Gurung v Minister for Immigration
[2007] FMCA 1493
•21 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KHAN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1493 |
| MIGRATION – Student visa – Migration Review Tribunal –whether Tribunal misunderstood meaning of ‘exceptional cirucmstances’. |
| Migration Regulations 1994, reg.2.43 Migration Act 1958, ss.116, 359 Education Services for Overseas Students Act 2000 (Cth), s.20 |
| Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 229 Wang v Minister for Immigration [2005] FMCA 918 |
| Applicant: | MAHMOOD KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 465 of 2007 |
| Judgment of: | McInnis FM |
| Hearing date: | 30 August 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 31 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr C.G. Fairfield |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the First Respondent: | Ms C.L. Symons |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The Application be dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 465 of 2007
| MAHMOOD KHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 28 February 2007. The Tribunal affirmed a decision to cancel the Applicant’s student (temporary) (Class TU) visa.
The Applicant's visa was cancelled due to his failure to comply with condition 8202 of the Migration Regulations 1994 (the Regulations). The visa was cancelled pursuant to s.116 of the Migration Act 1958 (the Migration Act).
It is not in dispute that The Applicant did not achieve a satisfactory academic result in a Master of Accounting degree course at Central Queensland University.
The issue in the present case is whether The Applicant can overcome the unsatisfactory performance by relying upon reg.2.43(2) of the Regulations which would allow him to avoid cancellation of his visa in circumstances where it could be concluded that his non‑compliance "was not due to exceptional circumstances beyond the visa holder's control" (reg.2.43(2)(B)).
The exceptional circumstances relied upon by the Applicant were the illness and deterioration of health of his grandmother who died on 24 December 2005 and the suicide death of a fellow student which occurred in early 2006.
The unsatisfactory results obtained by the Applicant occurred in what is described as term 2 of 2005, from 11 July to 7 October of that year where he failed two out of three subjects, and term 1 of 2006 from 6 March to 2 June 2006 where he failed all three of the subjects he had undertaken.
Background
The Applicant is a male national of India born in 1982. He arrived in Australia on 15 March 2005 on a temporary student visa. That visa was valid until 30 April 2007.
After receiving a notice pursuant to s.20 of the Education Services for Overseas Students Act 2000 (Cth) referring to the Applicant's unsatisfactory academic results and apparent beach of condition 8202 of the Regulations, the Applicant attended The First Respondent's Department on 21 August 2006. On that occasion he was provided with a notice of intention to consider cancellation of his visa pursuant to s.116 of the Migration Act.
The Applicant attended an interview with a delegate of the Minister on 12 September 2006. The Applicant’s representative provided written submissions in support of the Applicant’s case and provided documentary evidence of the grandmother's death together with academic results from another education provider namely Meridian International Hotel School where the Applicant was studying a Diploma of Commercial Cookery. Evidence was provided that the Applicant had been offered a place in the Bachelor of Hospitality course by the Central Queensland University upon completion of his Diploma of Commercial Cookery.
Relevantly, the submissions of the Applicant’s representative to the delegate refer in detail to the Applicant’s relationship with his grandmother. Relevantly the submission also states:
“… Things got worse when in early 2006 a student from the same course of Central Queensland University had taken her own life due to the poor results. The news was in the media about the university and they way papers were being corrected.”
(Court Book p.16)
The representative of the Applicant states that the Applicant "could not cope with this situation." He further states that the Applicant, "felt very depressed about his decision to study and this particular university and the course" it was claimed that the Applicant could not concentrate on his studies "after this and the results showed in the semester of July 2006".
In the decision record of the delegate reference is made to the academic record of the Applicant and his claimed inability to concentrate on his studies due to his grandmother's ongoing ill health and death. The delegate also relevantly states:
“Khan also stated that his friend's sister who was studying at CQU committed suicide.
This event shocked him. Khan has not demonstrated how this event affected his ability to meet his course obligations. He did not state any other reason for his unsatisfactory academic results.”
(Court Book p.23)
By letter dated 2 January 2007 pursuant to s.359A of the Migration Act, the Tribunal requested further information from the Applicant which the Tribunal considers will be the reason or a part of the reason for affirming the decision under review. He was specifically asked to comment on his unsatisfactory academic performance and relevantly invited to provide information "in respect of any exceptional circumstances which were beyond your control and which affected your ability to comply with condition 8202 during the relevant visa period" (Court Book p.42).
By a letter forwarded by facsimile transmission on 9 January 2007 the Applicant’s representative refers to the difficulty the Applicant experienced dealing with his grandmother's illness and death in the following terms:
“He stopped eating or going out anywhere. He lost interest in his studies and life in general. His parents started worrying about his health as he used to cry on the phone every time they contacted him.”
(Court Book p.44)
No reference was made in that correspondence to the suicide death of the fellow student, though in fairness it is noted the letter from the Tribunal pursuant to s.359 seeks, "any further information" in respect of these exceptional circumstances and it is clear from the chronology that reference to the suicide death had been made in earlier material before the delegate.
The Tribunal Decision
The Tribunal recited the claims made by the Applicant and submissions forwarded on his behalf by his representative. These included reference to the impact on the Applicant of his grandmother's illness and death and his close relationship with her. The Tribunal also referred to the claim by the Applicant that he was "affected by the suicide of his friend's sister who was also studying at CQU". Under the heading "Evidence" the Tribunal then relevant states:
“24.The review applicant said that apart from his grandmother's situation there were no other reasons why he did not achieve satisfactory academic results. The representative added that one of the review applicant's fellow students had jumped in front of a train and this contributed to the review applicant's state of mind.”
(Court Book p.73)
That incident is the same incident referred to as the suicide of the fellow student which had been noted by the Tribunal and referred to in earlier material.
The Tribunal referred to the relevant law which applies in considering whether the Applicant’s breach of the condition was due to exceptional circumstances beyond his control. It specifically stated:
“37.In Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 229, Lander J noted that, 'any circumstances that are exceptional, in the sense that they are unusual and not of the applicant's own making, but beyond the applicant's control, may provide a reason for the Minister revoking the cancellation.’ In that case the Court was dealing with a different statutory provision in respect of a revocation of an automatic cancellation under section 137L(1)(b) of the Act, however the Tribunal is satisfied that the expression, 'exceptional circumstances beyond the visa holder's control' in the revised regulation 2.43(2) should be interpreted in the same manner.
38.In Wang v Minister for Immigration [2005] FMCA 918, Walters FM noted that the elements of section 137L(1)(b) which must be demonstrated by the applicant to the satisfaction of the Tribunal are:
(i) that 'exceptional circumstances' existed;
(ii)that those 'exceptional circumstances' were beyond the applicant's control; and
(iii)that the breach was due to those exceptional circumstances;”
(Court Book p.76)
In its findings the following paragraphs are relevant:
“41.It has been submitted that the review applicant's failure to achieve satisfactory academic results was due, almost entirely, to the illness and subsequent death of his grandmother in India. The review applicant has claimed that he could not concentrate on his studies because his mind was occupied by thoughts of his grandmother. He was unable to eat or sleep. Apart from his classmates there was no-one he could talk to. Although he attended classes, he did not contribute much because of his preoccupation with his grandmother's situation.
42.The Tribunal accepts that the review applicant's grandmother died in December 2005 and that she was ill for some months prior to her death. The Tribunal has no doubt that the review applicant was worried about her condition, particularly in view of their close relationship. It is likely that her death caused him some distress.
43.However, the Tribunal has great difficulty in accepting the review applicant's claim that his poor academic performance over two semesters (covering a period of approximately one year) was largely attributable to ongoing worries about his grandmother's, illness and grief and sadness related to her death. The Tribunal notes, in particular, that the review applicant did not commence his 2006 studies until more than two months after his grandmother's death, and does not accept that his concentration continued to be affected to the extent that he was unable to pass any of his subjects in Term 1. While it is being suggested that the review applicant may have been suffering from depression throughout this period, there is no evidence to indicate that he attended a doctor or sought other assistance through counselling.
44.The review applicant told the Tribunal that apart from his grandmother's condition, there was no other reason for his failure to achieve satisfactory academic results. While his representative claimed that the review applicant was distressed following the suicide of a classmate, the Tribunal is satisfied that this incident, while exceptional, was not the cause of the review applicant's poor academic performance in two terms.
45.Having regard to the facts and circumstances of the case, and in the absence of any independent evidence as to the review applicant's mental of physical health during the relevant period, the Tribunal is satisfied that his non-compliance with condition 8202 in Term 2, 2005 and Term 1, 2006 was not due to exceptional circumstances beyond his control. Consequently, the Tribunal finds that his visa must be cancelled.”
(Court Book p.77)
The Issues
Applicant's Submissions
Only one ground is pursued in the application and it is contended on behalf of the Applicant that the Tribunal erred by not considering in a cumulative manner the claims made by the Applicant in support of the existence of exceptional circumstances of a kind which would prevent cancellation of his visa.
Specific reference was made to the Tribunal’s findings set out earlier in this judgment where, although reference was made to the grandmother's illness and death and the suicide of the friend, that those matters were dealt with separately and should have been dealt with cumulatively. It was submitted that the Tribunal erroneously suggested that the suicide incident was not "the cause" of the Applicant’s poor academic performance whereas the Tribunal was only required to consider whether that incident was "a cause" of the poor academic performance. It was noted that favourable findings were made in relation to the effect upon the Applicant of his grandmother's illness and death. However, it was argued the Tribunal found "without providing reasons" that the suicide incident was "exceptional" but then found that “this incident was not the cause of the review applicant's poor academic performance in two terms".
It argued that the Tribunal was not required to consider whether the suicide caused non-compliance with condition 8202, nor whether the death of his grandmother caused the non-compliance. Rather it was submitted the question "was whether upon all of the material before it, there were exceptional circumstances" which caused the non‑compliance. It is noted in passing that reference is made to the suicide victim being the applicant's "classmate" although that does not appear from the material.
First Respondent's Submissions
The First Respondent submitted that although the Tribunal in its discretion when considering exceptional circumstances may consider cumulatively the matters relied upon by the Applicant in determining whether there were "exceptional circumstances" it was not bound to do so. It was argued the Tribunal considered the claims appropriately in a manner free of error, specifically it was submitted that the Tribunal was entitled to analyse and draw conclusions arising from the Applicant's claimed reaction to his grandmother's illness and death and was then entitled to consider the claims arising from the suicide of the fellow student. Having rejected the claim in relation to the consequences of the Applicant’s grandmother's it was submitted the Tribunal did not then have to consider cumulatively the consequences of the suicide upon the Applicant’s unsatisfactory performance.
Reasoning
In my view the Tribunal has not made an error when exercising its discretion to consider whether "exceptional circumstances" exist in the present application.
The Tribunal was entitled to consider the claims advanced by the Applicant and to give particular attention to the claim arising out of the illness and death of his grandmother. That is the way the claim was put directly before the Tribunal, albeit with additional reference to the suicide of a fellow student. The Tribunal is entitled to consider each of the claims separately and then if satisfied that the claims separately may provide a basis upon which is able to conclude that exceptional circumstances exist, then it may well make a cumulative assessment of those claims. This may occur where one claim could be referred to as a "weak claim" but taken together with other weak claims may cumulatively satisfy the Tribunal that in the exercise of its discretion exceptional circumstances exist. Where however, one claim is rejected as in the present case, there is no obligation in my view upon the Tribunal to then include that in a cumulative assessment of the claims made by the Applicant.
It is also noted that the Tribunal in a manner free of error made a finding reasonably open to it concerning the absence of evidence of any medical treatment sought or received by the Applicant, nor indeed any evidence of any counselling provided to him. It is not for this Court to provide an alternative explanation in relation to that evidence as it is sufficient to note that it was evidence the Tribunal was entitled to consider and reach conclusions it has reached as set out in its findings cited earlier in this judgment.
In my view the Tribunal accordingly has not misconstrued the terms of the Migration Act or the Regulations and indeed has correctly applied the relevant law set out earlier in this judgment found in the Federal Court decision of Lander J in Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 229 and of Walters FM in Wang v Minister for Immigration [2005] FMCA 918.
Conclusion
It follows for the reasons given that the application should be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 31 August 2007
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