Singh v Minister for Immigration & Citizenship
[2012] FMCA 1073
•20 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR | [2012] FMCA 1073 |
| MIGRATION – Cancellation of TU-572 Vocational Education and Training Sector visa for breach of Condition 8202 pursuant to s.116 of Migration Act 1958 (Cth) – Migration Review Tribunal upheld decision of Minister for Immigration & Citizenship’s delegate – whether death of family member overseas constitutes “exceptional circumstances” to satisfy reg. 2.43(2)(b) of Migration Regulations 1994 (Cth) – death of a family member overseas does not constitute “exceptional circumstances” – application dismissed. |
| Education Services for Overseas Students Act 2000 (Cth), s. 19, 20 Migration Regulations 1994 (Cth), r. 2.43 |
| Abebe v Commonwealth (1999) 197 CLR 510; (1999) 162 ALR 1 Bao v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 1044 Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 Ex parte IBM Global Services Australia Ltd [2005] FCAFC 66 Gido-Christian v Minister for Immigration [2007] FMCA 825 Haque v Minister for Immigration and Citizenship (No. 3) [2010] FCA 772 Hong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1308 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 Li v Minister for Immigration and Citizenship [2008] FCA 902 Lin v Minister for Immigration & Anor (2008) 218 FLR 177 Luu v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 518 Luu v Minister for Immigration and Multicultural Affairs (2002) 127 FCR 24 Maan v Minister for Immigration and Citizenship and Anor (2009) 179 FCR 581 Maroon v Minister for Immigration and Citizenship (2008) 176 FCR 450 Minister for Immigration and Citizenship v MZXPA & Anor [2008] FCA 185 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 Minister forImmigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486 Minister for Immigration and Multicultural and Indigenous Affairsv Ahmed (2005) 143 FCR 314; [2005] FCAFC 58 MZYHT v Minister of Immigration & Citizenship [2011] FCA 659 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138; [1952] HCA 10 R v Kelly (Edward) [2001] 1QB Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425; [2001] HCA 28 S14/2002 v Refugee Review Tribunal [2004] FCAFC 171 Surinder Singh v Minister for Immigration and Anor [2010] FMCA 1000 SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487; [2008] FCAFC 91 SZLZJ v Minister of Immigration and Citizenship [2009] FMCA 341 Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1; [2005] FCAFC 218 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; [2000] FCA 906 Zhongyi Li v Minister for Immigration and Citizenship [2010] FMCA 583 Zubar v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 |
| Applicant: | HARJINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1639 of 2011 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 12 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N. Dobbie of Dobbie and Devine Immigration Lawyers |
| Counsel for the Respondents: | Mr D. Godwin |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The Amended Application filed on 16 September 2011 is dismissed.
The Applicant pay the First Respondent’s costs, of and incidental to the Application, as agreed or assessed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1639 of 2011
| HARJINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court Orders made on 23 August 2011, the solicitor for the first respondent was required to file a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and volume of material provided is identified as the Court Book (“CB”). On the date of the hearing, the Court Book was marked Exhibit “A”.
At the first court date directions hearing, the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material. The applicant was also required to file and serve a short written outline of submissions and a list of authorities 14 days before the hearing. These orders have been complied with.
Background
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking relief in respect of a decision of the Migration Review Tribunal (the “Tribunal”) affirming the decision of a delegate of the Minister for Immigration (the “Minister”) to cancel the applicant’s subclass TU-572 Vocational Education and Training Sector visa (the “Visa”).
Final orders sought by the applicant were:
1. An Order that the decision of the Tribunal be quashed
2. A Writ of Mandamus directed to the Tribunal to determine the Applicant’s application for review according to law.
3. A Writ of Prohibition preventing the First Respondent, his servants and agents from acting upon or giving effect to the Tribunal’s decision.
4. Such other relief as the Court considers appropriate.
5. Costs.
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. This information is extracted from the Court Book and each item contains a Court Book reference for that material.
The applicant is a citizen of India (CB 20). On 1 April 2009, the applicant was granted the Visa (CB 20).
On 10 August 2010, the applicant’s education provider, Apex Institute of Education (“Apex”), sent the applicant a s.20 notice in which the education provider certified the applicant, registered for a Diploma of Management course, as not achieving satisfactory course attendance for s.19 of the Education Services for Overseas Students Act 2000 (Cth) and for Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (CB 1; 91).
The applicant was subsequently notified, on 27 August 2010, that a delegate of the Minister was considering cancelling his Visa (CB 91). The notice stated that the applicant had breached condition 8202 (CB 8-16). The applicant responded to the notice on 29 August 2010 (CB 15-17). In a letter to the Department of Immigration and Citizenship (the “Department”) the applicant claimed that the reason for his non-compliance with condition 8202 was because of the sudden death of his grandmother. As a result of her death he claims he was left in deep shock and that it took about a month and a half to come out of that shock (CB 18). The applicant did not attend Apex during this time, which resulted in unsatisfactory course attendance.
The Delegate’s Decision
On 17 January 2011, a delegate of the Minister made the decision to cancel the applicant’s visa (CB 31-38) under s.116(1)(b) of the Migration Act, on the basis that the applicant had not complied with condition 8202 (CB 87). The delegate accepted that the death of the applicant’s grandmother would have caused him a certain degree of distress. The delegate, however, did not accept that the applicant was placed in a situation beyond his control that resulted in unsatisfactory attendance (CB 36). The delegate noted that the applicant did not provide any evidence that he sought medical or psychological assistance to mitigate the shock and loss of senses he felt which caused him to miss classes (CB 36).
The Tribunal’s Decision
On 25 January 2011 the applicant applied to the Tribunal for review of the delegate’s decision (CB 87).
On 28 June 2011 the applicant attended a hearing held by the Tribunal (CB 91). On 4 July 2011 the Tribunal made a decision affirming the delegate’s decision to cancel the applicant’s Visa. It is this decision of the Tribunal, MRT Case Number 1100700 that is presently under review in this Court.
The applicant informed the Tribunal at the hearing that he accepted that he did not comply with the attendance requirements of condition 8202. The Tribunal found that the applicant had not complied with condition 8202(3)(b) and therefore had not complied with Condition 8202 of the visa (CB 92 at [30]).
The Tribunal found that the applicant had attributed his unsatisfactory attendance, essentially, to the emotional effects on him of the illness and subsequent death of his grandmother in India (CB 92 at [31]). The Tribunal considered that the applicant’s circumstances have been experienced by many overseas students studying in Australia and in that sense, the applicant’s circumstances were not exceptional (CB 92 at [31]). The Tribunal also noted the absence of any evidence from professional medical sources supporting the applicant’s claim that he was unable to attend his course classes. The applicant’s representative argued that in the applicant’s culture, there is a stigma attached to seeking professional help for emotional and psychological problems (CB 32 at [31]). The Tribunal stated that there was very little documentary evidence that would allow the Tribunal to make an informed judgment as to the actual effect of the grandmother’s death on the applicant’s capacity to attend his course classes. Based on the evidence provided by the applicant the Tribunal was satisfied that the applicant’s non-compliance with Condition 8202 was not due to exceptional circumstances beyond the applicant’s control.
The Proceedings
On 1 August 2011 the applicant filed an application for an order to quash the decision of the Tribunal. On 16 September 2011 an Amended Application was filed and is relied upon by the applicant.
The Amended Application
The applicant pleads the following of review in the Amended Application:
Grounds of the application
1. The Tribunal misinterpreted the applicable law and or misapplied the applicable law to the facts.
Particulars:
(i) The Tribunal erroneously found that it had jurisdiction to affirm a decision that the Applicant’s visa be cancelled when no decision was made by the delegate of the First Respondent to cancel the Applicant’s visa
(a) The decision record of the delegate of the First Respondent shows that the decision made was not to cancel a Class TU visa held by a person called Mr Ahmed, not a visa held by the Applicant.
(ii)The Tribunal misinterpreted the law and or misapplied the law in relation to whether the purported non-compliance of Condition 8202 by the Applicant ‘was not due to exceptional circumstances beyond the visa holder’s control’, as required by subregulation 2.43(2)(b)(ii)(B) of the Migration Regulations 1994 (‘the regulations) by:
(a) Erroneously comparing the impact on the Applicant of the death of his grandmother with the impact on other overseas students of the illness/and or death of a close relative, instead of comparing the Applicant’s circumstances with those of a student who had not suffered the loss of a close relative.
(b) Erroneously proceeding on the basis that because…
(…the illness/or death of a close relative in the visa holder’s home country) have been experienced by many overseas students studying in Australia,
the death of the Applicant’s grandmother was not an exceptional circumstance, when there is no such restriction when determining whether exceptional circumstances existed.
(c) Reaching a state of satisfaction that the Applicant’s non-compliance with Condition 8202 was not due to exceptional circumstances beyond his control, when it was unable to make, in its opinion, an informed judgment as to the actual effect on the Applicant of the death of the Applicant’s grandmother.
(d) Reversing the onus contained in r2.43(2)(b)(ii) by requiring the Applicant that he satisfy the Tribunal that the non-compliance was not due to exceptional circumstance beyond his control.
2. The Tribunal failed to consider the Applicant’s claims as made to it
Particulars:
(i)The Tribunal failed to consider the Applicant’s claim as put to it, being that his grandmother had died suddenly.
(a) The Tribunal erroneously proceeded on the basis that the Applicant’s claim was that his grandmother has been suffering from illness which led to her death while he was in Australia.
3. The decision was made in the absence of probative evidence.
Particulars:
(i)There was no probative evidence before the Tribunal that
(…the illness/or death of a close relative in the visa holder’s home country) have been experienced by many overseas students studying in Australia.
to ground its finding that the Applicant’s non-compliance was not due to exceptional circumstances beyond his control.
4. There is an apprehension of bias
Particulars
(i)There is an apprehension of bias in relation to the making of the decision, such that the fair–minded and informed observer would reasonably apprehend that the Tribunal in the present case might not have brought an impartial mind to bear on the decision.
(a)There is an apprehension of bias because of the Tribunal’s views concerning ‘exceptional circumstances’ and the death of the a close relative of an overseas student in Australia, as is shown, for example, by the following comments made by the Tribunal at the hearing:
Q48
A….
Q49 Is that I need to look at whether your experience can, can be considered to be exceptional. I mean certainly it’s beyond your control whether your grandmother dies, I accept that, but---
A….
Q50 So I’ve done a lot of similar cases to yours, I’ve now been a Member here for some years and I’ve done a lot of student visa cancellations and I have to say that the death of a, of a, of a close relative to whom the student is attached to is not unusual. I mean, I see, I see, I handle a lot of cases where the applicant has been, has had a close relative die and some have been able to cope with it, some haven’t. But it would seem to me if you’re coming overseas for, to do a course for a number of years then sadly it’s not unusual for a grandparent for example to pass away during that period. Do on that sense it’s not really, it seems to me anyway not really an exceptional circumstance. I mean it’s, that’s not to say it’s not a difficult circumstance as it clearly is for a whole lot of students but it’s really, I mean we, sadly grandparents, great-grandparents get old and they do die but we still have to continue, we still have to get on with our lives and, and try and cope as best we can. So the thing that, the question mark in my mind is whether the death of your grandmother is, is, is, is really an exceptional circumstance---
A Yes
Q50 --- or simply something that’s very sad and that will have an effect but, but which you must continue to cope with. Now, I understand that you are alone in Australia and a long way from home and that as well can be very difficult, but that’s in the nature of, of undertaking, you know, overseas study and again it’s something obviously that you need to cope with if you’re going to successfully complete, you know, your course. So I don’t know whether you have any comments on that, on those observations?
(b)There is an apprehension of bias because the Tribunal required documentary evidence to make an informed judgement as to the actual effect that the death of the Applicant’s grandmother had on the Applicant.
5. The Tribunal’s decision was unreasonable, irrational or illogical
Particulars:
(i) The Tribunal’s decision was unreasonable, irrational or illogical because, despite being unable to make, in its opinion, an informed judgment as to the actual effect on the Applicant of the death of the Applicant’s grandmother, the Tribunal nonetheless formed a positive state of satisfaction that the Applicant’s non-compliance with Condition 8202 was not due to exceptional circumstances beyond his control.
Ground 1
Ground (1)(i) alleges the Tribunal had no jurisdiction as there was no decision of the delegate. The basis of the allegation is typographical error in the delegate’s decision whereby the name of Ahmed, rather than Singh is used by the delegate on several occasions at the end of his decision. Ground (1)(ii) alleges that the MRT misapplied the law as to what constitutes “exceptional circumstances” for the purpose of subregulation 2.43(2)(b)(ii)(B).
The Applicant’s Submissions
Mr Dobbie, in his written submissions, argues that the Tribunal erroneously found that it had jurisdiction to affirm a decision that the applicant’s visa be cancelled when no decision was made by the delegate of the first respondent to cancel the applicant’s visa.
Mr Dobbie contends that the decision record of the delegate of the first respondent shows that the decision made was to cancel the Class TU visa held by a person called Mr Ahmed, not the V isa held by the applicant. In the decision of the delegate, the delegate referred to the applicant as “Mr Ahmed” on a number of occasions (CB 53-54). At CB 38 it states:
Having regard to all of the matters and information discussed above, I am satisfied that Mr Ahmed has not complied with condition 8202 and that the non-compliance was not due to exceptional circumstances beyond Mr Ahmed’s control. Therefore, Mr Ahmed’s student visa must be cancelled, in accordance with s116(1) and (3) of the Act and reg. 2.43(2)(b)(ii). As a delegate of the Minister for Immigration and Citizenship I am legally obliged to cancel Mr Ahmed’s subclass TU-572 Vocational Education and Training Sector visa.
Mr Dobbie argues that the s.116 power to cancel the applicant’s Visa was not exercised in relation to the applicant’s Visa. He claims that “this is not a mere slip by the delegate that can be overlooked as being of no substance” by referring to Mr Ahmed on several occasions, exercising the s.116 power in relation to a visa held by Mr Ahmed, not Mr Singh. Mr Dobbie argues that, as a consequence, the applicant’s Visa has never been cancelled. In oral submissions Mr Dobbie identifies reg. 2.43 of the Migration Regulations 1994 (Cth), which states:
Grounds for cancellation of visa (Act, s 116)
…
2) For subsection 116 (3) of the Act, the 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 holder has not complied with condition 8202; and
(B) the non-compliance was not due to exceptional circumstances beyond the visa holder's control.
These are prescribed circumstances in which the Minister must be satisfied that there has been non-compliance with Condition 8202 and the non-compliance was not due to “exceptional circumstances” beyond the applicant’s control. Mr Dobbie argues that the delegate, in determining whether or not the applicant’s Visa should have been cancelled, did not consider the applicant or the “exceptional circumstances”, and as a consequence did not make a decision to cancel the Visa.
Mr Dobbie argues that the Tribunal does not have jurisdiction to review the decision, where the power to cancel the Visa has never been exercised, in relation to the visa holder. Mr Dobbie claims that the Tribunal has jurisdiction to review the delegate’s decision and affirm the cancellation decision in relation to a visa holder, but the Tribunal has no jurisdiction under s.338 to affirm a decision of a power that was never exercised. As such, it is claimed that the Tribunal had no power to affirm the “decision”, unlike the situation where the Tribunal had the power to affirm a cancellation decision made by the delegate that was infected with jurisdictional error; Minister for Immigration and Multicultural and Indigenous Affairsv Ahmed [2005] FCAFC 58; (2005) 143 FCR 314 at 323-324.
Mr Dobbie argues that Ground 1(ii) pleads that the Tribunal misinterpreted the law and/or misapplied the law in relation to whether the purported non-compliance of Condition 8202 by the applicant “was not due to exceptional circumstances beyond the visa holder’s control”, as required by subregulation 2.43(2)(b)(ii)(B) (see above at [19]). There is no definition of exceptional circumstances in the Migration Act or in the Regulations. His Honour Lucev FM considered the term “exceptional circumstances” in Li v Minister for Immigration and Citizenship [2010] FMCA 583. His Honour was required to determine whether certain circumstances were exceptional circumstances for a welder seeking to obtain a subclass 857 visa. His Honour at [13] states:
… It is only exceptional if it is beyond what is ordinary for persons in a comparable position. In this, the Tribunal relied on United Mexican States v Cabal and Hatcher v Cohn. In considering the term “exceptional circumstance” the Tribunal had particular regard to the judgment in Hatcher where the Federal Court said:
‘Exceptional’ circumstances, in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances. Speaking in the context of extradition, Gleeson CJ, McHugh and Gummow JJ [in United Mexican States…] have held that ‘special circumstances’ need to be ‘extraordinary and not factors applicable to all defendants facing extradition’.
The Tribunal found that Mr Li’s circumstances, whilst perhaps deserving of intervention on compassionate grounds, were not exceptional when viewed against the circumstances of other persons in a comparable situation, that is, other subclass 857 visa applicants. The Tribunal found that it was unexceptional, and in fact routine, that subclass 857 visa applicants were skilled, able to follow occupational health and safety drills, passed on skills to other workers, were in Australia for relatively lengthy periods of time, tried to improve their English and felt settled in Australia.
(footnotes omitted)
Mr Dobbie argues that the applicant claimed that his failure to maintain the required course attendance was because of the sudden death of his grandmother. In determining whether the non-compliance of Condition 8202 by the applicant “was not due to exceptional circumstance beyond the visa holder’s control” the Tribunal found that the applicant’s circumstances were not exceptional because it considered:
…that circumstances very similar to those cited by the applicant (namely, the illness and/or death of a close relative in the visa holder’s home country) have been experienced by many overseas students studying in Australia and in that sense the applicant’s circumstance are not exceptional…
(CB 92 at [31])
In oral submissions Mr Dobbie claims that the applicant set out in a letter to the Department the reasons for his poor attendance, highlighting the emotional and psychological effects on the applicant, after the passing of his grandmother in India. In a written response to the Department’s letter, the applicant stated the following:
Myself Harjinder Singh, Student Id 1148, Passport number [passport number], date of birth 10/10/1981 and COE code [code] is an international student of Apex Institute of Education. I got a letter from your department to explain the reason for not attending the college regularly on 10th August.
The reason for this is that my Grandmother, Simar Jeet Kaur, expired on 08/06/2010 and I was quite attached to her, so the sudden death of my grandmother left me in deep shock. As I am alone here with no member of family nearby it deeply impacted my heart. In fact you can say that I lost my senses completely and it took about one and a half month from coming out of this shock. So due to this incident I was not able to attend my college and the day I reached my college they informed me that I have been reported to the department of Immigration…
(CB 27)
He said that he did not seek professional counselling, from his college, a doctor or psychologist to help him deal with his emotional problems. The applicant claims that there is a stigma in his Sikh culture attached to seeking professional help for emotional and psychological problems.
Mr Dobbie argues that there was never a claim by the applicant that his grandmother was ill and subsequently died. Mr Dobbie claims that this evidence is important because the Tribunal placed particular weight to this evidence, at CB 92 it states:
The applicant has attributed his unsatisfactory attendance essentially to the emotional effects on him of the illness and subsequent death of his grandmother in India…
Mr Dobbie argues that the applicant’s claim was not that the grandmother had in fact been ill and subsequently died; the argument is that she died suddenly. The applicant’s claim was:
She died suddenly, I went into deep shock.
First Respondent’s Submissions
Mr Godwin submits that the delegate’s decision clearly pertains to the applicant, Harjinder Singh, as it is his particulars which were given in the “Record of Decision of Whether to Cancel Under Section 116 of the Migration Act 1958” Report (CB 51) and the biographical details in the Visa history recorded by the delegate are clearly those of the applicant. The applicant’s passport (CB 20) sets out his biographical details and these are the same as those appearing at CB 51 and there can be no doubt that the record of the decision of whether to cancel under s.116 of the Migration Act relates to the applicant. This is further confirmed in the accompanying letter (CB 47-50) to the decision record. In the second paragraph of that letter it states:
I have decided there is a ground for cancellation of your visa
At CB 48 in the second paragraph it states:
I have therefore decided to cancel the visa. Your visa was cancelled on 17 January 2011…
Mr Godwin argues that there is no doubt that the delegate, Andrew Knott, who wrote the letter, took the mental step of making the decision to cancel the applicant’s Visa. The fact that the notice contains the wrong name does not detract from the fact that the delegate had clearly made a decision in relation to this application. In SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at [22]-[36] there contains a review of the preceding cases on the issue as to validity of a delegate’s decision and jurisdiction of the Tribunal. At [36] the Court summarises the two different situations. The first is where there is a valid application before a delegate to consider, and, in the course of consideration the delegate makes a jurisdictional error. The delegate’s exercise of power was, therefore, defective. This does not deprive the Tribunal of jurisdiction to review that defective decision and that is what the cases of Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495, Zubar v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344, Ahmed (supra) and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1 say. On the other hand, if the delegate never had a valid application before him and, therefore, had no power to make any decision, the Tribunal similarly, had no power to review the delegate’s purported attempt to make a decision and that is the case of Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486.
Mr Godwin argues that this matter clearly comes within Yilmaz (supra), Zubar (supra), Ahmed (supra) and Uddin (supra) group of cases because there has been a purported exercise of power, the delegate did have jurisdiction to make a decision in relation to this application and has purported to make that decision. If there is some jurisdictional defect arising from the name Ahmed then that does not deprive the Tribunal of jurisdiction to review the delegate’s decision. Mr Godwin submits the conduct of the applicant in accepting the decision of the delegate and seeking review in the Tribunal and not raising before the Tribunal, the issue as to whether or not the delegate could validly have made a decision, point to an acquiescence by the applicant, and would form the basis for the Court not exercising the discretion that it holds. This is addressed in SZGME:
96. If there was no valid application made by SZGME, a serious question would arise as to whether relief should be withheld for discretionary reasons. An extension of time to file a notice of appeal was granted by a Judge of the Court. So, the discretion would be that attending the grant of relief under the Judiciary Act 1903 (Cth), s 39B.
97. The respondent presses the argument that was pressed before the Federal Magistrate; that relief should be refused on the ground that the position now taken is entirely inconsistent with the approach adopted by SZGME before and in the Tribunal.
98. The Minister took no particular point about the eight year delay of itself. SZGME had been involved in a class action. Nevertheless, the conduct of the mother was entirely inconsistent with the relief sought. It was she who sought a protection visa and she who failed to file the correct forms. It was she who nevertheless, supplied sufficient information to the Tribunal to make out a case based on her own claims or on her membership of her family unit. She then requested the Tribunal to exercise its power to examine her claims on merits and provided evidence in support of that, including in oral evidence at the hearing. She engaged the executive machinery in considering her affairs and making a decision about her. The mother now says for reasons that are her own, or her migration agent’s, fault (the failure to fill in Part C or Part D of Form 866 or send the Part C to the Department as well as the Tribunal) that all this was for nothing and she wishes to have her application considered on its merits, again (although, on this hypothesis, for the first time strictly according to law.)
In respect to Ground 1(ii) Mr Godwin contends that the Tribunal found that the circumstances of the death of a near relative are not exceptional because they are suffered by many students. Accordingly, they are “regularly encountered” and not exceptional. Maan v Minister for Immigration and Citizenship and Anor (2009) 179 FCR 581 sets out the background in [8]:
The appellant travelled to India on 5 April 2007 after being informed that his mother and grandfather in India had been involved in a car accident, as a result of which they were both hospitalised. By 9 April 2007, the appellant’s grandfather died. The appellant returned to Australia on 18 April 2007.
Then at [20]:
The Tribunal found that the appellant was made aware of internal and external review processes relevant to the VIT certification but chose not to avail himself of those processes, and accordingly this did not constitute exceptional circumstances beyond the appellant’s control. Further, while the Tribunal accepted the appellant’s explanation of the events in March and April 2007 relevant to the accident involving his mother and grandfather, given that VIT’s unsatisfactory attendance certification during the period July 2007-September 2007 the Tribunal did not accept that the accident and the appellant’s need to return to India in April 2007 were "exceptional circumstances" for the purposes of the later period. Although the Tribunal accepted as plausible that the appellant might suffer depression and stress in the circumstances, he had sought no professional assistance at any stage. Accordingly the Tribunal was not satisfied that the appellant was depressed or stressed as claimed, and was therefore not satisfied that the claimed depression and stress were exceptional circumstances in the appellant’s case.
At [52] the Full Court found:
In this case the Tribunal considered in detail the meaning of "exceptional circumstances" in the context of these proceedings, and whether the appellant’s non-compliance with the conditions of his visa was due to exceptional circumstances beyond his control. Indeed, the Tribunal accepted the appellant’s evidence as to the events which had occurred in respect of his mother and grandfather, and gave consideration to his claims concerning his teacher at VIT and the stress of being away from home. On the facts the Tribunal found it plausible that the appellant should have experienced stress and depression as a result of the events involving his mother and grandfather. However the Tribunal was not satisfied that the appellant remained stressed or depressed several months after those events, particularly in light of the appellant’s failure to seek professional assistance. It is perhaps surprising that the Tribunal would find that a male student, aged 18 years old, and alone for the first time in a foreign country, would naturally seek medical help for depression-related symptoms. However the 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.
Mr Godwin submits that Maan v Minister for Immigration (supra) held that it was a matter of fact for the Tribunal to assess the evidence and because the applicant had not sought professional help, he was not affected in the manner he claimed. When looking at the question posed by the regulation, there are two ways that the Tribunal might have reached the positive state of satisfaction:
a)The circumstances put forward by the applicant were not exceptional, for example, that the grandmother’s death was not an exceptional matter; or
b)The failure to comply with the conditions of the Visa was not caused by that circumstance.
In this case if the applicant was not as emotionally affected as he was, then, even if the grandmother’s death was an exceptional circumstance the Tribunal could still be positively satisfied that his non-compliance was not due to that exceptional circumstance.
In the decision in Maan (supra) at [51] the Full Court approves the statement by Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2001] 1 QB at 208 in respect to the expression “exceptional circumstances” which is not defined in the UK Migration Regulations, 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 a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
Mr Godwin submits that having regard to that statement the Tribunal which specifically adverted to that particular passage, it was clearly addressing that question when it looked at whether or not the death of a near relative was out of the ordinary or uncommon for the student population. It is not confined to foreign students who have a near relative die, rather, it is the entire student population and it is not uncommon for a student in the entire student population to have a near relative die, and that seems to fall within the way “exceptional circumstances” are construed in Maan.
Mr Godwin submits that in relation to the issue of onus in the Tribunals reasons at [14] (CB 89) where it states:
This requires a positive state of mind on the part of the decision maker that there are no relevant exceptional circumstances: Khant v MIAC [2009] FCA 1247 at [70].
When the Tribunal makes its decision at [31] (CB 31) it makes that statement of positive satisfaction. In Maan the Full Court found no error in the Tribunal relying upon the failure of the applicant to seek professional help. In that case as being the basis for it to be positively satisfied that the circumstances were not the reason for the non-compliance.
Consideration – Ground 1
Section 476(2) of the Migration Act establishes that the Federal Magistrates Court has no jurisdiction in relation to a primary decision. In s.476(4) primary decision means a privative clause decision or purported privative clause decision that is reviewable under Part 5 [Migration Review Tribunal] or Part 7 [Refugee Review Tribunal]. Consequently, the Migration Review Tribunal does not have jurisdiction to review a decision where the power to deal with a visa has never been exercised in relation to the visa holder. Whereas the Tribunal has jurisdiction to review a delegate’s decision and affirm vary, remit for reconsideration or set the decision aside and substitute a new decision in respect of a decision in relation to a visa holder. Importantly the Tribunal has no jurisdiction under s.338 to affirm a decision of a power that was never exercised.
Ground 1(i)
The first issue in Ground 1(i) is whether there was a decision made by the Minister’s delegate in respect of the applicant Harjinder Singh.
The argument advanced on behalf of Harjinder Singh was that the decision record of the delegate of the Minister shows that the decision made was to cancel a Class TU visa held by a person called Mr Ahmed, not the visa held by Harjinder Singh because in the decision the delegate referred to a Mr Ahmed on eight occasions (CB 53-56). There is no dispute that a reference to a Mr Ahmed appears on eight occasions which commences on the third page, however, on the cover page (CB 35) Mr Singh is identified by his Family Name and Given Name, together with his other personal and visa details that are consistent with all other identifying detail in the balance of the Court Book. Subsequent to Part A – Personal and Visa Details in Parts B, C and part of D, Mr Singh is identified on seventeen consecutive occasions. In the fourth paragraph under the section headed “Assessment” and without explanation the name Mr Ahmed first appears.
The suggestion that the delegate’s decision that appears in the CB at pages 35-38 was not a decision made about the review applicant Mr Harjinder Singh is not supported by the evidence that appears on the face of the decision itself.
The structure of the decision is, that after the initial identification of Harjinder Singh in the section “Personal particulars of visa holder”, the delegate then changes to Mr Singh and uses this identification on seventeen consecutive occasions until Mr Ahmed’s name appears. The consequences of this is that in the first half of the decision (pages 1 and 2) (CB 35-36) Mr Singh’s name appears and in the second half (pages 3 and 4) (CB 37-38) Mr Ahmed’s name appears.
I note that the Apex Institute of Education Pty Ltd being the college that Mr Singh was attending was referred to elsewhere in the Court Book prior to the delegate’s decision record (CB 1, 2-7, 8, 18, 22, 23, 25 and 27). The college is correctly identified in the decision on both page 1 (CB 35) and page 4 (CB 38). Similarly in respect to the visa class being “TU-572 Vocational Education and Training Sector Visa”, it is correctly identified in both halves of the decision at page 1 (CB 35) and page 4 (CB 38).
An examination of the material contained in the Court Book (CB 1-27) and the decision record of the Minister’s delegate (CB 35-39) makes it clear that the decision is about the applicant in this case. The incorrect name that appears in the second half of the Decision Record is possibly from a word-processing or drafting error which should have been avoided and corrected on final editing.
The question of a typographical error arose in the matter before his Honour McInnis FM in Gido-Christian v Minister for Immigration & Anor [2007] FMCA 825 where the applicant sought judicial review of a MRT decision which affirmed a delegate’s decision to cancel a Partners (Migrant)(Class BC) visa held by the applicant. The fourth ground of the Further Amended Application stated:
The Tribunal asked itself the question: ‘Did the review applicant provide incorrect answer to the application for migration to Australia on 27 October 2002?’ The application for migration to Australia was lodged on January 1998. Hence the Tribunal asked itself the wrong question. In the circumstances, there was jurisdictional error.
In his Honour’s reasoning he found at [134] – [136]:
134. In my view the incorrect references to the date of application was simply a typographical error. The Tribunal’s decision otherwise in my view has been reasoned in a manner free from error and a typographical error of this kind is of no consequence, I note on passing, that in it’s decision the Tribunal has referred to the correct date in at least two other occasions. It referred to the correct date in paragraph 21 of its decision where it states relevantly:
“The review applicant applied for a subclass 309(spouse) visa on 16 January 1988…”
135. It also referred to the correct date in its chronology…
136. It is clear to me that there is a mere typographical error and cannot provide any or any proper basis upon which the court is able to conclude jurisdictional error for the reasons given.
His Honour, McInnis FM, noted that Mr M Wigney of counsel appearing for the Minister referred to the decision in his submissions in S14/2002 v Refugee Review Tribunal [2004] FCAFC 171 at [27]-[34] where the Court considered the construction of reasons for decision whether the accidental omission of the word ‘not’ in the Tribunal’s reasons were sufficiently clear for the relevant sentence to be construed as if that the word appeared in it. His Honour Carr J (with Tamberlin and Lander JJ agreeing) considered the omission as follows:
27. In his second ground of appeal, the appellant challenged the course taken by his Honour in reading the word "not" into paragraph numbered [32] above. Part of that challenge was to some of his Honour’s reasoning, based on the decision in Long v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 218 at [32] that the content of the Tribunal’s reasons was a question of fact, thereby leaving it open to him to infer as a matter of fact that the Tribunal had omitted the word "not".
28. I would not take any issue with his Honour’s description of what was held in Long on that point. But the question in this matter is one of construction of the Tribunal’s reasons. I would adopt the same approach as that taken by his Honour i.e. to have regard to the reasons as a whole. It is also important, in my opinion, to have regard to the context of the particular part of the reasons in which this sentence occurred.
29. I acknowledge that to insert the word "not" into a sentence is a major, indeed radical, step as a matter of construction.
30. However, in paragraph numbered 32 the Tribunal first dismisses the incident at the boarding house as one which did not indicate that the appellant was at risk [I interpolate here to express the view that the reference to "a risk" was another typographical error which should have read, as his Honour found, "at risk"]. It would be, to say the least, odd to follow such a rejection with the last sentence, as typed, in paragraph numbered 32.
31. Next, the wording of that sentence is strange with its reference to a single incident and emphasis by the use of the words "does serve".
32. More importantly, the sentence, as typed, is totally inconsistent with the Tribunal’s conclusions expressed in paragraphs 36, 37 and 38 of its reasoning.
33. Mr McInerney took us to the familiar line of authorities including Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 concerning the manner in which the Court should approach the Tribunal’s reasons.
34. However, in my view, it is quite clear from the matters to which I have referred above that the relevant sentence suffered from a typographical error by omitting the word "not". The situation is analogous, in my opinion, to that which occurred in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297.
Following the reasoning in S14/2002 v Refugee Review Tribunal (supra) if the decision in the matter before this Court is considered as one of construction, with the decision taken as a whole, I am satisfied that delegate’s decision is about Mr Harjinder Singh and the subsequent reference to Mr Ahmed in the latter part of the decision is a typographical error. The claim that the decision relates to Mr Ahmed is not supported by the structure of the decision and the context of the background material contained in the Court Book.
In Surinder Singh v Minister for Immigration and Anor [2010] FMCA 1000 his Honour Cameron FM addressed a ground of review that the Tribunal had fallen into jurisdictional error because the purported decision of the Minister’s delegate was not a valid decision in accordance with the requirements of s.65 of the Migration Act, in that the relevant decision record was not signed, therefore, there was no MRT-reviewable decision as there was “no decision at all”. His Honour addressed this issue in the following manner:
Delegate’s decision not valid because decision record not signed
15. It was conceded by the applicant that the letter from the Minister’s department dated 7 April 2010 advising him that his visa application had been refused had been signed by the Minister’s delegate. However, it was submitted that as the attached decision record also dated 7 April 2010 had not been signed, what purported to be a notification of the delegate’s decision was in fact ineffective. It was contended that for a decision to be valid for the purposes of s.65 of the Act, it was necessary that the decision record be signed and that, in the absence of the signature, there was no prima facie evidence to suggest that the purported decision record had been duly adopted by the person purporting to be the decision-maker. It was submitted that an unsigned document of that nature would, at most, be considered a draft. The applicant put that a signature was an integral component of the decision and that without it there was no decision. Accordingly, it was submitted, there was no decision made under s.65 of the Act and thus no MRT-reviewable decision for the purpose of s.338(2) of the Act.
16. Whether or not a signature on the decision record is required for there to be a valid decision, the existence of an MRT-reviewable decision does not turn on the validity of the primary decision: Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; SZNZK v Minister for Immigration & Citizenship [2010] FCA 651. In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338, Smithers J at 370 repeated and adopted the observations of Brennan J who, as President of the Administrative Appeals Tribunal, said:
A decision is a fact, to be distinguished from its legal consequences. A decision made beyond power but in its intended exercise does not carry the same legal consequences as it would have carried if there had been power to make it. Axiomatically, the legal consequences which it does carry depend upon the effect attributed by the law to the fact of the decision ... Where a decision is made beyond power, the legal effect which the decision maker seeks to achieve is denied; but that says nothing as to whether the decision may be reviewed, quashed, or otherwise affected by order of a court or of an appeal tribunal. The denial of the legal effect desired does not itself prevent the decision from having the effect of enlivening a jurisdiction conferred by law upon a court or appeal tribunal to review, quash or otherwise affect the decision. The right to invoke the jurisdiction depends upon the terms of the law creating that right and conferring jurisdiction to grant relief against the decision in question.
17. As was said in SZGME v Minister for Immigration & Citizenship [2008] FCAFC 91; (2008) 168 FCR 487:
It is the decision that has in fact been made that is reviewed. After Yilmaz [2000] FCA 906; 100 FCR 495; Zubair [2004] FCAFC 248; 139 FCR 344; Ahmed [2005] FCAFC 58; 143 FCR 314 and Uddin [2005] FCAFC 218; 149 FCR 1 reiterated this proposition: see, in particular, Ahmed [2005] FCAFC 58; 143 FCR 314 at [36]. The fact that some defect (even one leading to jurisdictional error) can be ascertained in the decision subject to review, does not prevent a review body exercising the powers and discretions of the person who made the decision: see, here, the Migration Act s 415. (at 495 [25] per Black CJ and Allsop J)
18. Consequently, the delegate’s decision was an MRT-reviewable decision even if it was void.
His Honour Cameron FM then went on to consider the argument that the applicant was not properly notified of the delegate’s decision as the decision record that the applicant received was not signed:
Applicant not properly notified of delegate’s decision as decision record not signed
19. The applicant submitted that an unsigned decision record could not amount to proper notification pursuant to s.66 because the accuracy of that document and its contents could not be ascertained in the absence of the purported decision-maker’s signature and it might also lead to doubts concerning the identity of the author. He argued in this regard that although s.66(2) did not require the decision record to be signed, it was not an exhaustive list of the matters necessary to comprise an effective notification of a visa refusal. He appeared to suggest that the common law required the decision record be signed before it could amount to a proper notification. The applicant further submitted that the departmental letter of 7 April 2010 and the enclosed decision record were two separate documents and that the covering letter did not adopt the decision record so as to overcome the fact that the decision record had not been signed.
20. The applicant said that notification to him had been defective and that where there is defective notification an applicant is not taken to have received the purported decision in accordance with the requirements of s.66(2). He submitted that this led to the result that time did not run for the purposes of an application to the Tribunal and that the Tribunal erred in concluding that his review application had been lodged out of time.
21. Contrary to the applicant’s submissions, it is clear from its terms that the departmental letter did expressly adopt what had been said in the decision record. Amongst other things, the letter said:
After assessment against the relevant migration legislation, I have decided to refuse the grant of a visa to the above mentioned applicant. The reasons for the decision are set out in the attached decision record.
As a result, it must be concluded that the genuineness of the decision record was sufficiently verified for the delegate’s decision to have been properly notified to the applicant.
22. The letter’s express adoption of the decision record is significant given that s.66 does not require the delegate’s decision to be notified or given to an applicant in one document; it may be given in two documents, as in this case: Benissa v Minister for Immigration & Citizenship [2010] FMCA 657 at [58]. As Allsop J said in Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469:
The two documents (the letter and the decision record) should not, it seems to me, be dealt with separately or differentially by s 494C. They, together, amounted to the notification in a document or documents for the purposes of s.66. (at 481 [48])
23. Consequently, even were there an implicit requirement that the decision record be signed, that is in effect what occurred in this case. The two documents should be treated as the one notification and the signature on the letter served to satisfy any formal requirement that the notification be signed.
His Honour Cameron FM then focused on the principal issue in the application before him as follows:
24. However, these considerations divert attention from the principal question presented by this aspect of the first allegation. The proceedings before the Court are concerned to determine whether the Tribunal’s decision is affected by jurisdictional error which, in this case, requires consideration of whether the alleged inadequacy in the departmental notification affected the Tribunal’s decision that it lacked jurisdiction such that it should be set aside. It was said in SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79; (2010) 185 FCR 129 that:
... there cannot be adequate assessment of whether the requirements of s.66 of the Act have been breached, or of whether the jurisdiction of the RRT was not engaged, without some examination of the consequences of the alleged non-compliance. The judgment of the High Court in SZIZO has expressly drawn attention to the need to evaluate the practical consequences of failure to comply with procedural obligations under the Act. It is no longer possible, if it ever was, to speak of “imperative obligations” under the Act without specific attention to the purposes they are intended to serve ... The consequences of an alleged lack of information need to be assessed in a particular case. (at 146 [67] per Buchanan and Nicholas JJ)
25. Even assuming that s.66(2) or the common law required the decision record to be signed, the Court was not taken to any evidence which would suggest that the absence of a signature had any practical consequences for the applicant, such as causing him to lodge his review application with the Tribunal out of time. For instance, although his solicitors wrote to the Tribunal on 6 July 2010 submitting that the delegate’s decision was not valid because the decision record had not been signed, nothing was advanced to suggest that this caused the applicant any practical disadvantage.
Similar to the details set out above in the extract passages from Surinder Singh (supra) the matter before this Court consists of more than one document. In the letter headed “Notification of Cancellation Under Section 116 of the Migration Act 1958” dated 17 January 2011 (CB 47-50) indicated that it had two attachments;
a)Decision Record;
b)Migration Review Tribunal brochure (M10)
The letter is clearly addressed to Mr Harjinder Singh together with his email address and commences “Dear Mr Singh” (CB 47). On the second page of that letter the following appears at CB 48:
Because Apex Institute of Education Pty Ltd (trading as Apex Institute of Education) on 10 August 2010 certified you as not achieving satisfactory course attendance in relation to Diploma of Management.
I have therefore decided to cancel the visa. Your visa was cancelled on 17 January 2011. The reasons for not cancelling your visa were not considered sufficient to outweigh the existence of the ground for cancellation.
A copy of the decision record is attached…
In the matter before the Court, the issue of another name appearing in part of the Decision Record was not raised by either Mr Harjinder Singh or his migration agent Mr Gaganjot Singh Bhatia at the hearing before the Tribunal. There was no claim or suggestion that the decision of the Minister’s delegate, Mr Andrew Knott, did not relate to Mr Harjinder Singh but rather Mr Ahmed. Nor was there any correspondence forwarded to the Tribunal before or after the hearing on 28 June 2011 raising the issue of another unrelated name appearing in the Decision Record. No evidence was tendered or submissions made that would suggest that the presence of the other name had any practical effect on Mr Harjinder Singh that denied him the opportunity to seek review by the Tribunal. In the Decision Record of the Tribunal by Tribunal Member T. Delofski dated 4 July 2011 the following appears at CB 87:
5. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(3) of the Act. The Tribunal finds that the applicant has made a valid application for review under s. 347 of the Act.
Once the applicant sought a review of that decision (CB 39-45) the Tribunal was obliged to review it. The Tribunal handed down its decision on 5 July 2011 (CB 83-94). The Tribunal’s decision was to affirm the delegate’s decision to cancel Mr Harjinder Singh’s student visa (CB 93). In relation to the cancellation decision this Court does not have jurisdiction pursuant to s.476, as that decision is a primary decision, which is not reviewable under Part 5 of the Migration Act.
In the decision in Lin v Minister for Immigration & Anor (2008) 218 FLR 177 his Honour Nicholls FM considered the question of invalidity of a delegate’s decision and the aspect of that invalidity cured by a subsequent decision of the Tribunal. This was addressed as follows:
35. In Zubair, the relevant delegate’s decision was found to be “not a valid decision.” It was invalid because it did not follow the mandatory requirements of ss.119(1)(a) and 121(2) (see Zubair at [19]). The Full Court found, first, that the invalidity in the delegate’s decision in that case, which was based on a failure to give particulars in the requisite notice prior to cancellation, that such an invalidly did not deprive the Tribunal of jurisdiction to review the cancellation decision (see Zubair at [27] to [28]).
36. Further, as a result of the Tribunal having the power to review the delegate’s decision, the Tribunal was able to “cure” the defect in the delegate’s decision (see [32] and the reference to Twist). As I understand Zubair, as long as the Tribunal properly conducts the review which it is empowered, and obliged, to conduct, and if after having done so, after a “full merits review” (Zubair at [28]), and subject to the limitation upon its power to not make a decision that is not authorised by the Act or the Regulations (s.349(4) and see Zubair at [28]), the Tribunal affirms the delegate’s decision, any such review properly conducted would “cure” the delegate’s decision of any defect. As did Smith FM in Bao, I note what was said as to the effect of Zubair in Fang at [35]:
“However, as the respondent’s contentions state, all these matters were cured by the nature of the review before the MRT: see s 349 of the Act. The MRT has jurisdiction to review even where the decision of the delegate may be legally ineffective: see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248, at [28]-[32], and the cases therein cited. Further, to the extent there may have been a defect in the decision of the delegate, the full merits review in the MRT was able to cure that defect Zubair at [32], citing Twist v Randwick Municipal Council[1976] HCA 58; (1976) 136 CLR 106 at 116.
36 I agree with the respondent’s submission that in exercising its review, however, the MRT was not required to consider whether the delegate had erred. Rather it was required to determine whether the appellant had not complied with condition 8202. The question for the MRT was whether the appellant had achieved an academic result that is certified by the education provider to be at least satisfactory: (i) for a course that runs for less than a semester – for the course; or (ii) for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.”
37. In the case currently before the Court, the Tribunal was required, in exercising its review, not necessarily to consider whether the delegate had erred, but to consider the issue of whether the applicant had complied with condition 8202 (which attached to his then visa) and whether the ground for cancellation in s.116(1)(b) existed. The Tribunal found that the applicant had not so complied with the relevant condition and therefore the ground for the cancellation did exist (see SCB 130).
38. As Smith FM said in Bao at [37]:
“As I understand the effect of Zubair and the basis for its reasoning, it is that the procedural provisions of subdivision E, including s.119 and the specification in s.124 that "the Minister may cancel a visa at any time after notice about the cancellation has been given over s.119" impose procedural requirements on a delegate whose non-observance may give rise to invalidity of a delegate's decision, but are not substantive preconditions to the power to cancel under s.116 which would bind a merits review tribunal reviewing the exercise of a s.116 power.”
The decision in Bao v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 1044 was upheld on appeal.
In Zubair v Minister for Immigration & Multicultural and Indigenous Affairs (supra) the Court was asked to declare that the delegate’s decision was “of no effect”, so that the applicant’s visa in that case was “not cancelled”, however, the Court rejected that submission. The impugned decision was a decision that was capable of being reviewed by the Tribunal. At [27] it states:
In our view, the clear words of s 338 indicate that the decision of the delegate of the respondent to cancel the visa was an ‘MRT-reviewable decision’ and the Tribunal was not only entitled to, but obliged to, review it.
This is fully explained at [28]-[32]:
28. The expression ‘decision’ is not otherwise defined in the Act. There is no textual suggestion that the expression ‘MRT-reviewable decision’ should be restricted in some way so as to refer only to decisions which have been made by a delegate of the respondent after full compliance with the mandatory procedural prescriptions of ss 119 – 121 (in the case of the cancellation of a visa) or other procedural prescriptions applicable to other forms of MRT- reviewable decisions. There is no qualification upon the use of the word ‘decision’ requiring it to be a ‘decision under the Act’: cf Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2. In particular, there is nothing in Pt 5 of the Act which would suggest that the Tribunal does not have the power or obligation to review a decision properly brought before it (see s 347) where the delegate of the respondent may, or may arguably, have failed to comply with a procedural requirement imposed by the Act, or in some other way may, or may arguably, have committed an error of law either in determining the applicable law or in applying the law. There is no reason why the Act, which provides for a full merits review by the Tribunal of decisions which may be brought to it, should impose upon the Tribunal the task of culling out those decisions which may involve jurisdictional error on the part of the original decision-maker. That would impose an unnecessary additional complexity upon the merits review process. Moreover, it may expose the Tribunal’s decision as to the existence of a valid delegate’s decision (a jurisdictional fact on the appellant’s argument) to review by a Court even where (as here) the Tribunal has fully reviewed the decision on the merits. Administrative convenience strongly points to an alternative conclusion to that urged by senior counsel for the appellant. The review process applicable to the Tribunal is a full merits review. As with review under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the Tribunal is given powers under s 349 to exercise all the powers and discretions that are conferred by the Act on the person who made the decision. It may affirm the decision, vary it, or remit the matter for reconsideration with directions or recommendations, or may set aside the decision and substitute a new decision. The only limit upon its power is that it may not, by varying or setting aside a decision and substituting a new decision, make a decision that is not authorised by the Act or the regulations (s 349(4)). That is similar to the review powers of the Administrative Appeals Tribunal (AAT): see AAT Act, s 43. In that context it has been held that the review by the AAT is available even though the decision-maker at first instance may have made a decision which is legally ineffective: see e.g. Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [38] – [39].
29. That approach accords with a line of decisions of this Court beginning with Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307 (Lawlor). In that case the Court had to decide whether the AAT had jurisdiction to review the purported revocation of a licence where (the Court held) there was no statutory power to revoke the licence. Bowen CJ at 314 stated that ‘decision’ in s 25 of the AAT Act refers to ‘a decision in fact made, regardless of whether or not it is a legally effective decision’. Smithers J at 337 held that where a decision is made beyond power, even though the legal effect the decision maker sought to achieve is denied, the jurisdiction of a court or appeal tribunal to review the decision is not removed. The jurisdiction of the court or tribunal depends upon the law creating the right to review and conferring jurisdiction. His Honour further pointed out that a ‘decision’, as used in the relevant statute, relating to the right to apply for review, referred to a decision ‘made in fact’ and not the legal effect the decision may have had. Although Deane J was in dissent in the result, his Honour recognised at 342 – 343 that the AAT’s powers of review would include a decision resulting from a wrong assessment of the content of a power or a mistaken determination that conditions precedent have or have not been fulfilled.
30. Lawlor was applied by the Full Court in Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 (Alvaro). Von Doussa J (with whom Spender and French JJ agreed) held at 219 that the right of the AAT to review a decision of the Social Security Appeals Tribunal (SSAT) existed ‘whether or not the decision reviewed by the SSAT, or the decision of the SSAT itself, was legally effective’.
31. In Yilmaz v Minister for Immigrationand Multicultural Affairs (2000) 100 FCR 495; [2000] FCA 906 (Yilmaz) Gyles J (with whom Spender J agreed, Marshall J dissenting) followed the principles as established in Lawlor in holding that an invalid decision (in that case concerning rights of review by the Refugee Review Tribunal (RRT) under ss 411 and 412 of the Act) is a decision capable of being reviewed by the RRT. His Honour, after discussing the relevant authorities including Lawlor and Alvaro stated at 514, [88]:
In my opinion, these principles are to be applied in the present setting. Brian Lawlor was a landmark decision in the early days of the jurisdiction of the AAT which had been established to conduct review of certain administrative decisions on the merits as part of a comprehensive set of administrative law reforms. The decision has stood now for over 20 years without dissent and has been regularly applied. It must be taken to have been the law when the RRT provisions were framed.’
The reasoning of Gyles J in Yilmaz was followed by the Court (Moore, Tamberlin and Goldberg JJ) in Thayananthan v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 297; [2001] FCA 831.
32. It should therefore be concluded that the Tribunal did have power to review the delegate’s decision. The Tribunal was, in consequence, able to "cure" the defect in the delegate’s decision: see Twist v Randwick Municipal Council [1976] HCA 58;(1976) 136 CLR 106 at 116. Because of our conclusion it is unnecessary to enter upon the question whether a direct challenge could have been made to the delegate’s decision in judicial review proceedings in disregard of the procedure for Tribunal review: cf Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.
I have formed the view that, although the delegate’s decision in the latter part contains an unexplained name of a Mr Ahmed the decision is not specifically about him but, rather, Mr Harjinder Singh the review applicant. The inclusion of Mr Ahmed’s name in the decision on the evidence before the Court appears to be a typographical error in nature. The claim that there was “no decision at all” cannot be sustained and the delegate’s decision satisfied the requirements of a MRT – reviewable decision under s.338(3) of the Migration Act.
Ground 1(ii)(a) and (b)
In respect to Ground 1(ii)(a) and (b) claims that the Tribunal misapplied the law as to what constitutes “exceptional circumstances beyond the visa holder’s control” as required by sub-regulation 2.43(2)(b)(ii)(B) of the Migration Regulations 1994 (see [19] above). The Tribunal addresses what it is required to do in its decision at [14]-[22] (CB 89-90) and notes that the term “exceptional circumstances” in this context is not defined in the Migration Act or Regulations. The Tribunal observes that the term “exceptional circumstances” appears in s.137(L)(b) of the Migration Act. The Court notes that it is in this context in which most of the judicial consideration of the term has occurred. The claim of “exceptional circumstances” by the applicant arose from the sudden death of his grandmother, to whom he claims he was closely attached. As a result he went into deep shock and was depressed. This caused him to not attend his lectures at Apex Institute of Education leading to notification that he had breached Condition 8202.
The regularly quoted authority of a death of a near relative as not being exceptional because they are suffered by many students, so are regularly encountered and not exceptional, is the decision in Maan v Minister for Immigration and Citizenshipand Anor (supra) per Dowsett, Greenwood and Collier JJ at [51]-[52] where their Honours state:
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 a 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 The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]- [25])
52. In this case the Tribunal considered in detail the meaning of "exceptional circumstances" in the context of these proceedings, and whether the appellant’s non-compliance with the conditions of his visa was due to exceptional circumstances beyond his control. Indeed, the Tribunal accepted the appellant’s evidence as to the events which had occurred in respect of his mother and grandfather, and gave consideration to his claims concerning his teacher at VIT and the stress of being away from home. On the facts the Tribunal found it plausible that the appellant should have experienced stress and depression as a result of the events involving his mother and grandfather. However the Tribunal was not satisfied that the appellant remained stressed or depressed several months after those events, particularly in light of the appellant’s failure to seek professional assistance. It is perhaps surprising that the Tribunal would find that a male student, aged 18 years old, and alone for the first time in a foreign country, would naturally seek medical help for depression-related symptoms. However the 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. The Federal Magistrate also considered this aspect of the appellant’s case in detail, and no deficiency in the reasoning of the Federal Magistrate in relation to this issue has been identified by This Court.
The argument advanced by Mr Dobbie on behalf of Mr Harjinder Singh was that the question was not that the death of a close relative had been experienced by many overseas students, rather that the Tribunal had to consider whether Mr Harjinder Singh’s circumstances were unusual or out of the ordinary. The claim from the applicant is that the Tribunal did not consider this.
In the Decision Record, MRT Case Number 1100700 (CB 86-94) under the heading “Claims and Evidence” it is recorded that the applicant was notified in a written notice sated 27 August 2010 that a delegate of the Minister was considering cancelling his visa. In a written response to the Departmental Letter the applicant explained his absence from the Apex Institute of Education in the following terms:
…I got a letter from your department to explain the reason for not attending the college regularly on 10th August.
The reason for this is that my Grandmother, Simar jeet kaur, expired on 08/06/2010 and I was quite attached to her, so the sudden death of my grand mother left me in deep shock. As I am alone here with no member of family near by it deeply impacted my heart. In fact you can say that I lost my senses completely and it took about one and a half month from coming out of this shock. So due to this incident I was not able to attend my college and the day I reached my college they informed me that I have been reported to the department of Immigration…
(CB 18)
At the Tribunal hearing on 28 June 2011 the applicant affirmed that he had not complied with the attendance requirements and this failure was due to the passing of his grandmother in India. The Tribunal Member then records:
… He said he had not sought professional counselling - either from his college or from a doctor or psychologist – to help him deal with his emotional problems. He said that he was all alone in Australia and did not know what to do. The applicant’s representative said that in the applicant’s (Sikh) culture, there is a stigma attached to seeking professional help for emotional/ psychological problems: one is expected to deal with such issues one self.
(CB 91)
This is the extent of the evidence that is recorded by the Member in his decision. The applicant was represented by Mr Gaganjot Singh Bhatia and the hearing was approximately thirty minutes in duration. The Hearing Report records that no further documents were tendered during the hearing.
In the “Findings and Reasons” the Member considers the circumstances the applicant claims caused the breach:
31. The applicant has attributed his unsatisfactory attendance essentially to the emotional effects on him of the illness and subsequent death of his grandmother in India. The Tribunal considers that circumstances very similar to those cited by the applicant (namely, the illness and/or death of a close relative in the visa holder’s home country) have been experienced by many overseas students studying in Australia and in that sense the applicant’s circumstances are not exceptional. The Tribunal also notes the absence of any evidence from professional medical sources supporting the applicant’s claim that he was unable to attend his course classes. The representative has argued that in the applicant’s (Sikh) culture, there is a stigma attached to seeking professional help for emotional/ psychological problems. However, the fact remains that there is very little documentary evidence that would allow the Tribunal to make an informed judgment as to the actual effect of the grandmother’s death on the applicant’s capacity to attend his course classes. Based on the evidence provided, the Tribunal is satisfied that the applicant’s non-compliance with condition 8202 was not due to exceptional circumstances beyond the visa holder’s control…
(CB 92)
In the Tribunal Decision under the heading “Claims and Evidence” it states:
23. The Tribunal has before it the Department’s and the Tribunal’s case files relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources.
(CB 91)
The Tribunal had the undated letter written by the applicant (CB 18 and 27) (reproduced in part above at [23] and [57]) in response to the Department’s “Notice of Intention to Consider Cancellation under Section 116 of the Migration Act”. The applicant repeated the explanation for his absence during the Tribunal Hearing which is reproduced above at [26] of the Tribunal Record. The registered Migration Agent Mr Gaganjot Singh Bhatia, provided the Tribunal with an oral explanation as to why the applicant did not seek professional help, to deal with his emotional problems due to his Sikh culture. This explanation is not supported by any documental evidence. It would be reasonable to expect that a registered migration agent who may be a Sikh him or herself would be sufficiently familiar with proceedings before a Tribunal and the need for evidence to be presented to support oral submissions on this issue.
The Tribunal has no general duty to enquire, but that there may be rare and exceptional circumstances where the ready availability of information critical to the review can enliven a duty to enquire: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 and Luu v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 518. In the current case there was no expert psychological report, general practitioner’s case notes or medical certificate in existence that was available, because the applicant had not sought that assistance. Nor was there any reference to reports addressing the issue of the Sikh cultural approach to seeking professional help for emotional and/or psychological problems that was relied on by the applicant to explain his decision not to obtain help. The Tribunal Member makes this observation in his reasons:
…the fact remains that there is very little documentary evidence that would allow the Tribunal to make an informed judgment as to the actual effect of the grandmother’s death on the applicant’s capacity to attend his course classes.
(CB 92)
The review function was described by his Honour Allsop J (Spender J agreeing) in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244:
42. …The requirement to review the decision… requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration…It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act… make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant…
The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 per Merkel J.
I am satisfied that the Tribunal in the matter before this Court has dealt with the evidence before it. The applicant, who was assisted by a registered migration agent, did not attempt to tender evidence as to why he did not seek assistance with the result that there was no evidence explaining his absence. A competent agent should have been aware of this requirement and what was necessary to address this lack of evidence. Consequently, the Tribunal dealt with the very limited material available and found that there was insufficient evidence to find that the applicant’s circumstances were unusual or out of the ordinary. This ground of review cannot be sustained.
Ground 1(ii)(c)
This ground was not pressed at the hearing.
Ground 1 (ii)(d)
Regulation 2.43(2)(b)(ii) requires that the Minister must cancel a visa, if the Minister is satisfied that the visa holder has not complied with Condition 8202 and the non-compliance was not due to “exceptional circumstances” beyond his control. The first element of the regulation was addressed by the applicant himself and is recorded by the Member at [30] in the Decision Record.
The applicant has also informed the Tribunal at the hearing that he accepts that he did not comply with the attendance requirement of condition 8202…
(CB 92)
In respect to the second element in Maan v Minister for Immigration and Citizenship (supra) the Full Court found no error in the Tribunal relying on the failure of the applicant to seek professional help as being the basis for it being positively satisfied that the circumstances were not the reason for the non-compliance. The reasons in that decision are set out above at [55].
In the absence of a specific request by the Tribunal Member as to the precise nature of the documentary evidence required, it is extremely difficult to see how there is any documentary evidence that addresses the actual effect that the death of Mr Singh’s grandmother had on him. On a fair reading of the material available in the Court Book and the transcript of the hearing, I am satisfied that the request for evidence in order to make an informed judgment is limited to details of the Sikh cultural issues. If the request was wider then that the oral evidence already given would eliminate this avenue.
On the material available I am satisfied that this ground cannot be sustained and should be dismissed.
Ground 5
The claim in Ground 5 of the application is that the Tribunal’s decision was unreasonable, irrational or illogical because despite being unable to make, in its opinion, an informed judgment as to the actual effect on the applicant of the death of the applicant’s grandmother, the Tribunal nonetheless formed the view that the applicant’s non-compliance with Condition 8202 was not due to “exceptional circumstances” beyond his control.
Applicant’s submissions
Mr Dobbie referred the Court to the decision in Minister for Immigration and Citizenship v SZMDS (supra) per their Honours Crennan and Bell JJ at [130]-[131]. Mr Dobbie claims that the Tribunal’s decision was unreasonable, irrational or illogical because despite being unable to make, in its opinion, an informed judgment as to the actual effect on the applicant of the death of the applicant’s grandmother because there was very little documentary evidence, and given that it did not reject the applicant’s evidence given to it, the Tribunal nonetheless found that the applicant’s non-compliance with Condition 8202 was not due to “exceptional circumstances” beyond his control. It could not do so in those circumstances. This is not a case where reasonable minds might differ. The finding by the Tribunal was unreasonable, illogical or irrational on the evidence before it. The Tribunal therefore committed jurisdictional error.
Respondent submissions
Mr Godwin submits that this ground asserts irrationality arising from the conclusion of the Tribunal that it was positively satisfied that the applicant’s inability to attend his course was not caused by his grandmother’s death, when it found that there was very limited documentary evidence to allow the Tribunal to make an informed judgment as to the actual effect of the death of his grandmother. The decision of the Tribunal was that the grandmother’s death did not constitute an “exceptional circumstance”. After it had made this finding the Tribunal also said that it could not make an informed finding on the effect on the applicant of the death because of the absence of documentary evidence concerning the effect. It is simply providing reasoning as to why it considered that the circumstances, put forward by the applicant, were not exceptional. It is a matter upon which reasonable minds might differ.
Consideration – Ground 5
In the transcript of the Tribunal Hearing (Affidavit of Rosario Xiella Devine affirmed 16 September 2011) at Q15 the Tribunal Member explains the purpose of the hearing and the steps to be followed:
Q15… if I find that you did not comply with condition 8202, and it looks to me having looked at the… letter sent to you by your education provider, it looks like the certification is there, which means probably you didn’t comply with that condition. Then I need to go to the next step, which is I need to look at the issue of whether or not was that non- compliance was due, was to exceptional circumstance beyond your control. O.K. So there is some discretion available to me, even though you may have not complied with the attendance requirement of condition 8202. If I am satisfied that your non-compliance was due to exceptional circumstances beyond your control, then I have the discretion to give you back your visa. O.K.
(Transcript p. 3)
While the precise significance of the above comment may not have been fully appreciated by the applicant, he was being represented and assisted by a registered migration agent who should have been aware of what was being said by the Member. Effectively the only issue to be determined was whether the non-compliance was due to “exceptional circumstances” beyond the applicant’s control. The hearing then continued with discussion between the parties as to what happened when the applicant became aware of his grandmother’s death. Questions were asked in respect to what steps the applicant took to address his depression caused by the news, the length of time he felt that he was unable to attend college and any help or assistance that he sought.
The Tribunal member then made the following comments:
Q70… Well, what I need to do is think about what you’ve told me and see whether or not I’m satisfied that, that your non-compliance with condition 8202 was due to exceptional circumstances beyond your control, in particular the death of your grandmother and the effects, the physical and emotional and psychological effects on you that.
…
Q74… Do you think we’ve covered all of the issues that you think contributed to your poor attendance? I mean our discussion here today, do you want to, do you want, do you want any more time to provide a written submission or do you feel we’ve discussed the issues?
Q75… I mean there’s a question of whether there’s sufficient evidence for what’s being claimed as well. Again that comes down to the problem with the lack of medical certification. So there’s a number of issues. There’s, they included of course the point you made and the point I made that whether or not the death of a close relative can be considered exceptional circumstances.
Q86… why don’t you go away and talk about it. I won’t make a decision before the end of the week, OK, and if you feel there’s anything else you want to add that we haven’t discussed, just do a quick written submission and I won’t make a decision until next week at the earliest and maybe later than that, but I certainly won’t make the decision this week. And of there’s anything else you want to provide or add, then you can do that and I’ll take that into account.
(transcript p.11-13)
Although these remarks are addressed to both the applicant and his advisor, I believe that they are specifically addressed to the Migration Agent because he should have realised the nature of the questions being asked, and the opportunity to present further information in support of the applicant. The Member was being very specific as to what he believed was the major deficiency in the applicant’s case, namely the lack of evidence, and was offering an opportunity to rectify this problem. Clearly the applicant had not sought any form of help from either the college or the medical profession, however, there was no other evidence such as the reason for not seeking medical or emotional assistance. Nor was there any evidence concerning the details of the grandmother’s death.
In the Decision Record at [31] it states:
…However, the fact remains that there is very little documentary evidence that would allow the Tribunal to make an informed judgment as to the actual effect of the grandmother’s death on the applicant’s capacity to attend his course classes
(CB 92)
This conclusion expressed in the Findings and Reasons was the focus of the Tribunal Member’s concerns during the hearing and he was issuing an invitation to the applicant through his adviser to address this as a matter of urgency before the decision was formally made. The Tribunal Member was well aware of his responsibilities in relation to the state of his satisfaction required under s.65 of the Migration Act.
The requirement of s.65 was addressed by Her Honour Dodds-Streeton J in MZYHT v Minister of Immigration and Citizenship [2011] FCA 659:
40. Subsection 65(1) of the Act relevantly provides that, after considering a valid visa application:
(a) the decision-maker must, if satisfied that relevant criteria have been satisfied, grant the visa; and
(b) if not so satisfied, the decision-maker must refuse to grant the visa.
41. As the Tribunal expressly recognised, relevant authority establishes that the concept of onus of proof generally has no place in administrative proceedings: Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 424-5 per Brennan J. None the less, the Tribunal’s inquiry is inquisitorial (Minister for Immigration and Citizenship v SZIAI & Anor [2009] HCA 39; (2009) 111 ALD 15) and the Tribunal could not be satisfied of a particular matter if there were no evidence or other material regarding an important issue before it: NAQR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1033 at [33].
In an article by Professor Robin Creyke in Administrative Review 57 published March 2006 titled “’Inquisitorial practice in Australian Tribunals” addressed the issue of the ‘the onus of proof’ at p.28 in the following terms:
Rarely do the statutes establishing tribunals explicitly refer to the onus of proof. Despite this statutory silence, the general rule is that no party bears a legal onus of proof on tribunal proceedings: the onus falls instead on the tribunal. Nonetheless, it has long been accepted that this does not preclude there being a practical onus on the applicant to make and support their case.
At the same time, the fact that there is a practical onus on the parties does not prevent the tribunal itself taking on the evidence – gathering role. In an inquisitorial proceeding, the tribunal must ‘be satisfied’ of the outcome in the case. In order to meet this level of satisfaction it is often expected that a tribunal will adopt an interventionist role. This expectation has a direct impact on the onus of proof.
This can occur in one of two ways. The Tribunal frequently identifies and requires the parties to obtain evidence in order that it ‘be satisfied’ that it has reached the ‘correct or preferable decision’. This requirement is commonly imposed at preliminary proceedings. Equally, if the tribunal identifies a subject not raised at the hearing it may call evidence on that subject and adjourn the hearing until that evidence is obtained…
In the transcript of the Tribunal Hearing at Q50 the Member indicated to the Applicant and his advisor that:
…I’ve done a lot of similar cases to yours… I’ve done a lot of student visa cancellations and I have to say that the death a … close relative to whom the student is attached is not unusual…
(Transcript p.7)
Significantly, a long serving member of the Tribunal will accumulate knowledge about a particular set of circumstances being experienced by other students concerning the cancellation of their visas due to non-attendance of lectures, which they claim is the result of the death of a family member who was in the student’s home country. A member is entitled to use this knowledge when similar fact situations come before them. An administrative decision-maker is not denied from making reference to and to rely upon prior accumulated knowledge. In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507. His Honour Hayne J observed:
180. …The decision-maker, in a body like the Refugee Review Tribunal, will bring to the task of deciding an individual's application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications. A body like the Refugee Review Tribunal, unlike a court, is expected to build up "expertise" in matters...
The decision-maker, in the matter before this Court, has indicated that he has previous experience of student visa cases involving death of close relatives and would also be aware of the body of decisions that address this issue.
In the Tribunal Decision Record under the heading “Claims and Evidence” at [26] it states:
The applicant’s representative said that in the applicant’s (Sikh) culture, there is a stigma attached to seeking professional help for emotional/ psychological problems: one is expected to deal with such issues oneself.
This is referred to again in the “Findings and Reasons” at [31] in the following terms:
… The Tribunal also notes the absence of any evidence from professional medical sources supporting the applicant’s claim that he was unable to attend his course classes. The representative has argued that in the applicant’s (Sikh) culture, there is a stigma attached to seeking professional help for emotional/ psychological problems. However, the fact remains that there is very little documentary evidence that would allow the Tribunal to make an informed judgment as to the actual effect of the grandmother’s death on the applicant’s capacity to attend his course classes.
(CB 92)
As indicated above the Member was requesting the applicant, through his representative, to provide further information concerning Sikh culture, particularly in relation to the stigma attached to seeking professional help for emotional and psychological problems. A brief review of decision of both the Migration Review Tribunal and this Court reveals that the Sikh Association of Sydney, together with other organisations, provide information statements addressing Sikh culture. In the decisions of the Refugee Review Tribunal there are numerous cases that refer to issues of Sikh culture but these are not focussed on the specific issue in contention in the matter before this Court.
The Internet provides a wide variety of materials about Sikhism and the Sikh culture which is broadly informative and address the formation of the religion, and its main tenants and teachings, however, a review of this material does not specifically address issues specific to the questions before this Court. An article provided by Queensland Health makes brief comments about mental health and/or cognitive dysfunction and canvasses the following issues:
a)Sikh’s are encouraged to use pray and medication to alleviate depression, anxiety or other mental illness.
b)Sikh’s with mental illness are encouraged to participate in spiritual activities and gather at the gurdwara (temple).
c)Sikhism does not support the belief that cognitive dysfunction or mental illness are caused by spirit possession or as a punishment for breaking religious principles, Sikh’s are encouraged to seek medical treatment.
d)Although Sikhs should not attach stigma to cognitive dysfunction or mental illness, some Sikh’s may believe that mental illness is caused by external factors such as an evil eye or possession by demons or evil spirits.
e)Family members may attempt to hide mental illness from the community or other relatives due to possible stigma.
In respect to death and dying Sikh’s are encouraged to accept death and illness as part of life the will of God. Due to Sikh belief in the doctrine of Karma, some Sikh patients may be accepting of death. Some Sikh’s believe that excessive grief can interfere with the peaceful departure of the soul. As this material touches on the issue before the Court it would appear to be insufficient in explaining to a decision maker the absence of any attempt to seek assistance during a period of emotional distress caused by the death of a close relative. Another important consideration is that detailed material of this nature on a very specific subject may not be published in English and would require translation which makes it more appropriate for this task to be undertaken by the applicant and his representative.
Sections 359 and 363 of the Migration Act confer power on the Tribunal to obtain information, but do not impose an obligation or duty to exercise such power. This issue was addressed in respect to the equivalent provision of the Migration Act relating to the Refugee Review Tribunal being s.427: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at [43]:
…whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty on obligations to do so. Rather s 426 provides that, even of an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is under no duty to inquire.
(footnotes omitted)
The Tribunal has no general duty to make its own enquires in order to make the applicant’s case: Abebe v Commonwealth (1999) 197 CLR 510; (1999) 162 ALR 1 per Gummow and Hayne JJ at [187]:
… The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention… The Tribunal must then decide whether that claim is made out.
However, in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 Wilcox J suggests that where it was obvious that material was readily available which was centrally relevant to the decision to be made it would be unreasonable not to make the enquiry. At 169-170 his Honour stated:
The circumstances under which a decision will invalid for failure to inquire are, I think, strictly limited. It is not part of the duty of the decision maker to make the applicant’s case for him. It is not enough that the Court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to attain that information may properly be described as an exercise of the decision making power in the manner so unreasonable that no reasonable person would have so exercised it. It would follow that the Court, on judicial review should receive evidence as to the existence and nature of that information.
(emphasis added)
This authority was followed in Luu v Minister for Immigration and Multicultural Affairs (2002) 127 FCR 24 per Gray, North and Mansfield JJ at [28] where theirs Honours stated:
…After referring to the limited circumstances in which a decision maker is required to make inquiries: see Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 169-170 per Wilcox J, his Honour noted that any duty on the decision maker to inquire is generally restricted to material that is readily available…
Because of the very specific nature of the material required to support this proposition being advanced on behalf of the applicant, it is difficult to see that the material could be described as being readily available. It may have to be sourced from collections held in various libraries within Punjab, India. In the applicant’s submissions set out above Mr Dobbie relies on the decision in Minister for Immigration and Citizenship v SZMDS (supra) and in particular paragraphs [130]-[131] where their Honours Crennan and Bell JJ address the issues of illogicality and irrationality which is sufficient to give rise to jurisdictional error.
In the matter before this Court, the Tribunal Member during the hearing expressed his concern as to the lack of evidence in respect to the comments made by the applicant’s representative, that in the Sikh culture there was a stigma attached to seeking professional help for emotional and psychological problems. The Tribunal Member indicated that he would delay the making of the decision in order to permit the applicant and his representative to source and prepare written submissions addressing this issue. In the circumstances it would be reasonable to assume that the applicant’s representative who made this comment to the Tribunal was familiar with these details of the Sikh culture and would have or could rapidly obtain either existing documentation or a written statement from an authoritative source on this issue. In effect, the only basis advanced by the applicant on his behalf was this cultural issue as a basis of exceptional circumstance.
In response to the filing of the application for review to the Migration Review Tribunal (Form M1), the Tribunal, on 22 January 2011 forwarded “Acknowledgment of Application” which extended to Mr Harjinder Singh an invitation that if he wished to provide material or written argument for the Tribunal to consider that should be done as soon as possible. This invitation was repeated in the “Invitation to Appear Before the Tribunal” dated 24 May 2011, to the effect that “you may ask the Tribunal to obtain oral or written evidence from other persons or to obtain other written material. Such a request must be given to the Tribunal within 7 days of being notified of this invitation.” The invitation requires the applicant to read and complete the enclosed “Response to Hearing Invitation” to which any information that you request the Tribunal to consider is to be attached to that response form. The applicant’s representative should have been well aware of these requirements and what was required to advance his client’s case. The Court Book does not contain any material of this nature that was tendered to the Tribunal.
In Minister forImmigration and Citizenship v SZMDS (supra) at [135] their Honours stated:
…Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
I am satisfied on the material before the decision maker, which amounts to an accumulated knowledge, that the death of an immediate relative in the visa-holder’s home country is not necessarily considered as an “exceptional circumstance” with the applicant claiming that the distress and emotional impact of this event rendered him incapable of attending class for many weeks. The applicant indicated that he did not seek any assistance from the College, a medical practitioner or a support organisation. A very limited oral explanation by the applicant’s representative that Sikh culture considers that a stigma attaches to an individual seeking professional help for emotional or psychological problems. This is not supported by any form of published material or written statement from a recognised authority in Sikh culture. Despite the Tribunal Member extending an invitation to the applicant’s representative to address this deficiency at the time of the decision being made, no evidence to this effect is before the decision maker. With this status of the evidence and the requirements of s.65 it would not be unreasonable for another decision maker in the same position to reach the same conclusion as that arrived at by the Tribunal Member. In the circumstances the claim that the decision was unreasonable, irrational or illogical, cannot be sustained and should be dismissed.
Conclusion
Accordingly, none of the grounds pleaded in the applicant’s Amended Application can be sustained and the Application should be dismissed with costs.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 20 November 2012