SHEEMAR v Minister for Immigration

[2012] FMCA 1232

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHEEMAR v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1232

MIGRATION – Judicial review – Migration Review Tribunal – subclass 572 visa – visa cancelled for non-compliance with visa condition – unsatisfactory course attendance – whether there were exceptional circumstances beyond the applicant’s control – medical evidence – whether the Tribunal understood the applicant’s claim – requirement not to review decisions with an eye attuned to error – whether the cumulative effect of a medical condition and a work placement constituted exceptional circumstances – Wednesbury unreasonableness – Tribunal’s decision open to it – application dismissed.

Education Services for Overseas Students Act 2000 (Cth), s.19
Migration Act 1958 (Cth), s.116
Migration Regulations 1994 (Cth), r.2.43(2)(b)(ii)

Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Wu v Attorney-General (Commonwealth) (1997) 79 FCR 303

Applicant: GAGANDEEP SHEEMAR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 265 of 2012

Judgment of: Burnett FM

Hearing date: 12 November 2012

Date of Last Submission: 12 November 2012

Delivered at: Brisbane

Delivered on: 20 December 2012

REPRESENTATION

Counsel for the Applicant: Mr L. Burrow

Solicitors for the Applicant: Rajesh Gopal, Solicitor

Counsel for the Respondents:

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Application filed 22 March 2012 is dismissed.

2. Unless either party seeks other orders within twenty-one (21) days of this order, the applicant pay the respondents costs fixed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 265 of 2012

GAGANDEEP SHEEMAR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks review of a delegate’s decision affirming an earlier decision to cancel the applicant’s student visa for non-achievement of satisfactory course performance.

Background Facts

1. The applicant was granted a Student (Temporary) (Class TU) Subclass 572 Visa on 4 May 2009. The visa covered the applicant’s confirmation of enrolment in a Diploma of Building and Construction (Building) with Careers Australia Institute of Training Pty Ltd (CAIT) for a course to run from 12 July 2010 to 1 July 2011.

2. On 9 October 2009, the applicant presented to the Princess Alexandra Hospital (PA Hospital) complaining of dysuria associated with haematuria. He was examined and referred to Urology Outpatients for follow-up. Subsequently over the following 10 months the applicant remained under outpatient care at the PA Hospital before undergoing a medical procedure at that hospital on 6 August 2010. The records of the procedure noted the procedure as a “flexible cystoscopy.” The procedure was recorded as having started at 11:13am that day and concluding at 11:17am. That is to say that it took four minutes. The hospital records note that the procedure involved the application of local anaesthetic only.

3. The post-operative plan was for discharge to the care of his general practitioner (GP), with the GP to re-refer if there were further haematurias or UTI’s. Later evidence obtained in the form of a medical certificate from Dr A. Callaghan certified that the applicant was receiving medical treatment for the period 27 August 2010 to 3 December 2010 inclusive. It stated that “he will be unfit to continue his usual occupation.” That certificate was dated 5 April 2011.

4. Prior to securing the certificate, the applicant was issued notice from CAIT dated 4 February 2011 that as of 13 December 2010 the applicant had not been making satisfactory course progress. CAIT’s letter of 4 February 2011 noted:

   “…

   You were first identified as not making satisfactory course progression on 13 December 2010 and CAIT implemented our intervention strategy on 13 December 2010. At this point you were advised that unsatisfactory course progress in two consecutive study periods for a course could lead to you being reported to the Department of Immigration and Citizenship (DIAC) and could result in the cancellation of your student visa.

   …”

5. The letter of 4 February proceeded to note that an intervention strategy had been agreed but that the applicant had then been assessed as “… making unsatisfactory progress in a second consecutive compulsory study period …” The letter proceeded to inform the applicant that CAIT intended to report the applicant to the Department and informed the applicant of his appeal rights for review of CAIT’s decision.

6. The applicant did not exercise any appeal rights to CAIT. Ultimately, a certificate issued pursuant to s.19 of the Education Services for Overseas Students Act 2000 (Cth) on 18 March 2011. Upon receipt of that certificate the applicant sought a certificate from Dr Callaghan certifying the applicant’s inability to attend college between 27 August 2010 and 3 December 2010. This certificate appears to have been alluded to in the applicant’s response to the Minister’s s.19 notice in the applicant’s letter dated 7 April 2011.

7. By letter of 8 April 2011 the Department wrote to the applicant informing him that there may be grounds for cancellation of his visa and advising him of the opportunity to make a written response. He was informed that if the decision maker was satisfied that he had not complied with visa Condition 8202 his visa would be cancelled unless the non-compliance was due to exceptional circumstances beyond his control, that is, reasons that prevented him from complying with visa Condition 8202. Again, he was invited to give reasons in respect of exceptional circumstances. It appears that the applicant’s response to that notice was contained in his letter of 7 April 2011 and the attached medical certificate of Dr Callaghan.

8. Ultimately, notice of cancellation under s.116 of the Act was sent to the applicant on 17 June 2011. The applicant unsuccessfully sought review of the delegate’s decision. He was informed of the delegate’s decision on 24 February 2012 and now seeks review of that decision.

Grounds of Review

1. The applicant’s grounds of review in his application filed 22 March 2012 were as follows:

   “1.    The decision maker made an error of law amounting to a jurisdictional error in considering whether ‘there were no exceptional circumstances beyond the Applicant’s control’ that contributed to non-compliance with condition 8202.

   Particulars of error of law

   A.The Tribunal was required to consider and be positively satisfied, pursuant to r.2.43(2)(b)(ii) that:

   i.The Applicant had not complied with condition 8202

   ii.There were no exceptional circumstances beyond the Applicant’s control

   B.The Tribunal was required to consider, amongst other matters, whether the Applicant’s illness was an exceptional circumstance beyond the Applicant’s control that may have contributed to the non-compliance. In that respect the errors were:

   Medical evidence

   i.The Tribunal rejected, in the absence of any evidence to the contrary, nor as to any findings made with respect to the medical practitioner, a medical certificate covering a time period certified by a Doctor;

   ii.And that rejection was so unreasonable that it amounted to a failure by the Tribunal to consider the matters before it fairly and on the merits; and

   iii.The Tribunal made an assertion, without any medical basis or evidence, that a medical procedure that took ‘only 4 minutes’ could not be an exceptional circumstances; [sic]

   iv.That view, made in the absence of any evidence, lead to the Tribunal making a decision that was so unreasonable that no reasonable decision maker could have made it; and

   v.The Tribunal formed a view that the Applicant was not medically incapacitated during his Diploma course;

   vi.That consideration is not consistent with either the evidence and further the obligation under r.2.42(2)(b)(ii) is not so limited and the Tribunal ought to have considered whether the mere fact of illness and/or reduced faculties was sufficient to amount to an exceptional circumstances; [sic]

   vii.That is, the Tribunal improperly narrowed the scope of its consideration and did not consider the Application within the breadth of the jurisdiction conferred upon it.

   Concurrent Course / Work Placement

   viii.The Tribunal formed the view that the concurrent enrolment in the practical component of the certificate III course was no [sic] an exceptional circumstance because other students were also required to do so.

   ix.In that respect the Tribunal erred in that it failed to consider, on the merits, whether the entirety of the conduct of the college amounted to an exceptional circumstance within the meaning of the
   Act and that the circumstance was brought about by the conduct of the college.

   x.That error arose through a failure to apply the correct, and broad meaning, of r.2.43(2)(b)(ii).”

Medical Evidence

1. The essence of the applicant’s complaints concerning the Tribunal’s conclusions on the medical evidence were that the Tribunal:

   a)Rejected the evidence of Dr Callaghan in the absence of evidence to the contrary;

   b)Drew conclusions upon the evidence without having made proper enquiry, i.e. the conclusion concerning the significance of a four minute medical procedure; and

   c)Generally failed to accept that the medical evidence demonstrated exceptional circumstances despite that being open on the evidence.

2. The Tribunal plainly understood that the applicant’s claim with respect to his medical condition was premised upon a claim on explained exceptional circumstances[1] based upon his being medically unfit because of his cystopacy. Generally, concerning the medical evidence, the Tribunal found:

   [1] Decision at paragraphs [45], [50] and [77].

   “…

   [80]  The Tribunal places no weight on Dr Callaghan’s medical certificate dated 5 April 2011. This certificate was issued 4 months after the last date on which the applicant was said to be unfit. Notwithstanding the applicant’s assertion to the contrary, there is nothing on the face of the certificate to indicate that Dr Callaghan examined the applicant prior to 5 April 2011, and the Tribunal does not accept that he did.

   [81]  The Tribunal places no weight on the medical appointments attended by the applicant in 2009, as this was prior to the commencement of the applicant’s Diploma course in July 2010.

   [82]  The Tribunal accepts that the applicant underwent a 4 minute procedure on 6 August 2010. The Tribunal finds that this does not constitute an exceptional circumstance. Many international students have to attend medical appointments or undergo brief procedures during the course of their study.

   [83]  The Tribunal does not accept that the applicant was medically incapacitated during his Diploma course. There is no evidence or weight to support this. Further, the applicant has stated that he was working from 6.30am to 3 or 4 pm for part of the time he claims to have been incapacitated. The Tribunal does not accept that he would have been able to undertake such work if he was medically incapacitated.

   …”

3. It is these findings that particularly aggrieve the applicant. First he contends that the Tribunal was in error for rejecting the evidence of Dr Callaghan. What the Tribunal concluded was that Dr Callaghan had not seen the applicant before the date of the certificate. In reaching that view, it rejected the evidence of the applicant that he did indeed consult with Dr Callaghan.[2] The matter was a matter of fact open to the Tribunal. In my view, Dr Callaghan’s certificate is ambiguous in its expression. While the PA Hospital report noted that the applicant was discharged to his GP for post-operative, care Dr Callaghan’s certificate provides no indication that he was indeed the medical practitioner to whom the applicant presented.

   [2] Decision at paragraph [46].

4. The applicant contends that the Tribunal’s refusal to accept Dr Callaghan’s evidence was unreasonable in the Wednesbury Corporation sense.[3] I do not agree. The certificate post-dated the last date of unfitness for duty by approximately five months. It was reasonably open to infer that Dr Callaghan was being requested, ex post facto, to express a view concerning the applicant’s fitness for work. As Dr Callaghan is a GP it would not have been unreasonable for the Tribunal to conclude that the applicant was one of many patients that attended his practice, and accordingly he would have relied upon clinical notes to assist him in refreshing his memory and his assessment of the applicant’s then state of fitness for work. There is in fact nothing on the face of the material to indicate that Dr Callaghan was a member of that practice at the material time. Furthermore, given that the certificate was issued by a GP, the Tribunal may also have inferred, as it must have, that if the applicant did not present to Dr Callaghan then he must have been seen by another GP in the practice. That can be the only inference open unless the Tribunal were also prepared to find that it did not accept Dr Callaghan’s certificate as genuine, which it did not.

   [3] Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223.

5. Whether or not those conclusions were correct is not to the point as factual errors do not enliven a right to review: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 352. They were conclusions reasonably open on the material as presented to it and accordingly available to the Tribunal. The Tribunal was not bound to find the matter contended for by the applicant simply because there was no evidence to the contrary.

6. It follows that the applicant’s contention that the Tribunal rejected Dr Callaghan’s medical certificate is not correct. It simply afforded it no weight. It was open for it to do so in the absence of contrary evidence and its finding that his certificate had no weight was open.

7. Next the applicant submitted that the Tribunal erred in finding that a “four minute” procedure would not constitute an exceptional circumstance.

8. At paragraph [82] of the decision the Tribunal, stated that it accepted that the applicant underwent a four minute procedure on 6 August 2010, but it did not find that this constituted “exceptional circumstances.”

9. The thrust of the applicant’s submissions were that the Tribunal was not sufficiently expert in the subject matter or armed with sufficient information to make such a finding. While I accept that that is the case, I think that the applicant’s submission on this point overreaches. First, upon a fair reading of the Tribunal’s decision and having regard to the background facts, I do not think that the Tribunal was confining itself to the procedure alone. The Tribunal noted the applicant’s medical history. In that respect it is significant to note that the subject procedure was not regarded as urgent, the first appointment having been made 10 months earlier; the procedure was conducted under a local anaesthetic only; and, the applicant was discharged to his GP for post-operative care. That is, he was not even referred to the hospital’s urology clinic where he had previously been seen. Furthermore, this was the only medical condition that the applicant complained of at any material time and it appeared from the material that, save for attendances upon a GP evidenced by Dr Callaghan’s certificate, there is nothing to suggest any post-operative complications.

10. The applicant’s submission is in my view one premised upon an overly critical view of the Tribunal’s expression in its decision and one which looks too keenly at the Tribunal’s expression with an eye attuned to error: Wu v Attorney-General (Commonwealth).[4]

    [4] (1997) 79 FCR 303.

11. In reality the Tribunal was plainly looking at the applicant’s medical condition against the background of the other relevant material. That included the fact that the applicant’s failure to achieve satisfactory course progress was in respect of the period following the conclusion of Dr Callaghan’s noted period of unfitness for duty. In particular, it was clear from CAIT’s letter of 4 February 2011 that it was the applicant’s failure following CAIT’s intervention strategy, in respect of a period following the conclusion of Dr Callaghan’s noted period of unfitness for duty, that was material. In particular it was clear from the letter of 4 February 2011 that it was the applicant’s failure to fulfil the intervention strategy that led to the notice. Plainly, that factor was relevant to the Tribunal’s observations at paragraph [46] of its decision that the medical certificate related to the period 24 August to 3 December. Although not stated, those dates were plainly significant to the Tribunal and it is fair to infer that that is because those dates preceded the relevant dates provided for in the notice of 4 February 2011 which included the dates the subject of the intervention strategy in respect of which the notice issued.

12. In any event, even if I am in error and the Tribunal confined its consideration only to the question of the procedure in August, the facts do not assist the applicant. At its highest, the applicant was unfit to attend classes until 3 December 2010. The intervention strategy referred to in the letter of 4 February 2011 was implemented from 13 December 2010. It was the applicant’s unsatisfactory course progress in two consecutive study periods following that date that led to him being reported to the Department. On the evidence there is no causal link between his complained medical condition and the failure to achieve satisfactory course progress which gave rise to CAIT’s decision to report him to the Department. In other words, the consideration complained of by the applicant is an irrelevant consideration; see Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[5]

    [5] (1986) 162 CLR 24.

13. The final compliant by the applicant was that the Tribunal generally failed to accept that the medical evidence demonstrated exceptional circumstances despite that being open on the evidence. For reasons I have addressed immediately above I do not accept that to be the case. As I have noted, accepting the applicant’s evidence at its highest (and the Tribunal did not), the fact remains that the applicant’s medical condition had abated by the time the intervention strategy was put into effect. It was the applicant’s failure to fulfil the intervention strategy that led to his reporting. There is no evidence to suggest that at the time of the implementation strategy, that is from 13 December 2010, the applicant was suffering any medical condition which would have impacted upon his ability to engage in the implementation strategy. In other words, there were no exceptional circumstances upon that ground.

Ground 2 – Concurrent Course – Work Placement

1. The second ground advanced by the applicant is that the Tribunal formed the view that the concurrent enrolment in the practical component of the Certificate III course was no exceptional circumstance because other students were required to do so. It was submitted that the Tribunal erred in that regard in that it failed to consider on the merits whether the entirety of the contract with the College amounted to an exceptional circumstance within the meaning of the Act and that the circumstance was brought about by the conduct of the College. It was alleged that error arose through a failure to apply the correct and broad meaning of r.2.43(2)(b)(ii).

1. In its submissions the applicant contended that there was no indication in the decision of the Tribunal to show that it considered the impact of the work placement on the applicant against his individual circumstances, that is, that he was a student who was medically unfit. It was submitted that the failure to consider the cumulative effect of the medical condition and the requirement to undertake the work placement amounted to a failure to consider the entirety of the exceptional circumstances.

2. The applicant submitted that the Tribunal’s decision was unreasonable in that it was one which no rational or logical decision maker could arrive at on the same evidence. It submitted that the test is as was provided in Minister for Immigration and Citizenship v SZMDS[6] per Crennan and Bell J at [130] – [131], where their Honours stated:

   [6] [2010] HCA 16.

   “[131] … the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   …”

3. It was submitted that in this case the exclusion of the medical evidence was arbitrary and unreasonable and that no decision maker acting upon it could reasonably do so in the absence of any contradictory evidence. It was further submitted that, when considered cumulatively with the requirement to undertake work placement, it constituted exceptional circumstances.

4. I have addressed the issue of medical evidence earlier. Plainly, at the material time it was not an operative factor. That is so even putting to one side the Tribunal’s observations at paragraph [83] that it was not satisfied that the applicant was medically incapacitated during the entire course.

5. In that regard it is worth noting that the Tribunal did not observe that a work placement requirement applied to all students, and that even if the work placement related to his Certificate III course and not to the Diploma course which he was then studying the applicant’s evidence was that none of these Certificate III students had completed a work placement prior to the scheduled end of the Certificate III course. Accordingly it concluded that this was a circumstance which applied to all students, or at least all continuing students.[7] It observed that if the applicant had concerns about undertaking the Certificate III work placement during completion of the Diploma course he had a number of avenues open to him; he could, for example, have sought to delay commencement of the Diploma course. It noted that he did not do this but indeed that he claims to have requested leave from the Diploma course on medical grounds but did not provide a medical certificate in support of his request, and that CAIT acted unreasonably in refusing medical leave without a medical certificate. It noted also that the applicant provided no evidence to indicate that he complained to the education provider about the demands of his work placement and he did not lodge an appeal with CAIT raising that matter and raised it only for the first time in the course of the Tribunal hearing.[8]

   [7] Decision at paragraph [84].

   [8] Decision at paragraph [57].

6. It follows in my view that not only was there no need for the Tribunal to consider the medical evidence and its cumulative effect upon the applicant in undertaking a placement, but that on the facts it was open to the Tribunal to conclude as it did that the work placement did not give rise to exceptional circumstances.

Conclusion

1. The applicant seeks review of the Tribunal’s decision affirming a delegate’s decision to cancel his visa. The visa was cancelled because of the issue of a s.19 ESOS Certificate and the applicant’s failure to demonstrate exceptional circumstances giving rise to the breaches. The applicant contended exceptional circumstances were demonstrated by:

   a)His medical condition; and

   b)His medical condition cumulatively considered with a work placement.

2. The Tribunal’s decision was open to it:

   a)On the facts, and in any event, the medical condition had no causal association with the applicant’s failure to comply with course progress requirements; and

   b)There was no cumulative failure to consider the medical condition and a work placement.

Orders

1. Application dismissed.

2. Unless either party seeks other orders within twenty-one (21) days of this order, the applicant pay the respondents costs fixed in the sum of $6,471.00.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date:  20 December 2012