Kaur v Minister for Immigration

[2014] FCCA 1231

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1231

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal – student visa – breach of student visa by failure to regularly attend class due to illness – application dismissed.

Legislation:  

Migration Regulations 1994

Kim v Witton [1995] FCA 1508

First Applicant:

Second Applicant:

HARDIP KAUR

SATNAM SINGH

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

MIGRATION REVIEW TRIBUNAL

File Number: MLG 1047 of 2013

Judgment of: Judge Riethmuller

Hearing date: 2 June 2014

Date of Last Submission: 2 June 2014

Delivered at: Melbourne

Delivered on: 16 June 2014

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Mr W. Sharpe

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application filed on 11 July 2013 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1047 of 2013

HARDIP KAUR

First Applicant

SATNAM SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Migration Review Tribunal on 14 June 2013, affirming a decision of a delegate of the Minister to refuse to grant the applicant a student visa.

2. The second applicant’s case rises or falls with the first applicant’s, as his visa is on the basis of being a spouse of the applicant. 

3. At the hearing of the application before me, the first applicant did not attend.  The second applicant said that the first applicant was ill and in India. No material was forthcoming from her as to her whereabouts or the circumstances of her non-attendance. The second applicant appeared in person.  In the circumstances, it was appropriate to proceed to hear and determine the matter on the submissions that were made by the second applicant

4. The applicant first obtained a student visa on 12 May 2009 which was to run until 7 September 2011. Pursuant to this visa, she came to Australia in the middle of 2009 and commenced a Certificate III in Hairdressing. She soon applied to defer her studies to enable her to depart Australia for a period of four months, and did not return to Australia until August 2010. Thereafter, the applicant did not again study prior to her visa expiring. 

5. The issue for the Tribunal was whether or not the applicant had “substantially complied” with the conditions of her student visa when assessing her on her next visa application. The requirement that the applicant needs to have substantially complied with the conditions of her last visa is imposed by Clause 572.235 of the Migration Regulations 1994, which states:

   If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

6. Whether an applicant has substantially complied is a question of fact: see Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258. A number of considerations that are ordinarily relevant were identified by the Tribunal.

7. At the hearing, the applicant agreed that she had not been enrolled in a registered course for a period of around one year between October 2010 and September 2011.

8. Whilst the applicant had commenced studying a Certificate III in Hairdressing, she had not completed that course and she is now undertaking an Advanced Diploma of Management, which is due to finish in August 2014.  The explanation that the applicant gave for the large gap in her studies was:

   22. The applicant told the Tribunal that she had studied for about 6 months but had to return to India because her mother-in-law became ill. The applicant said that she had returned to Australia but decided to leave her children with her mother-in-law when she returned to Australia. The applicant said that when she had returned to Australia she became depressed. She said that she was not able to travel by train from Shepparton to Melbourne where she was doing her studies. The applicant said that her depression was caused by the fact that her children were back in India. The applicant said that he husband did not want her to travel on the train.

9. The Tribunal recounts that the applicant was asked for evidence concerning the gap in her studies, and that she did provide some evidence.  The Tribunal recount:

   26. The Tribunal asked the applicant for evidence of her depression during the gap in her studies. The applicant said that she had certificates. The Tribunal noted that the certificate from India referred to her depression in June/July 2010 and the other psychiatrist’s report was dated after the gap in fact one year after the period identified by the Tribunal. The applicant said that she was mentally upset and depressed after she returned from India and did not want to tell anyone about her problems. The applicant said that she had stayed home for some months. The applicant had not sought professional help for her claimed depressions. The Tribunal noted that it did not appear that the applicant had applied for a deferment from her studies.

10. The medical reports that the applicant produced were from a psychiatrist in India and a psychologist in Australia.  The report from the psychiatrist in India was dated shortly before her return to Australia and was in very brief terms.  It is a handwritten note on the letterhead of “Healing Touch Hospital” which simply certifies that the applicant had depression and sought treatment from June 2010, and was given medication. The certificate is dated 30 June 2010.

11. The psychologist’s assessment was undertaken in Australia and is dated 5 October 2012. The letter commissioning the psychologist’s report was not put before the Tribunal, and it is not apparent from the report itself exactly what questions the psychologist was asked to answer.  The psychologist recounts what the applicant had told her and concludes that the applicant “presents with symptoms consistent with major depressive disorder and other psychiatric disorders”. The psychologist does not venture an opinion as to the state of health of the applicant during the period between when the applicant saw the doctor in India and the time that the psychologist saw the applicant in Australia.

12. The substantive findings of the Tribunal are contained in paragraphs 48 to 50 of its Reasons, where the Tribunal said:

    48. The applicant said that because of the mental suffering she did not attend classes, did not complete Certificate III in Hairdressing and her enrolment in her course ceased. The applicant told the Tribunal that she had medical evidence of her mental state at the time. She has provided a medical certificate issued by an Indian doctor on 30 June 2010 which states that the applicant was suffering from depression in June and July 2010 and had been prescribed medicine. The applicant had provided a psychiatrist’s report dated 5 October 2011 which was compiled as a consequence of consultations on 21, 22, 28 September 2011 and 1 and 5 October 2011. The Tribunal noted with the applicant that the evidence of her depression related to periods before and after the period identified by the Tribunal. The applicant told the Tribunal that she did not consult with a professional during the period identified and as such had no objective evidence to substantiate her claim of mental stress and depression at this time. The applicant told the Tribunal that she did not want to consult a professional because she was too shy and reluctant to accept help. Given that the applicant had previously consulted a doctor in India and subsequently a psychiatrist in Australia, the Tribunal does not accept this claim.

    49. The Tribunal has regard to the psychiatrist’s report provided in evidence to the Tribunal. The Tribunal considers it is significant and reflects adversely on the applicant that her first consultation with the psychiatrist occurred after the applicant was asked to comment on adverse information relating to the gap in her studies as identified by the delegate. The Tribunal also noted that the report identified that the applicant required ongoing monitoring for the symptoms identified by the psychiatrist. The Tribunal considers it is significant and reflects adversely on the applicant that she did not seek any further professional help as suggested in the report.

    50. The Tribunal has taken into account the evidence of the applicant’s mental health before and after the period identified by the Tribunal. However, the applicant was not enrolled in a registered course for a period of 11 months when her student visa was in effect. Without objective evidence of the applicant’s claimed mental health in the relevant period the Tribunal is not satisfied that the applicant was not enrolled in a registered course for this reason. The Tribunal considers that despite the applicant’s claimed mental stress it was open for her to maintain enrolment and seek a deferment from her studies which she clearly did not do. The Tribunal is not satisfied that the applicant substantially complied with Condition 8202(2) of her last held substantive visa. 

Ground 1

1. The first ground the applicants rely upon is:

   (1) The Tribunal wrongly considered and decided on the status of my mental health.  The Tribunal noted that I had not sought professional help in Australia sooner but did not give enough weight to the fact that I had sought help overseas and had continued my medication for the relevant period.

2. It is apparent from the Tribunal’s reasons that the Tribunal had regard to both the evidence of the treating doctor in India and the psychologist that the applicant had attended upon in Australia.  The consultation with the doctor in India is specifically referred to in paragraph 48 and the impact of it was discussed in paragraphs 38 to 39 where the Tribunal said:

   38. The Tribunal asked the applicant whether she had undertaken further treatment as advised in the psychiatrist’s report. The applicant said that she took the medicine prescribed to her. The Tribunal noted that follow up activities had been recommended and asked whether she had done this. The applicant said that she took the medicine.

   39. The Tribunal asked again what follow up had been undertaken. The applicant said that she was told to keep taking the medicine. The Tribunal asked whether she had revisited the psychiatrist. The applicant said that she had been back once but could not remember when. The applicant said the doctor had told her that she did not need to see her again. The Tribunal noted that this did not make sense given the recommendations in the report. The applicant said that she was told to take the tablets and she would be alright. 

3. It is clear that the Tribunal had regard to the expert evidence that was before it as well as the evidence of the applicant and her husband.

4. In light of the claim in the applicant’s first ground that she had continued her medication during the relevant period, it is not surprising that the Tribunal had difficulty accepting that she was suffering depression to the extent that it prevented her from studying during this period in circumstances where she had not consulted another physician, but had been continuing to take her medication. 

5. In the circumstances, I do not find that the applicant has established this ground.

Ground 2

1. Ground 2 is set out in the application as follows:

   2. The Tribunal was wrong in refusing my application because of my study gap, as I had acceptable reason for my study gap.

2. In this case, there is no question that the Tribunal clearly identified the reason that the applicant was relying upon to explain the gap in her studies, and carefully and critically examined the evidence available with respect to that reason.  Ultimately, it is a question of fact for the Tribunal to determine once the Tribunal has had regard to the relevant circumstances in the case. 

3. Having found that the Tribunal clearly identified the case being put by the applicant, and squarely and carefully considered it, any further argument amounts to an application for merits review, which is not available to the applicants.

Ground 3

1. The third ground is as follows:

   3. The Tribunal did not take into account all the studies that I had undertaken before and after the period I was suffering from depression and the fact that I am also currently undertaking studies.

2. The Tribunal’s Reasons disclose that it was well aware that the applicant had commenced her Certificate III in Hairdressing and not completed it, although this occurred during the course of the visa period.  The Tribunal also identified at paragraph 23 that:

   23. The Tribunal asked the applicant why she was living in Shepparton when she was studying in Melbourne. The applicant said that her friends and relatives were there. The applicant had been studying Certificate III in Hairdressing but has not completed the course. The applicant said that she had done an IELTS and obtained an Overall Band Score of 5.0 and did an ELICOS course of two months. The Tribunal noted that this was done after the gap in study.

3. The Tribunal also noted that the applicant was currently undertaking an Advanced Diploma in Management at para.31 of the decision.  If there were other courses of study that the applicant undertook during a period that is relevant to the decision, there does not appear to be any evidence of it before the Tribunal, nor before me. 

4. In the circumstances, I therefore find that this ground cannot succeed.

Conclusion

1. As the applicants have not been successful in establishing a ground, I therefore dismiss the application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  16 June 2014