her boyfriend was based on an assumption. She referred in her written submissions to the fact that she came from a traditional Chinese family, that she followed her father's decision to come to Australia and that she never said no to him, but that she would however not have come to Australia if she knew she would break up with her long‑term and significant boyfriend.
Insofar as the applicant takes issue with the Tribunal's findings in relation to whether or not her break-up with her boyfriend and other claimed circumstances constituted exceptional circumstances or whether the non-compliance was due to such circumstances she seeks impermissible merits review of the Tribunal's decision. The Tribunal's finding that the applicant's distress following the break-up with her long‑term boyfriend in late 2008 was not the reason for her unsatisfactory course progress in 2009 (in particular in Semester Two 2009) was a finding of fact open to the Tribunal on the evidence before it. Its findings do not reveal jurisdictional error. Again, it cannot be said that the Tribunal findings in that respect were so unreasonable that no reasonable decision-maker would have come to such findings, even if a different decision-maker might have reached a different decision on the same material.
It appears that the applicant may have also intended to claim that the Tribunal relied on assumption insofar as it had regard to the fact that she took no action to put these matters before the University or to seek ongoing assistance of any sort during 2009 in not being satisfied that the breach of condition 8202 was due to exceptional circumstances beyond her control. Again, the applicant sought to provide the court with an explanation for her failure to do so.
However, the Tribunal raised this issue with the applicant at the hearing. She had the opportunity to provide an explanation. It was open to the Tribunal to have regard to the factors that it did (in particular the applicant’s failure to raise certain matters with UNSW) in reaching the conclusions that it did.
The applicant's disagreement with the Tribunal's reasoning and conclusions does not establish jurisdictional error, either on the basis contended for in the amended application or otherwise.
For the sake of completeness, I have considered the grounds as set out in the original application, as it was not entirely clear to me that the applicant did not intend to pursue those grounds in these proceedings. Insofar as the applicant took issue with the delegate's decision, the decision before the court is the Tribunal decision. She claimed that the Tribunal failed to consider the fact she suffered depression due to a broken relationship with her ex-boyfriend and harm by a second boyfriend in 2010 as evidenced by the psychologist’s report.
The Tribunal did not fail to consider these claims. It found however, that the break-up with the ex‑boyfriend and the consequences for the applicant were not the reason for her poor performance and also did not constitute exceptional circumstances beyond her control. The Tribunal accepted that the incidents of 2010 occurred, but found that as these events occurred in 2010 they could not have been exceptional circumstances affecting the applicant’s compliance with condition 8202 in 2009.
It has not been established that the Tribunal failed to have regard to the claims that the applicant made about her family circumstances (to which the Tribunal referred) or to her psychological state.
In her original application the applicant also reiterated that the Tribunal judged her case based on assumption rather than facts and evidence and contended that it failed to consider her cultural and family background, which was said to be exceptional and compassionate. There is, however, nothing in the material before the court to establish that the Tribunal failed to consider the applicant's claims in this respect in relation to what constituted exceptional circumstances beyond her control leading to her failure to progress (which in turn led to the certification by the education provider).
The Tribunal set out the applicant's claims and also its reasons for not accepting that her claimed reasons constituted exceptional circumstances beyond her control that caused the non‑compliance, including, relevantly, her upbringing and family relationships and her claimed psychological condition. The Tribunal considered her claims in that respect and also the psychologist's report. It has not been established that it failed to have regard to any relevant consideration.
The applicant contended that the Tribunal questioning of her at the hearing made her feel very upset. Again, the only evidence before the court of what occurred at the Tribunal hearing is the Tribunal reasons for decision. There is nothing in the material before the court to indicate that the manner in which the Tribunal hearing was conducted was indicative of a lack of fairness constituting jurisdictional error. The Tribunal did record that the applicant became upset in the course of the hearing. There is, however, nothing to suggest that the applicant’s state was such that she was deprived of a meaningful opportunity to participate in a hearing.
It is apparent from the Tribunal reasons for decision that it was aware of the applicant's situation, in particular the impact on her of more recent events. It accepted that these events would be distressing, as indeed would be the earlier events of which she complained. The claim that the Tribunal had a strong prejudice against the applicant’s application reiterates the bias claim which I have considered. It is not made out.
In oral submissions the applicant described aspects of the Tribunal conclusions with which she took issue and aspects of the Tribunal reasoning with which she differed. In particular, she took issue with the Tribunal's view that her failure to make satisfactory course progress was because she could not, during 2009, deal with the course content and as a result did not make satisfactory progress. As indicated, such findings were open to the Tribunal on the material before it for the reasons that it gave. The applicant's disagreement with the Tribunal's reasons and findings are not such as to establish jurisdictional error.
As no jurisdictional error has been established, the application must be dismissed.
The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 19 August 2011
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