Gurung v Minister for Immigration - [2013] FCCA 2009

FEDERAL CIRCUIT COURT OF AUSTRALIA

GURUNG v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 2009

Catchwords:
MIGRATION – Review of decision of MRT – where applicant breached Condition 8202 of her 573 visa – failure to achieve satisfactory course progress – where applicant’s grandfather sick in Nepal – where applicant travelled to Nepal to see him – where applicant returned to Australia only one day before exams in 2011 – where applicant failed in exams in 2012 – where notice issued after 2012 failures – where applicant claimed stress from grandfather’s illness and other family related causes – whether Tribunal in considering exceptional circumstances conflated reasons for failure – whether Tribunal only looked at circumstances of applicant’s family and not the stress suffered – some comments on appropriate way to consider exceptional circumstances beyond applicant’s control.

Legislation:

Migration Act 1958 (Cth), s.116(1)(b)

Migration Regulations 1994, Reg 2.43

Maan v Minister for Immigration & Anor [2009] 179 FCR 581
Hatcher v Cohn (2004) 139 FCR 425

Applicant:

CHITRA GURUNG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 191 of 2013

Judgment of:

Judge Raphael

Hearing date:

25 November 2013

Date of Last Submission:

25 November 2013

Delivered at:

Sydney

Delivered on:

29 November 2013

REPRESENTATION

Counsel for the Applicant:

Mr J R Young

Solicitors for the Applicant:

G & S Law Group

Solicitors for the Respondents:

Clayton Utz

ORDERS

Application dismissed.
Applicants to pay the First Respondent’s costs assessed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 191 of 2013

CHITRA GURUNG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This case raises some interesting questions about how the phrase “exceptional circumstances” when used in conjunction with s.116(1)(b) and Regulation 2.43 of the Migration Act 1958 (Cth)[1] and Migration Regulations 1994[2] is interpreted. The applicant is a student whose sub-class 573 visa was cancelled on 24 October 2012 under s.116(1)(b) on the basis that she had breached Condition 8202. The relevant parts of the Act and Regulations are set out below:
[1] “Act”
[2] “Regulations”
Migration Act s.116
“Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b)its holder has not complied with a condition of the visa; or
(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
Regulation 2.43
…
(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
…
(b) in the case of a Student (Temporary) (Class TU) visa:
(i) that the Minister is satisfied that the visa holder has not complied with conditions 8104 or 8105 (if the condition applies to the visa); or
(ii) that the Minister is satisfied that:
(A)the visa holder has not complied with condition 8202; and
(B)the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.”
Condition 8202
(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student-- the holder is enrolled in a full-time course of study or training.
(3) A holder meets the requirements of this subclause if neither of the following applies:
(a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i) section 19 of the Education Services for Overseas Students Act 2000 ; and
(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i) section 19 of the Education Services for Overseas Students Act 2000 ; and
(ii) standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.”
It is now accepted that it is the certification by the education provider as to breach of its course progress or attendance policies that constitutes the breach of the condition and not the unsatisfactory progress or attendance itself; Maan v Minister for Immigration & Anor [2009] 179 FCR 581[3] at [44 – 45].
[3] “Maan”
Ms Gurung was granted her sub-class 573 student visa on 3 June 2011 to study a Bachelor of Commerce course at the University of Ballarat that commenced on 11 July 2011. On 13 September 2012 the education provider certified that Mr Gurung had not achieved satisfactory course progress in relation to the course. This constituted a failure to comply with Condition 8202(3)(a) and a breach of Condition 8202. On 4 October 2012 the applicant wrote to the Department in response to the notice of intention to consider cancellation of her student visa setting out what she considered to be compassionate and compelling circumstances beyond her control due to which she was not able to achieve a satisfactory level of academic progress. The letter indicated that the applicant could not concentrate on her studies due to stress caused by a number of factors. The first one she mentions is the fact that she was married without the support of her parents or grandparents to a person who was not of her caste or religion. The second was that her brother who had come to Australia to study had left the country suffering from depression. The third cause of her stress was that her grandfather had serious health problems in Nepal and she returned home to visit him between 10 September 2011 and 10 October 2011. In mid May 2012 her mother became sick.
On 24 October 2012 a delegate of the Minister determined to cancel the visa. On 26 October 2012 Ms Gurung applied for a review of the delegate’s decision from the Migration Review Tribunal. On 12 December 2012 the Tribunal advised her that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited her to an interview on 7 January 2013. The applicant attended the interview and gave evidence to the Tribunal. On 8 January 2013 the Tribunal determined to affirm the decision under review.
The Tribunal questioned the applicant who told it that she had failed three subjects in her first semester and two in her second semester. She had left Australia for Nepal just prior to the semester exams because of her grandfather’s health condition. She remained in Nepal for a month although her grandfather had recovered after a week in hospital. She returned to Australia a day before the exams. She was required to sit the exams but only passed two out of the three subjects. In the second semester (the first semester of 2012) she told that her study was affected by her mother’s illness and her brother’s depression:
“[47]The applicant stated that she was stressed and anxious especially about her brother’s condition and this affected her studies. The Tribunal asked the applicant if she sought any medical or other professional help such as counselling but the applicant stated that she did not. She continued working twenty hours a week in a nursing home. She found this helped as it kept her mind busy.”
[48]The Tribunal put to the applicant its concerns that the health conditions of her grandfather, her mother and her brother may not be “exceptional” given that they had long standing medical conditions that were reasonably under control.”
In its Findings and Reasons the Tribunal first found that the applicant had breached Condition 8202 because of the issue of the certificate by the education provider [56] [CB 79]. It then determined whether or not it was satisfied that the non compliance was not due to exceptional circumstances beyond the applicant’s control. As no submissions were made to the court that this negative way of expressing the duty of the Tribunal contained in the Regulation creates a rebuttable presumption of the existence of exceptional circumstances, and thus the Tribunal’s manner of consideration on the basis that the applicant had to satisfy it that there were exceptional circumstances was misconceived, the court will assume, for the purposes of this decision, that the approach taken by the Tribunal was correct. The Tribunal sets out the manner in which it deals with the applicant’s concerns at [60] [CB 79]:
“[60] In this case the applicant claims her non-compliance with condition 8202 was due to a combination of factors. She claims that she had to travel to Nepal for one month in 2011 to see her sick grandfather and this affected her exam results in that semester. She claims that in 2012, her academic progress was affected by concerns over her mother’s health and her brother’s health. In her written statement she also claims that she was misled by the education provider during the appeals process. The Tribunal has considered each of these claims below.”
The court is not concerned with the claim relating to being misled by the education provider.
The Tribunal dealt first with the grandfather’s illness:
“[62] The applicant has provided no medical evidence to demonstrate that her grandfather was ill and suffered a heart attack, but the Tribunal nevertheless accepts that this event occurred. The Tribunal does not accept, however, that this was an exceptional circumstance [sic] in the sense of being unusual or out of the ordinary. Many overseas students have family members who are elderly and suffer illnesses. The applicant’s evidence was that her grandfather was in his eighties and had many health problems associated with his age. The Tribunal does not accept that it is exceptional that an elderly man in his eighties would have health problems. On the applicant’s own evidence, her grandfather’s condition was not serious and he recovered reasonably quickly. It is also not exceptional that the applicant would not be able to offer direct physical support to her grandfather, once she had made the decision to study overseas.
[63] Further the Tribunal considers that it would have been within the applicant’s control to not have travelled to Nepal for one month so that it did not affect her studies and exam preparation. The applicant stated that her grandfather’s condition was not serious and he was released from hospital after a week into the care of his spouse. The applicant was not directly involved in caring for her grandfather. The applicant was on notice that her exams would start on 11 October 2011, yet she decided to travel to Nepal and returned only the day before her exams started. The applicant told the Tribunal that she decided to stay in Nepal for a longer period so she could spend time with her family. The Tribunal does not consider this to be an ‘exceptional circumstance.”
It is at this point that the difficulties which infect this decision commence. It is clear from the way in which the Tribunal expressed itself in the extracted passage that it was considering the matter of “exceptional circumstances” from the point of view of what caused the applicant to be unsuccessful in her examination. But there were two bases for the failure which the Tribunal identifies at [61]:
[61]The Tribunal firstly considers the applicant’s claim that she had to travel to Nepal for one month due to her grandfather’s illness, and that her concern about her grandfather and her absence from classes for one month caused her to fail 3 subjects in 2011. The Tribunal does not accept that this is an exceptional circumstance beyond the applicant’s control
The first basis is the applicant’s concern about her grandfather which the Tribunal at [68] describes as stress. The second was the fact that the absence abroad for the purposes of seeing her grandfather, which meant her absence from class, caused her to fail. At [17] the Tribunal had cited with approval the views expressed by Kiefel J in Hatcher v Cohn (2004) 139 FCR 425 at [49 – 50]:
“[49] ‘Exceptional’ circumstances, in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances. Speaking in the context of extradition, Gleeson CJ, McHugh and Gummow JJ have held that ‘special circumstances’ need to be ‘extraordinary and not factors applicable to all defendants facing extradition’. It was not necessary that any particular circumstance be regarded as special; several factors in combination could constitute special circumstances: United Mexican States v Cabal (2001) 209 CLR 165 ;[2001] HCA 60at [52]. And in Baker v R (2004) 78 ALJR 1483 ;[2004] HCA 45at [13] Gleeson CJ considered the use of ‘special circumstances’ to condition the exercise of judicial discretion. His Honour said:
This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.
[50]Although his Honour was speaking of judicial decision-making the observations are apposite here. The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the words of the relevant statutory provision. That is a question which arises here.”
The applicant argues that:
“To simply dismiss events relating to the illness of close relatives as incapable of being exceptional because many overseas students have relatives who get sick is both puerile and an erroneous construction of the statutory mandate. The Tribunal adopted an erroneous construction which would inevitably exclude any issue would could affect other students.”
The respondent says that the sentence “many overseas students who have family members who are elderly and suffer illness” is just a finding of fact of relevance to the legal test. I would tend to support that submission and agree that the illness of an elderly relative would not, without more, constitute an exceptional circumstance because it cannot be denied that it is in the nature of elderly people to become ill. It seems to the court that in order to promote the illness of this relative to an exceptional circumstance it would be necessary to show some differentiating factor. The differentiating factor could be in the relationship between the applicant and the relative or the nature of the illness but the categories should not be closed. In this case no differentiating factor was suggested. As I am satisfied that in this regard the Tribunal did understand its legal obligations then its conclusion as to the exceptional circumstances is a matter of fact for it that the court cannot review; Mann.
At [63] [CB 80] the Tribunal moves on to consider whether or not the applicant’s absence from the country for a month, which resulted in her returning to Australia only one day prior to the examinations commencing, was a matter that was not within her control. It concluded that it was because the grandfather had recovered quickly from his illness and had been released from hospital after a week. The applicant’s decision to remain in Nepal for a longer period to see her family would necessitate it being excluded from the definition of a decision beyond her control.
These findings of the Tribunal relate to that part of the applicant’s claim which said that the absence from Australia affected her examination performance. The second claim made by the applicant was that the illness of her grandfather itself caused her stress and that stress contributed to the failure. The court believes that it is important not to conflate the reason for the stress with the stress itself. The loss of performance was not due to her grandfather’s illness it was due to the stress that she suffered as a result of her grandfather’s illness. If it can be said that the stress constituted an exceptional circumstance then the fact that its causative factors might not be exceptional is irrelevant. For example, a student might say “I cut my right hand”. Cutting one’s hand is not exceptional but she might go on to say “And it became infected so that I was unable to use it to write my examination”. It is the fact of the infection that is the exceptional circumstance or, more accurately, a circumstance which a Tribunal as the finder of fact could find to be exceptional.
The Tribunal does not appear to have given any consideration to the independent question of stress from the grandfather’s condition in respect of the failure in 2011. What it did was to consider it together with the applicant’s other concerns in 2012:
“[65]The Tribunal next considers the applicant’s claim that her academic progress in 2012 was affected by concern over her mother’s health condition, her brother’s depression, her grandfather’s health and her parent’s opposition to her marriage.”
The Tribunal’s response to the question posed at [65] is found at [66]:
“[66] The Tribunal has already not accepted that the applicant’s grandfather’s health is an exceptional circumstance. The Tribunal also does not accept that the applicant’s mother’s health and her brother’s health are exceptional circumstances. As stated above, many overseas students have family members who suffer illnesses. It [is] not exceptional that the applicant would not be able to offer direct physical support to her mother and brother, once she had made the decision to study overseas.”
In the court’s view that paragraph does not answer the question. It looks the wrong way for reasons explained above. It looks to the reason for the stress and not to the stress itself.
However, at [68] the Tribunal appears to rectify its error:
“[68] The applicant claims that she was stressed and anxious by concern over her family’s health issues and she could not concentrate on her studies. She has produced no medical evidence or other objective evidence to support this claim. She did not seek medical treatment or counselling at the time. She continued to work part time, which demonstrates that she was able to function, and was therefore capable of studying. On the evidence before it, the Tribunal does not accept that the applicant suffered a medical or psychological condition that was exceptional, beyond her control and that caused her non compliance with condition 8202.”
Here, the Tribunal is making a no evidence point to establish lack of satisfaction. The applicant takes issue with two of the Tribunal’s comments. The first is the reference to continuing to work part time demonstrating her ability to function and study. The applicant says that asking whether or not she was able to study is not the right question. The Tribunal should be asking itself whether or not she was able to pass her exams. In the court’s view this is putting the question round the wrong way. It is for the applicant to establish that the stress prevented her from passing the exams as a pre cursor to satisfying the Tribunal that the stress itself was an exceptional circumstance. The second complaint made by the applicant is that she did not claim that she suffered a psychological condition. But it seems to the court that is exactly what she did claim, stress is a psychological condition. The court is of the view that the Tribunal was entitled to come to a finding that there was not sufficient evidence to satisfy it that the stress was exceptional, beyond her control and caused non compliance with Condition 8202. The court is of the view that the Tribunal dealt adequately with the claim of stress arising from the family illnesses as an exceptional circumstance.

Finally, the applicant takes issue with what fell from the Tribunal at [69] [CB 80]:
“[69]In her written statement to the Department the applicant also claimed hat [sic] she was stressed by her family’s objection to her marriage. The Tribunal does not accept that this was an exceptional circumstance beyond the applicant’s control. The applicant has provided limited detail as to why she claims this is an ‘exceptional circumstance’ or how it caused her non compliance with condition 8202. The applicant did not raise this issue at the hearing. In any case, the Tribunal does not accept that the applicant’s family’s claimed objection to her marriage is an exceptional circumstance.”
Once again in the court’s view it is clear that the Tribunal has conflated the reasons for the stress with the stress itself and been influenced very strongly by the fact that it did not consider the cause of the stress to be exceptional. The respondent urges that the court accept this paragraph as also expressing a lack of satisfaction arising out of a lack of evidence. The claim is itself is one that was not raised at the Tribunal, it was raised only in the submission to the delegate. What the applicant says in this regard is found at [1-3] [CB 25]:
“[1] I first met my spouse in Nepal through a friend of mine in Kathmandu Nepal in 2005. We had an affair for a few years and then we finally got married on 11 July 2008.
[2] It was a marriage done without the support of my parents and grandparents. The reason being our marriage was an inter-caste marriage and different religion. My father is the oldest child of my grandparents. My grandparents and parents are of very traditional people with very conservative perception about religion, caste, culture and family status. Thus, they did not like my relationship with my spouse. They always had a dream of seeing me marry someone arranged by the family an someone of the same caste ‘Gurung’. My spouse is of a different caste ‘Subba’. My spouse has a different culture, tradition and religion to ours. Our family’s religion is Buddhist. My spouse’s family is Hindu.
[3] With all these differences my family could never accept him in our family. Thus we decided to go abroad to continue my study and advance my career with the hope that one day my family would accept our marriage and accept him as their son-in-law.”
At [12] the applicant details the effect:
“[12]Because of this absence in my study and the issues in my family in relation to my marriage and the fact that my parents and grandparents were becoming distant with me affected my study very much. Many things used to come in my mind such as feeling that I was guilty and my actions created all this issues in our happy loving family. My brother became sick and now my grandfather. I didn’t know how to handle it. I could not abandon my spouse on one side as I love him so much and I could not be distant from my family either. As a consequence, out of 4 units (subjects) I was enrolled in I only passed only in one subject.”
At [14] the applicant adds the stress from “the ongoing relationship issues in my family” to her mother’s illness and her brother’s mental health as causative factors of her failure in July 2012.
A careful reading of [69] would indicate that up to the words “her non compliance with Condition 8202” the Tribunal is considering the stress and it is the stress to which the Tribunal refers in the second sentence. If, as the applicant would argue, the Tribunal is referring to the family’s objection to her marriage, there would have been no need to repeat the view in the last sentence. What the Tribunal appears to be saying is that the applicant has not satisfied it because of the limited information provided both as to why the stress constituted an exceptional circumstance and how it caused her non-compliance. For the court to engage with the Tribunal as to the adequacy of the information provided by the applicant would be to provide the applicant with impermissible merits review.
Although the court has found that the Tribunal did not appear to have considered the effect of stress arising out of the grandfather’s illness that was in connection with her examination failures in 2011. The causative factor for the issuance of the non compliance notice was her failure in the examinations in 2012 and at [65] the grandfather’s health is included in reference to her academic progress in 2012. It is the subject of the lack of evidence finding.
Whilst this Tribunal decision does reveal ways in which the reviewer can misunderstand exactly what she is to look for when considering exceptional circumstances the court is of the view that in this particular case the reviewer was able to extricate herself from any error and her decision was made within jurisdiction. This means that the application must be dismissed and the applicant must pay the first respondent’s costs assessed in the sum of $6,646.00.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate:

Date: 29 November 2013