Leung v Minister for Immigration - [2009] FMCA 1122

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEUNG v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1122

MIGRATION – MRT decision – cancellation of student visa – education provider certified a failure to comply with minimum attendance requirements – whether due to exceptional circumstances beyond the control of the student – Tribunal’s assessment of depression caused by illness of grandmother – no error in the Tribunal’s identification of the ‘circumstances’ – no jurisdictional error established – application dismissed.

Migration Act 1958 (Cth), s.116
Migration Regulations 1994 (Cth), r.2.43, Sch 8, Subcl.8202

Maan v Minister for Immigration & Citizenship [2009] FCAFC 150

Applicant:

SHING CHI ROBERT LEUNG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1511 of 2009

Judgment of:

Smith FM

Hearing date:

5 November 2009

Delivered at:

Sydney

Delivered on:

5 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr D Oliveri

Solicitors for the Applicant:

Phoenix Attorneys

Counsel for the Respondents:

Mr A Markus

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1511 of 2009

SHING CHI ROBERT LEUNG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Mr Leung was born in 1989, and in 2006 received a visa to follow studies in Australia. He embarked on studies at Sydney Institute of Business and Technology Pty Ltd (‘SIBT’), and was successful during 2007. However, during the first semester of 2008 his attendances were seriously defective, and this had adverse effects on his academic results. This situation continued into semester 2, and his poor attendance led to warning letters from SIBT. He was invited to explain his absences, so as to avoid the issuing by SIBT of a negative certificate as to his attendances. Mr Leung was warned that a negative certificate could lead to the cancellation of his visa, because it would constitute a breach of a condition attaching to his sub-class 572 visa. That procedure allowed Mr Leung an opportunity to present evidence to SIBT explaining medical or other reasons for his unsatisfactory attendances, and there is no reason to assume that the education provider would not have given appropriate consideration to his excuses.
Mr Leung did submit to SIBT some explanations for his poor attendances. These were that he had been delayed when travelling to college, and that he arrived 10 to 15 minutes late when the weather was bad or there were traffic jams, and arrived after attendances were marked. He also claimed that he had a stomach disorder, and presented one medical certificate showing an unfitness to attend for two days due to gastroenteritis in June 2008. SIBT considered that his claim about travel was not acceptable, and that there was insufficient medical evidence explaining most of his absences. It therefore issued, on 6 August 2008, a document certifying in terms of the then-applicable provisions of condition 8202(3) (b), that Mr Leung was “not achieving satisfactory course attendance”.
No issue is now taken that the terms of the certificate did not reflect the relevant terms of the condition attaching to the applicant’s student visa, pursuant to amendments of the Migration Regulations in 2007 (see Maan v Minister for Immigration & Citizenship [2009] FCAFC 150 at [44].) The effect of the condition is that the issuing of the education provider’s certificate constitutes a “non compliance by the appellant with his visa conditions”.
After receiving the certificate, Mr Leung attended at an office of the Department of Immigration on 1 September 2008, therefore avoiding automatic cancellation under s.137J of the Migration Act. However, he was warned that the Department would consider cancellation under s.116(1). In relation to student visas, such cancellation is not discretionary due to the effect of s.116(3) and regulation 2.43(2)(b). This provides:
(2)For subsection 116 (3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a)….
(b)in the case of a Student (Temporary) (Class TU) visa:
(i) ….
(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.
There was no issue raised by Mr Leung before the delegate and the Tribunal, nor in this Court, that he had not ‘complied with condition 8202’ by reason of the issuing of the SIBT certificate. Mr Leung, however, maintained that his non-compliance was “due to exceptional circumstances beyond the visa holder’s control”.
In his interview with the delegate on 23 February 2009, he maintained the excuses for his non-attendance which he had previously presented to SIBT, i.e. transport problems and gastroenteritis. The delegate was not satisfied that these matters satisfied the ground for declining to cancel the visa, and made a decision to cancel the visa at the end of the interview.
Mr Leung then appealed to the Tribunal, where he was assisted by the solicitors who have also represented him in the present proceedings. They presented to the Tribunal a case raising an explanation for the education provider’s negative certificate and the antecedent poor attendances, which had not been presented to the education provider nor to the Department of Immigration. This was that during the first semester of 2008 and continuing into the second semester, Mr Leung had been suffering from symptoms of severe depression, as a result of the illness of his elderly grandmother in Hong Kong, whose health deteriorated over that period and led to her death in November 2008. Statements from Mr Leung, his mother, and his two flatmates referred to the closeness of his relationship with his grandmother, who had raised him while his parents worked. They persuasively explained unhappiness and upset felt by Mr Leung during the period that he was aware of her declining health and was worrying about it. His flatmates noted that he was staying up late, not talking to people, looking tired, and was sitting at his computer playing games until late at night. He now claimed that when he received the warning letters from his education provider, he was unable to think clearly, and took advice from his flatmates to present the poor excuses which they devised. Mr Leung had repeated these new claims at a hearing of the Tribunal on 22 April 2009, which he attended with his two flatmates.
His solicitors argued that his depression had prevented him from appreciating his symptoms of illness, and presenting them either to a doctor or to SIBT. They wrote in a letter dated 10 March 2009:
We submit that it is a well known symptom of depression that the sufferer becomes despondent and lacks the required energy to undertake the simplest tasks. Another well known symptom is that the person suffering from depression does not always appreciate the fact that depression is what is causing his lack of energy, lack of interest and despondency. The depression seems to engulf the sufferer causing these symptoms without the sufferer being aware of the cause. The applicant may have known that his grandmother’s condition was causing him sadness but probably did not make the connection at the time, between his lethargy which was a result of depression, and the feeling which manifested itself in sadness.
In the application to the Department, the applicant relied almost entirely on his friend Mr Lam who appeared to care for him. Mr Lam admits in his Statutory Declaration that he himself made up excuses for the applicant that he thought might be accepted by both the SIBT and DIAC. These excuses had little to do with the reality of the situation but the applicant was too depressed to raise any objection to the excuses proffered and indeed had confidence in his friend’s approach to the problem. It is submitted that this goes a long way towards explaining the applicant’s listless approach to his problem with both SIBT and DIAC.
Neither the applicant nor his friend appreciated the significance of stating the real underlying cause of the applicant’s disability in relation to his approach to his study. But it may be attributing a level of maturity to the applicant and his classmates beyond their age, to even expect them to be able to articulate that depression was the cause of the applicant’s problem. That the applicant was suffering from depression only became apparent to us after we were able to marshal full instructions from our client and his friends.
It is easy to feel sympathetic towards this submission, and the material that had been forwarded, but it invited the Tribunal to make a medical assessment which was unsupported by any medical evidence, in particular from a psychiatrist or psychologist who had considered the evidence about Mr Leung’s symptoms during 2008.
The Tribunal made a decision on 27 May 2009 which affirmed the delegate’s decision. After referring to the evidence before it, and to Mr Leung’s claims to be able to satisfy the “exceptional circumstances beyond (his) control” ground for avoiding cancellation, the Tribunal gave brief findings and reasons. Its significant reasoning is found at paragraphs [42] to [45]:
[42]The Tribunal notes the applicant did obtain a medical certificate dated 6 June 2008 diagnosing he was suffering from gastroenteritis and would be unfit to attend school/college from 6 June to 7 June 2008 inclusive. The Tribunal thus accepts that the applicant has at some time in the period up to SIBT’s s.20 notice suffered from this medical condition, but the Tribunal notes that no other medical evidence has been provided indicating he was unfit to attend classes in the period up to SIBT’s notice. Other medical evidence submitted to the Tribunal is for dates after the s.20 notice. The Tribunal does not accept the applicant would not have been able to obtain additional medical evidence if this illness or another medical condition was such that it prevented him from attending classes in the period up to SIBT’s s.20 notice.
[43]The Tribunal accepts that the applicant had a close relationship with his grandmother and that he was worried when she became ill in early 2008, and that he suffered from unhappiness and depressed mood because of this and because he was discouraged by his parents from returning to Hong Kong to see her. The Tribunal also accepts that this may have triggered an element of homesickness, which the evidence submitted to the Tribunal indicates the applicant had experienced in the early stages of his studies in Australia. The Tribunal notes, however, that the applicant did not seek any counselling or other assistance from SIBT regarding these problems and their possible effect on his attendance, nor did he seek professional medical advice about the problem. The applicant has claimed that because of his depressed mood he did not take any action and did not realise the seriousness of the issues relating to his attendance. Whilst the Tribunal appreciates the applicant may not have been fully aware of the precise nature of his condition, the Tribunal considers that he was aware it was affecting his studies, including his attendance, and the Tribunal considers it was within his control to seek assistance, whether from SIBT or a medical professional, to address the problem.
[44]The Tribunal also considers it was in the applicant’s control to raise the issue of the effect of his grandmother’s illness on his attendance when he lodged his internal appeal with SIBT. His evidence is that he was aware of the reason why he was sad or in a low mood, and the Tribunal considers therefore it was within his control to ensure that his appeal to SIBT contained details of the circumstances that caused his sadness or low mood, and consequently affected his attendance. The Tribunal does not accept, in the context of the evidence that he had received a warning letter from SIBT about matters including his attendance, that he would not have been aware of the seriousness of the issue.
[45]The Tribunal also considers it was within the applicant’s control to provide details of the circumstances he considered caused his poor attendance to the Department when responding to the Department’s NOICC letter. At this stage SIBT had already reported the applicant in relation to non-compliance of condition 8202, and the Tribunal does not accept it was beyond his control to provide this information, particularly given the evidence in Mr Lam’s statutory declaration (provided to the Tribunal) that the applicant was upset when SIBT did not accept his letter to them giving reasons for his poor attendance. The Tribunal has considered the evidence that he just relied on his friends to submit the relevant letters, and did not pay regard to the contents. The Tribunal does not accept, however, even if the applicant was worried about his grandmother’s health, that it was not in his control to have input into the content of the letters even if he relied on his friends to draft them. Nor does the Tribunal accept that the applicant (or his friend) did not appreciate the significance of providing true details about the underlying cause of the applicant’s attendance problems either to SIBT or the Department. The Tribunal considers that if the circumstances of his grandmother’s ill health were of such significance that they affected his attendance, it was in the applicant’s control to provide such details to SIBT and/or the Department.
The Tribunal said that it was satisfied that Mr Leung had not complied with condition 8202, and that the ground for cancellation in s.116(1)(b) therefore existed. It said it was satisfied that the non-compliance was not due to exceptional circumstances beyond his control. It said that in accordance with s.116(3) of the Act, the visa must be cancelled.
An amended application to this Court presents grounds of jurisdictional error which would allow the Court to set aside the Tribunal’s decision and to remit the matter. Unless I am satisfied that the Tribunal’s reasoning discloses jurisdictional error, I have no power to remit the matter. It is not part of the functions of this Court to consider whether the ground for avoiding cancellation has been made out on the evidence either before the Tribunal or such evidence as might be given to the Court. It is not within the power of the Court to address whether Mr Leung should be given permission to continue his studies in Australia. These are decisions for the Minister for Immigration to make.
The grounds of the amended application are:
1.The tribunal fell into jurisdictional error by failing to take account of relevant considerations in its application of sub-clause 2.43(2)(ii)(B) of the Migration Regulations with respect to the applicant’s non-compliance with condition 8202.
2.The tribunal fell into jurisdictional error by taking into account irrelevant considerations in its application of sub-clause 2.43(2)(ii)(B) of the Migration Regulations with respect to the applicant’s non-compliance with condition 8202.
The contentions explaining the relevant considerations which were not addressed, and the irrelevant considerations which were taken into account, are not indicated in particulars accompanying the application. They emerged in the course of written and oral submissions presented on behalf of Mr Leung today. As I understood the argument of his solicitor, it was that the Tribunal addressed the wrong question in the paragraphs which I have extracted above, and failed to address the right question.
Its error started with a failure to appreciate that the “exceptional circumstances” claimed to exist by Mr Leung were those concerning his grandmother’s illness and not his own illness. It was submitted that if the Tribunal had appreciated that analysis, it would have found in favour of Mr Leung. It was submitted that the Tribunal’s findings appeared to accept the existence of the grandmother’s illness had an effect on his attendance. In particular, in first part of the last sentence at [43] the Tribunal accepted that he was suffering from a condition which was affecting his studies, including his attendance. It appeared to accept that this was the result of his worry, unhappiness and depressed mood from his grandmother’s illness. On those findings, it was submitted that the Tribunal should have addressed whether the grandmother’s illness was within the concept of “exceptional circumstance”, whether it caused the issuing of the negative certificate of the education provider, and whether its occurrence was beyond the control of Mr Leung. The Tribunal failed to follow that analysis and therefore, failed to address relevant considerations.
Instead, it was submitted that the Tribunal addressed irrelevant matters. It considered the extent of Mr Leung’s own illness, and engaged in an assessment of whether its consequences for his college attendances were within Mr Leung’s control. This was an irrelevant consideration. It was irrelevant for the Tribunal to consider whether he had the mental capacity to seek assistance either from his education provider or the medical profession, so as to improve his attendances, or at least present his true personal difficulties to SIBT so as to persuade it not to issue a negative certificate. It was submitted that evidence of the Tribunal addressing these irrelevant considerations appeared in the second half of the last sentence of [43] and in the discussion of the Tribunal in [44] and [45].
However, I do not accept that the Tribunal was bound to follow the confined analysis of the ‘exceptional circumstances’ which was submitted, and that it therefore failed to address relevant considerations and addressed irrelevant considerations.
I do not accept that the Tribunal was bound to isolate the illness of the grandmother as constituting all the “exceptional circumstances” which were to be addressed, to apply a causal test from that illness to the issue of the SIBT certificate, and to consider that illness alone under the ‘control’ test. Rather, in my opinion, the claims put forward by Mr Leung presented his own mental condition and its surrounding circumstances and effects as providing the exceptional circumstances. It was his condition, including its causation by his grandmother’s illness and his isolation from his family, which the Tribunal was bound to consider, to decide whether its effects were “beyond the visa holders control”, in so far as they may have led to the education provider issuing a negative certificate.
In my opinion, it was very relevant for the Tribunal to consider whether it was satisfied that Mr Leung’s mental condition at relevant times during 2008 was so incapacitating in its effects on his motivation and capacity to exercise appropriate judgment as to his own behaviour, as to remove from his control his ability to address his difficulties of attending college by raising them with his education provider or seeking medical help. The Tribunal addressed that issue in [43], and it made a factual assessment adverse to Mr Leung in relation to that issue. Its adverse assessment provided the reason for its decision.
This reasoning did not engage in any characterisation of whether Mr Leung’s circumstances were ‘exceptional’, but may have assumed that they might be so characterised, including his grandmother’s illness and its effects on Mr Leung’s mental state. In effect the Tribunal assumed that if Mr Leung’s mental state did give rise to serious mental illness of the nature put forward, then it would have been due to exceptional circumstances. However, it did not accept that he had suffered from an illness sufficient to put out of his control his ability to remedy its effects on his attendance at college and the issue of a negative certificate by SIBT in relation to his attendances. Mr Leung therefore failed before the Tribunal under the ‘beyond the visa holder’s control’ test in reg.2.43(2)(b)(ii)(B).

An assumption that seriously debilitating depression might in some circumstances provide ‘exceptional circumstances’ would, in my opinion, have been consistent with authorities on the meaning of that provision. The Full Court has recently said in Maan (supra):
[51] Although the expression "exceptional circumstances" is not defined in the regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. (cf Baker v R (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[25])
On my above analysis of the claims put forward by Mr Leung and of the Tribunal’s reasoning, it was relevant for it to consider in [44] Mr Leung’s capacity to present his difficulties to SIBT during 2008 during his ‘internal appeal’, so as to avoid the non-compliance with condition 8202 which occurred when it issued a negative certificate concerning his attendances. It was in the course of that proceeding that Mr Leung had the opportunity to persuade SIBT to excuse his non-attendances. In [44], the Tribunal found that during the appeal procedure Mr Leung was aware of the seriousness of the issue, and that it was within his control to raise with the education provider the effects of his grandmother’s illness on his attendance. These findings addressed elements in the ‘circumstances’ which led to the issue of the negative certificate. I consider that they were open to the Tribunal on the evidence before it.
Turning to the Tribunal’s reasoning in [45], I note that a consideration of Mr Leung’s later conduct in relation to the presentation of his excuses to the Department of Immigration was not directly relevant to the issues raised by reg.2.43(2)(b)(ii)(B). However, I do not read [45] as showing that the Tribunal gave consideration to that matter in a manner revealing jurisdictional error affecting its decision in a material way. Rather, in my opinion, the Tribunal saw Mr Leung’s persistence during his 2009 interview in the Department with the explanations from which he later resiled, as confirmatory of its assessment of the nature of his mental state during 2008. This is shown by its conclusion in the last sentence of that paragraph, where it states:
The Tribunal considers that if the circumstances of his grandmother’s ill health were of such significance that they affected his attendance, it was in the applicant’s control to provide such details to SIBT and/or the Department.
For all the above reasons, I am not satisfied that the Tribunal’s reasoning reveals jurisdictional error by taking into account irrelevant considerations or failing to take into account relevant considerations.
Overall, I consider that the Tribunal’s reasoning was open to it on the evidence, particularly in the absence of medical evidence showing a seriously disabling mental illness during 2008. I do not accept the submission that there was no evidence upon which the Tribunal could form the assessments which it made, as to what remedies were within the control of Mr Leung. If there had been professional medical opinion giving a diagnosis of Mr Leung’s mental state and containing opinions as to disabling symptoms and their effect on his conduct, then the Tribunal might have been bound to have applied that evidence in the absence of contrary medical opinion. However, that evidence was absent, and the Tribunal was left to form its own judgments about Mr Leung’s state of mind during 2008.
In my opinion, therefore, the arguments presented to me can be characterised in similar terms as the Full Court in Maan (supra) at [52]. As did the Full Court in that case, I might differ with the Tribunal’s understanding of the behaviour of young men separated from their family while studying in Australia. However, its findings of fact were “clearly open to the Tribunal, and do not reveal jurisdictional error”.
For the above reasons I must dismiss the application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 18 November 2009