Kabir v Minister of Immigration - [2011] FMCA 1036

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KABIR v MINISTER OF IMMIGRATION & ANOR

[2011] FMCA 1036

MIGRATION – Review of Migration Review Tribunal decision – visa cancellation – Subclass 572 Vocational Education and Training Sector visa – where applicant found to have not achieved adequate course progress – where applicant notified – where Tribunal found no exceptional circumstances – whether MRT failed to consider medical reports – findings of fact – whether apprehension of bias – whether applicant unable to make his case before Tribunal due to language difficulties.

Migration Regulations 1994, regs.8202(3)(a), 2.43(2)(b)(ii)(B)
Migration Act 1958, (Cth), s.425(1)

Maan v Ministerfor Immigration & Anor (2009) 179 FCR 581
Minister for Immigration v SZNPG& Anor [2010] 115 ALD 303
M175 of 2002 v Minister for Immigration [2007] FCA 1212
Minister for Immigration & Anor v SCAR [2003] FCAFC 126
SZBEL v Ministerfor Immigration & Anor [2006] 231 ALR 592
SZGYM v Ministerfor Immigration & Anor [2007] FCA 1923
SZJZE v Minister for Immigration & Anor [2007] FCA 1653

Applicant:

MD HUMAYUN KABIR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 905 of 2011

Judgment of:

Raphael FM

Hearing date:

14 December 2011

Date of Last Submission:

14 December 2011

Delivered at:

Sydney

Delivered on:

14 December 2011

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Ms L Clegg

Solicitors for the Respondent:

DLA Piper Australia

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 905 of 2011

MD HUMAYUN KABIR

Applicant

And

MINISTER OF IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The application which comes before me today seeks review of a decision of the Migration Review Tribunal made on 6 April 2011 which affirmed a decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa. The applicant was granted that visa on 9 October 2009. It would appear from the evidence that he had engaged in vocational training to the extent of obtaining a qualification in cookery. For reasons best known to himself the applicant did not take advantage of that qualification and complete the necessary requirements to enable him to obtain permanent residence on that basis. Instead, he decided to enrol in further educational courses. He did this with Bridge Business College which on 9 August 2010 sent him a section 20 notice advising him that it had certified him as not achieving satisfactory course progress in relation to his Diploma of Business course and that as a result paragraph 8202(3)(a) of the Migration Regulations 1994[1] applied to him. Because he had failed to meet the requirements of subclause 8202(3) he had breached condition 8202 which appeared upon his visa.
[1] “Regulations”
The applicant took the necessary steps to attempt to persuade the Department that the cause of his breach consisted of circumstances beyond his control but that proposition was not accepted by the Department and as a result the applicant sought merits review from the Migration Review Tribunal.
I do not think that it is necessary to set out in any detail the provisions of s.8202 or the provisions of s.116 or Reg.2.43 because it appears accepted that the applicant did receive the appropriate notice and that he did fail to achieve a satisfactory academic record. What his application to the Migration Review Tribunal and, subsequently, to this court concentrated upon was whether or not certain circumstances which had occurred in his life constituted exceptional circumstances as described in Reg.2.43(2)(b)(ii)(B).
In the Tribunal’s decision record it sets out in considerable detail the law relating to the manner in which the phrase “exceptional circumstances” should be interpreted.[2] It has not been suggested that the Tribunal’s rehearsal of those matters represented an incorrect understanding of the law. It should be noted that at all relevant times the applicant was represented by a solicitor/migration agent whose regular appearances before this court satisfies the court that had such been the case it would have formed part of the applicant’s grounds of review, which were drafted by those solicitors who represented the applicant up until very recently.
[2] [12 to 19] [CB 157-158]
The applicant’s claim to the Tribunal that the reason for his academic failure was that exceptional circumstances arose out of two particular incidents. The first was that on 11 August 2009 the young woman with whom he was in a relationship in Bangladesh and whom he hoped to marry, broke that relationship off. The second incident was that in November 2009 his grandfather died. The applicant claimed that he had been very close to his grandfather and that he suffered mentally and emotionally from trauma arising out of this incident. It would appear that his grandfather died as the result of a motor accident and the applicant was not able to return to Bangladesh for the funeral.
The applicant produced to the Tribunal some medical certificates. The first certificate was dated 10 June 2010 and confirmed that the applicant was suffering from lower back pain and strain. Then there were three certificates signed by another doctor on 2 September 2010 which stated that the applicant had attended the medical centre on 17 July, 21 August and 2 September 2010 suffering from, respectively, right-sided neck pain, depression and weight loss. There was a fifth certificate signed by another doctor on 7 September 2010 stating that the applicant had attended the medical centre on 2 February 2010 suffering from an unspecified mental condition.
The Tribunal noted that:
“Each certificate stated that the applicant was “unfit to attend work/school/university” on the day the applicant attended the centre.”
The Tribunal notes that:
“17 July and 21 August 2010 were Saturdays, the other three relevant days being weekdays.”
The applicant also produced for the Tribunal a medical report prepared by a psychologist to whom the applicant had been referred by his lawyers. That report, being addressed to the Minister, was dated 30 January 2010.
In its findings and reasons, the Tribunal at [48][3] stated that:
“The applicant acknowledged that he had not complied with condition 8202 of his visa but he claimed the non-compliance was due to exceptional circumstances beyond his control.”
The Tribunal said that its understanding from the wording of this, his statement, was that those exceptional circumstances were the fact that his grandfather had died in November 2009 and he later broke up with his girlfriend:
[3] [CB 162]
“The applicant said that, in fact, the break-up had occurred on 11 August 2009, before his grandfather died.
…
The fact that BBC had certified the applicant was not achieving satisfactory academic progress was sufficient, of itself, to establish that there was non-compliance with condition 8202. The key issue for the Tribunal, therefore, was simply to consider the question of whether or not there were “exceptional circumstances” beyond the applicant’s control which caused the non-compliance.”[4]
[4] [CB 48 – 49]
It is about these matters that the applicant was questioned in detail at the interview which was also attended by his lawyer. The Tribunal came to certain conclusions about these incidents but it did not deny that they took place. The Tribunal took the view:
“While accepting that such a break-up may have been painful to the applicant, the Tribunal is of the view that a break-up between two young people is something which is quite common place. Even in the applicant’s culture, the Tribunal does not believe that a break-up between an engaged [couple] is so unusual to be considered an “exceptional” circumstance.[5]
[5] [CB 85]
The Tribunal considered the medical certificates provided by the doctors noting that they did not all involve mental conditions and that they only suggested that the applicant was unfit for study on one individual day. What troubled the Tribunal was that although the applicant made much of his mental condition and suggested that he had been continually attending doctors and taking medication there was no evidence before the Tribunal that any doctor had prescribed medication or referred him to a psychologist or psychiatrist.
In the interview, a transcript of which has been provided to the court, the Tribunal asked the applicant:
“Q:I’m asking you about the time that you saw another doctor in August and September 2010 and you spoke about depression. Did he refer you to a psychologist or prescribe any medication for depression?
A: No. He did not refer any, but he say, “Now, if you wish you can go in – psychologist” and he said, “I think it’s better to go – any psychologist”.
Q:So he said he thought it was better for you to go?
A:Yes.
Q:But he didn’t refer you?
A:No. He did not refer me.” [T15]
It was against that background that the Tribunal considered the psychologist’s report of 28 January 2011 but it did not give that report much weight because the Tribunal expressed the view that if the applicant’s condition had been as serious as he maintained the Tribunal would have expected him to seek psychological intervention in 2009 when the events occurred or soon thereafter and that if his condition had been as serious as he indicated the doctors to whom he presented would have referred him to a psychologist and not merely suggested that he might wish to do so.
The Tribunal expressed the view that:
“Given the gap of more than a year between the alleged events giving rise to the mental condition and the consultations upon which the report was based, the Tribunal places little weight on the report as evidence of the severity of any symptoms the applicant may have been experiencing in 2009-10, and as evidence of the reasons for any such symptoms. In reaching this conclusion, the Tribunal makes no adverse reflection on the psychologist concerned, realising that his conclusions had, perforce, to be based to a considerable extent on what he was told.”[6]
[6] [CB 94]
There is no necessity to go into any further detail about the Tribunal’s decision because the grounds upon which review is sought concentrate upon the Tribunal’s treatment of the medical evidence. The first ground of review is:
“The Tribunal failed to consider the applicant’s claims as made to it and/or failed to take into account a relevant consideration.”
Particulars
(i)In rejecting the applicant’s claim that he was suffering from depression and that he was – and that was the reason why he did not comply with condition 8202 of the Migration Regulations 1994 (to which his cancelled student visa was subject):
(a) The Tribunal failed to take into account or consider the applicant’s claim made at hearing, but a medical practitioner that he saw in August 2010 – 2010 – and in September 2010, advised him that he thought it was better that he went to a psychologist.
(b) The Tribunal failed to give proper consideration to the psychological report dated 30 January 2011 by:
(i)Failing to appreciate that the psychologist tested the applicant using tests to “objectively assess the effect of this period on Mr Kabir” and/or where:
(ii)The Tribunal failed to appreciate that the applicant was advised by a doctor he had consulted, to see a psychologist.”
In regard to ground 1, I have already set out the relevant extracts from [56][7] of the Tribunal’s decision. It seems to me that that is an accurate account of what the applicant was told by his doctors. Indeed, it is the fact that the doctors only told the applicant that it was better for him to see a psychologist and did not refer him to a psychologist. It was one of the reasons why the Tribunal did not believe that the applicant’s mental condition was as serious as he made out. This ground cannot possibly succeed.
[7] [CB 163]
The weight which the Tribunal gave to the psychologist’s report, which was considered in some detail at [41] - [42][8] and, again at [90][9], [93] - [94][10] was purely a matter for the Tribunal; Maan v Ministerfor Immigration & Anor (2009) 179 FCR 581 per Dowsett, Greenwood and Collier JJ at [51-52]. Where in similar circumstances to the ones before the Tribunal in this case, their Honours opined:
“However, findings of the Tribunal in respect of the exceptional circumstances submitted by the appellant were findings of fact clearly open to the Tribunal and do not reveal jurisdictional error.”
In these circumstances, the ground cannot succeed.
[8] [CB 161 - 162]
[9] [CB 169]
[10] [CB 169-170]
The second ground is:
“There is an apprehension of bias.”
Particulars
(i) The decision is infected with jurisdictional error, being an apprehension of bias.
(a)There is an apprehension that the Tribunal had a pre-determined view of how the applicant should have reacted if he had been suffering from depression as claimed, being:
that he would have sought psychological intervention in late 2009 when the event said to give rise to the applicant’s claimed depression occurred or soon thereafter; and/or
(b)There is an apprehension that the Tribunal had a pre-determined view of how the doctors of the applicant consulted should have reacted if he had been suffering from depression as claimed;
being the Tribunal had a pre-determined view that doctors that the applicant saw in relation to his claimed depression, would have referred him for psychiatric or psychological assistance if he had been suffering from depression.”
A claim of apprehended bias is a serious one and should indicate how the Tribunal’s reasoning evidences this; see for example, Minister for Immigration & Anor v SZNPG& Anor[11] per North and Lander JJ at [25]. I cannot see how the Tribunal’s reaction to the evidence put by the applicant constitutes a pre-determined view. It merely constitutes the Tribunal’s reaction to that evidence, which reaction is quite understandable from a lay member and, being shown to be part of his reasoning cannot, to my mind, be impugned. It would have been different if the Tribunal had attacked what the applicant’s doctors were alleged to have done on the basis of what the Tribunal thought all doctors might do. But that is not the case here. In my view this second ground is misconceived and must fail.
[11] [2010] 115 ALD 303
The applicant appeared before me today. He was no longer represented by his solicitors. The gravamen of his lengthy submissions was that the Tribunal had not clearly understood the answers to its questions that he had provided because of his lack of English. He said that he was unable to explain his sentences and that the Tribunal did not understand his sentences properly. Regrettably the applicant did not particularise this in any way. I have looked at the transcript myself and the responses to most of the questions seemed to be quite clear and there are indications that where the applicant did not understand things clearly the Tribunal repeated the questions.
It should be borne in mind as well that the applicant was represented at all times by his solicitor, who seems to have answered a great number of the questions on his behalf and further, that it was the applicant himself or possibly his solicitor who indicated in the response to hearing invitation that no interpreter was required. Whilst it is now well established that inadequate interpretation can constitute a failure to comply with s.425(1) of the Migration Act 1958, (Cth)[12]; M175 of 2002 v Minister for Immigration[13]; Minister for Immigration & Anor v SCAR[14]; see also SZBEL v Ministerfor Immigration & Anor[15] at [33]; SZGYM v Ministerfor Immigration & Anor[16], it should be remembered that Middleton J said in SZJZE v Minister for Immigration & Anor[17] at [21]:
“With respect to the first ground, in order for the appellants to succeed, they need to establish by probative evidence that:
(a) the standard of interpretation at the Tribunal hearing was so inadequate that the appellants were effectively prevented from giving evidence at the hearing; or;
(b) errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellants.”
[12] “Act”
[13] [2007] FCA 1212
[14] [2003] FCAFC 126
[15] [2006] 231 ALR 592
[16] [2007] FCA 1923
[17] [2007] FCA 1653
Whilst this is not a case of an attack upon an interpreter the requirement for strict proof must surely be the same. The applicant has pointed to no particular part of the transcript in which he claims he was misunderstood. It is also to be noted that the applicant and his advisors were given the opportunity, which they took, of making post-hearing submissions and there were no submissions relating to concerns about the Tribunal’s comprehension of the applicant’s responses. The applicant further told me that he was mentally unstable at the time of the Tribunal hearing but he has produced no evidence to that effect. In these circumstances, I am unable to find any ground upon which it could be said that the Tribunal fell into jurisdictional error in the manner in which it reached its decision.
I dismiss the application. I order that the Applicant pay the First Respondent’s costs assessed in the sum of $5,500.00.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Date: 22 December 2011