Kaur v Minister for Immigration
[2011] FMCA 634
•12 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 634 |
| MIGRATION – Application for a judicial review of a decision of Migration Review Tribunal – Indian national on a student visa – requirement under condition 8202 to maintain enrolment and meet course requirements – whether ‘exceptional circumstances’ beyond the visa holder’s control for non-compliance with condition of student visa – applicant contends the decision of the Tribunal was effected by jurisdictional error. |
| Migration Act 1958 (Cth), ss.116, 116(1), 116(3) Migration Regulations 1994 (Cth), Regulation 2.43(2), Schedule 8, Condition 8202(3)(b) Educational Services for Overseas Students Act 2000 (Cth), ss.19, 20 |
| Applicant: | HARJEET KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 344 of 2011 |
| Judgment of: | Whelan FM |
| Hearing date: | 12 July 2011 |
| Date of Last Submission: | 12 July 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 12 July 2011 |
REPRESENTATION
| Applicant: | No appearance by the Applicant |
| Counsel for the Respondents: | Ms Symons |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Applicant’s application filed 16 March 2011 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the matter at $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 344 of 2011
| HARJEET KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
This is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 10 February 2011. The Applicant seeks orders that the decision of the Tribunal be quashed and the Tribunal be directed to determine the application according to law. The Applicant has failed to appear at the hearing this morning, and I am therefore proceeding on the basis of the written material that is before the Court.
The Applicant is an Indian national who arrived in Australia on 28October 2008, on a Student (Temporary) (Class TU) subclass 573 visa. That visa was granted on 15 October 2008 and had an expiry date of 7 March 2011. It was subject to a number of conditions, including relevantly for the purposes of this case, condition 8202 which required the Applicant to maintain enrolment and to meet course requirements.
The Applicant was enrolled in a Certificate III in Printing and Graphic Arts at Cambridge International College, and that course commenced on 8 December 2008. On 13 October 2009, Cambridge certified for the purposes of sub-cl.8202(3) of Schedule 8 of the Migration Regulations 1994 (Cth) (“the Regulations”), that the Applicant had not achieved satisfactory course attendance, and on the same day sent the Applicant a notice pursuant to s.20 of the Educational Services for Overseas Students Act 2000 (Cth).
On 6 November 2009, a delegate of the Minister gave the Applicant, by hand, a notice of intention to consider cancellation of her visa under s.116 of the Migration Act 1958 (Cth) (“the Act”). The notice indicated that Cambridge International College had certified that she had not achieved satisfactory course attendance and that it therefore appeared that she had failed to reach the requirements of subcl.8202. The notice contained an invitation to provide a written response, which the Applicant accepted.
In a decision dated 30 September 2010, a delegate of the Minister cancelled the Applicant’s visa under s.116(1)(b) of the Act, on the basis that the Applicant had not complied with condition 8202 of the visa and that the non-compliance was not due to exceptional circumstances beyond the Applicant’s control.
The Applicant then sought a review of that decision by the Migration Review Tribunal. She was invited to appear before the Tribunal and did so on 2 December 2010. On 10 February 2011, the Tribunal upheld the delegate’s decision, and on 16 March 2011 the Applicant lodged an application for judicial review.
Grounds
The grounds of the application were as follows:
That the decision of the Migration Review Tribunal was affected by jurisdictional error, in that the Tribunal:
(A) Failed to take relevant considerations into account. The particulars of that ground were that:
·The Tribunal rejected the Applicant’s claim that she suffered depression or that the relationship breakdown impacted on her to the degree that that the Applicant was unable to attend classes in the period between 8 December 2008 and 10 May 2009;
·She had exceptional circumstances beyond her control which resulted in her short attendance in the relevant period;
·The matter was not adequately interpreted at the hearing;
·She was threatened by her husband after the separation; and
·The Tribunal did not give weight, or enough weight, to the fact that the Applicant sought counselling following the separation from her husband, and that she had spoken to her doctor in India about her depression.
(B) Took irrelevant considerations into account. The particulars of that ground were that:
·The Tribunal found the Applicant had not suffered depression as the Applicant did not see a doctor in Australia in relation to her depression;
·The Tribunal also found that the Applicant was not threatened by her husband as the Applicant did not go to the police in relation to those threats, and
·The Tribunal did not conclude that the circumstances of the Applicant’s application were exceptional, having regard to the frequency of marital separations.
Proceedings before the Tribunal
In response to the letter from the department advising her that there may be grounds to cancel her visa, the Applicant stated that:
·She had come to Australia with her husband but had separated from him since;
·She had financial problems because she did not have a job and her husband was not supporting her;
·She had been threatened by her husband; and
·She was in a state of depression, and due to these reasons she was not able to attend classes.
In a written submission made in support of her application for a review of the decision by the Migration Review Tribunal, it was stated that the main reason why the Applicant did not attend classes was that she was too depressed due to the breakdown of her marriage, threats from her husband, and withdrawal of financial support by the husband’s family. She did not visit the doctor because of her financial situation.
When on 16 November 2010 the Tribunal invited the Applicant to appear before it, the invitation also included a request that she provide certain documentary material to support her claims. She did provide copies of the divorce orders made by this Court, a letter from the department confirming her request to have her spouse removed from her visa, certain bank statements, and a letter dated 7 February 2009 from Dr Pannu.
The Applicant appeared before the Tribunal and gave oral evidence, and she was assisted in this by an interpreter. Her evidence before the Tribunal is summarised in the Court Book.[1] The Applicant’s representative also attended the hearing and provided the Tribunal with submissions.
[1] Court Book at pages 146-147.
On the same day as the Tribunal hearing, the Applicant’s representative informed the Tribunal that the Applicant claimed that the interpreter at the hearing had misinterpreted her answers.[2] According to the record contained in the Court Book,[3] a Tribunal officer telephoned the Applicant’s representative the following day and stated that the Tribunal member had considered the facsimile and was of the view that the Applicant had been afforded a fair hearing. Questions were asked and interpreted and responses given and interpreted in a manner which suggested to the member that there was no difficulty in the Applicant understanding the questions, or was having any difficulty communicating through the interpreter and at no stage during the hearing did the Applicant indicate any difficulties.
[2] Ibid page 148.
[3] Ibid.
During the phone call the Tribunal officer also informed the Applicant’s representative that the Tribunal member was willing to consider submissions on the issue and identification of any specific instances where the Applicant believed she had been misinterpreted. The Tribunal also sent the Applicant a copy of the recording of the hearing. There were no submissions received from the Applicant directed at the issue of the quality of the interpretation of the hearing.
By letter dated 22 December 2010 the Tribunal, pursuant to s.359A of the Act, invited the Applicant to comment on or respond to information regarding correspondence from Cambridge International College concerning her attendance and notification of breaches, and also correspondence from a student welfare officer, Dr Kaur, who had been providing counselling services to the Applicant. The letter contained copies of the correspondence.
On 21 January 2011, the Tribunal sent another letter to the Applicant because it was of the view that the letter sent on 22 December 2010 did not contain sufficient particulars, and copies of the documents were also enclosed. The Applicant did not provide a response to either of those invitations.
The Tribunal affirmed the decision of the delegate to cancel the Applicant’s visa. It found that neither the Applicant nor her representative raised any concerns about interpreting during the hearing, nor did they identify which parts of the evidence were inadequately interpreted despite being provided with a record of the hearing. It also found that the Applicant’s failure to attend classes was raised with her twice – in February 2009 and again in April 2009 – before the Cambridge International College certified that she had not achieved satisfactory course attendance for the purposes of s.19 of the Educational Services for Overseas Students Act 2000 (Cth).
The Applicant sought to demonstrate that she had exceptional circumstances beyond her control warranting the cancellation decision being set aside. The Tribunal found that the Applicant’s evidence about her husband was inconsistent, and also found it highly improbable that she had been diagnosed with depression by a doctor in India over the telephone in April or May 2009.
The Tribunal also found that the Applicant had provided inaccurate information to Dr Kaur regarding her relationship with her husband, and that the Applicant separated from her husband shortly after her arrival in Australia. The Tribunal was of the view that marital breakdown was not uncommon, and separation almost invariably involved a degree of unhappiness. The evidence did not satisfy the Tribunal, however, that the Applicant was so affected by the separation that she was unable to access medical assistance and also found that she was not suffering from depression in the manner she described.
The Tribunal further found that the Applicant was not threatened by her ex-husband or his family in the manner she alleged and that generally she had significantly exaggerated or contrived evidence about the difficulty she had in attending classes.
The Tribunal was not satisfied that the Applicant was unable to see a doctor because of financial limitations, nor that financial limitations required her to sacrifice study time in order to seek or obtain employment. It was satisfied that the Applicant had not complied with the conditions of her visa.
As the Applicant had not complied with condition 8202, grounds for cancellation therefore existed, and the Tribunal was satisfied that the non-compliance was not due to exceptional circumstances beyond the Applicant’s control.
Submissions
The Applicant made no submissions in the proceedings before the Court today.
In written submissions, the First Respondent submits the decision record indicates the Tribunal had regard to all of the material evidence submitted by the Applicant in connection with the review, and comprehended the manner in which the Applicant’s claim for exceptional circumstances were put. It dealt with the Applicant’s claims and evidence and made specific reference to the documents submitted by the Applicant in support of her application. It also referred to the written submissions of the Applicant’s representatives.
The Tribunal’s reasons for decision demonstrate an awareness of the claims for exceptional circumstances, they are expressly acknowledged and dealt with, and the First Respondent draws the Court’s attention to the relevant parts of the decision of the Tribunal where the Applicant’s claims in relation to her depression and relationship breakdown are dealt with, and also her claims that she was threatened by her husband after the separation.
The First Respondent submits that the Applicant correctly set out the law in relation to exceptional circumstances and correctly applied the law in relation to each of the Applicant’s claims. The Tribunal’s findings with regard to the issue of exceptional circumstances were findings of fact open to the Tribunal and do not reveal any jurisdictional error.
In relation to the Applicant’s claim that the interpretation of the hearing was inadequate, the First Respondent also submits that no error arises from the Tribunal’s consideration and ultimate determination of the issue. The Applicant raised the issue of inadequate interpretation, the Tribunal contacted the Applicant and advised her that it considered she had had fair hearing. It gave her the opportunity to provide examples of exchanges which would identify specific deficiencies in the interpretation and the Applicant did not respond to that invitation.
The Tribunal adequately considered the issue of the quality of the interpretation and was guided in its task by matters relevant to such an assessment, including the lack of evident confusion in exchanges and responsiveness of the interpreted answers. Ultimately, given the Applicant’s failure to provide any submissions to identify any particular instance of poor interpreting, the Tribunal’s findings that it was fairly and correctly interpreted was open to it.
To the extent that the balance of the Applicant’s first ground of review seeks to challenge the sufficiency of the weight given to aspects of the Applicant’s claims, the First Respondent notes that the weight given to evidence is a matter entirely for the Tribunal.
In relation to the second ground, in relation to the Tribunal taking into account irrelevant considerations, this ground amounts to an argument that the Tribunal reached the wrong conclusion on the facts and invites the Court to engage in impermissible merits review.
The matters which the Tribunal took into account in determining that certain elements of the Applicant’s claims had not occurred, and in making its determination that the extant claim relating to marital breakdown was not exceptional, were not irrelevant considerations in the sense required to constitute sufficient judicial review.
The First Respondent submits that none of the considerations identified by the Applicant in her application for review, nor any of the other considerations which informed the Tribunal’s decision in the review application were irrelevant having regard to the subject matter, scope, and purpose of the visa cancellation regime established under s.116 of the Act.
Conclusions
The legislative framework is set out in s.116 of the Act. Insofar as it is relevant to the cancellation of the Applicant’s visa, it states that:
(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 …
(g) a prescribed ground for cancelling a visa applies to the holder …
(2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.
(3) If the Minister may cancel a visa … the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.[4]
[4] Migration Act 1958 (Cth).
Regulation 2.43(2) of the Regulations sets out the circumstances contemplated by s.116(3):
(2) For section 116(3) of the Act, circumstances in which the Minister must cancel a visa are: …
(b) in the case of a Student (Temporary) (Class TU) visa:
(ii) that the minister is satisfied that:
(A) the visa has not complied with condition 8202; and
(B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.[5]
[5] Migration Regulations 1994 (Cth),
The condition 8202(3)(b) required that a holder meet the requirements of the subclause. The holder met the requirements of the subclause if neither of the following applied:
(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 Educational 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.[6]
[6] Ibid at Schedule 8.
The Applicant does not challenge the finding that the education provider has certified that she was not achieving satisfactory course attendance. Both in her submission to the delegate and her application to the Migration Review Tribunal, the Applicant relied on the claim that non-compliance was due to exceptional circumstances beyond her control.
The circumstances relied on were the separation from her husband, threats made by her husband following the separation, her financial situation following the separation, and the depression she suffered as a result of those factors. In her application to this Court she also relies upon inadequate interpretation at the Tribunal hearing.
The role of the Court is not to review the merit of the application or to consider the correctness or otherwise of the Tribunal’s conclusions, provided those conclusions are consistent with the evidence before the Tribunal. In this matter I am satisfied from reading the Tribunal’s decision that it did not fail to take into account relevant considerations. The fact that it did not accept the Applicant’s evidence on certain matters does not mean that it failed to consider them.
In particular, in relation to the grounds raised in these proceedings, the Tribunal:
a)Considered the Applicant’s evidence that she suffered from depression to such a degree from the breakdown of her marriage that she was unable to attend classes, and rejected the claim that she suffered from depression.
b)Considered the other matters raised by the Applicant, including the claim that the husband had threatened her after the separation and her financial situation, and it rejected her evidence on the former and was not satisfied that financial difficulties either prevented her from seeking medical assistance or contributed to her depression.
c)Addressed the issue of the Applicant’s claim that the interpreting was inadequate, provided her with the relevant material, and invited her to identify where the interpreting had failed. She did not respond to that invitation.
In terms of the Tribunal failing to give weight or enough weight to other matters, the Tribunal noted that the Applicant had seen Dr Kaur on her evidence once or twice, and that Dr Kaur had noted that she was “under a lot of stress”.[7] The Tribunal also found that the information given by the Applicant to Dr Kaur was inconsistent with other statements made by her. The Tribunal gave no weight to the ‘fact’ that the Applicant had spoken to her doctor in India about her depression because it did not accept that she had done so.
[7] Court Book at page 155.
The Tribunal accepted that the Applicant had separated from her husband. It was not satisfied that as a result of that separation and subsequent threats from her husband or his family and her inability to access medical treatment that she suffered from depression to such a degree that she was unable to attend classes.
Those findings are matters which go to the merit of the Applicant’s case. This is not a matter where there was no evidence on which the Tribunal could make such findings, or where the Tribunal’s conclusions were unreasonable, illogical, or irrational.
I am therefore satisfied that there is no basis on which the Court should quash the decision of the Tribunal and the application is therefore dismissed.
I am further satisfied in relation to this matter that the application for costs should be granted, and the order will indicate that costs are payable in the sum of $5,865.00.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 17 August 2011
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