Wang v Minister for Immigration

[2013] FCCA 1396

FEDERAL CIRCUIT COURT OF AUSTRALIA

WANG v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1396

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – whether Tribunal breached s.360 of the Migration Act 1958 (Cth) – whether Tribunal failed to take into account a relevant consideration – whether Tribunal fell into jurisdictional error.

Legislation:  

Migration Act 1958 (Cth), ss.116, 360

SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152

Applicant: ZHENG JIE WANG

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 33 of 2013

Judgment of: Judge Raphael

Hearing date: 11 September 2013

Date of Last Submission: 11 September 2013

Delivered at: Sydney

Delivered on: 11 September 2013

REPRESENTATION

Counsel for the Applicant: Mr A. Kumar

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Application dismissed.

2. Applicant to pay the respondents’ costs assessed in the sum of $4,500.00.

3. The name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 33 of 2013

ZHENG JIE WANG

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a young man who was granted a subclass 573 Higher Education Sector visa on 23 February 2010.  He utilised that visa to study at the Sydney Institute of Business and Technology[1] that appears to be an offshoot of Macquarie University.  On 17 June 2011 he received a letter from his education provider informing him that it did not believe that he had made satisfactory course progress.  It reminded him that over a number of semesters he had been placed on conditional enrolment and had moved through the three stages of warning.  It stated that the university was going to consider whether or not it should exclude him from his course for a period of 12 months and set out the grievance procedures available to the applicant.  The applicant utilised those grievance procedures but a decision was made that he would be excluded from the course.  The decision to exclude him was reported, as it was required to be, to the Department which wrote to the applicant advising him that it was considering cancelling his visa. 

   [1] SIBT

2. On 20 September 2011 the Department decided to cancel the applicant’s visa, and he was notified of that decision and his review rights on the same day. The visa was cancelled under s.116(1)(b) of the Migration Act 1958 (Cth)[2] on the basis that his education provider had certified that he did not achieve a satisfactory course progress.

   [2] The Act.

3. Section 116(1)(b) gives the Minister power to cancel a visa where the holder has not complied with condition 8202, which was applicable to this applicant’s visa, of not achieving satisfactory course progress. As set out in detail at [CB136-137] the Minister is obliged to cancel a visa under s.116(3) of the Act unless non-compliance was due to exceptional circumstances beyond the visa holder’s control, although in the regulations this is expressed in the negative.

4. The decision of the Migration Review Tribunal, to whom the applicant applied on 23 September 2011 for a review of the delegate’s decision, concerned itself with whether or not such exceptional circumstances existed.  The application for review to this court seeks to find jurisdictional error in the manner in which the Tribunal came to the conclusion that such exceptional circumstances did not exist and therefore it was obliged to affirm the decision to cancel the visa.

5. The applicant’s case for saying that the circumstances which led to his non-compliance with the visa condition were exceptional was that he was suffering from a psychological disorder that prevented him from completing his course successfully.  In support of that assertion he produced a report from a clinical psychologist, Dr John Jacmon, dated 13 September 2011.  This was some time after the notification by the Department that consideration was being given to the cancellation of the visa, although it was before the matter was considered by the Minister’s delegate. 

6. Mr Wang claimed he had several problems that caused the condition diagnosed by Dr Jacmon.  But it should be pointed out at this stage that Dr Jacmon’s report was based upon information provided by Mr Wang ex post facto the failure to achieve satisfactory course progress over a lengthy period of time.  It should also be pointed out that at [6] of the report the psychologist says:

   “The background of events led to a hypothesis that exceptional circumstances at the time of study difficulties caused an anxiety depressive disorder which detrimentally affected his functioning. …

   Mr Wang’s symptoms meet the indicated criteria hence the condition can be diagnosed as mixed anxiety depressive disorder.”

7. The circumstances considered by Dr Jacmon were that Mr Wang had difficulties in transferring from the more protective atmosphere of the housing that he was given whilst at school and the more independent accommodation he was required to be in at the university.  In addition, the applicant claimed that he began noticing problems between his parents and that over the period of time he was studying at SIDT these increased and began to affect his studies.  He would receive late night telephone calls from his mother and these caused a decrease in appetite, insomnia, headaches and difficulty concentrating.  He was concerned at the possible break-up of his family.  His mother claimed that his father was having an extramarital affair.  Another matter mentioned by the applicant as causative of his difficulties was that he was having a break-up with his girlfriend, possibly due in part to his mental condition arising out of the concerns he had over his parents.  He also felt as an overseas student that he was vulnerable.  He was the subject of racial discrimination, open to bullying and to assault.  He was conscious of the responsibility placed upon him by his parents to be successful and not to fail.

8. At the Tribunal hearing the applicant was questioned about all of these matters, but particular concern was expressed by the Tribunal at the fact that Mr Wang had not sought any help prior to the termination of his enrolment and had not reported his concerns or his deteriorating mental condition to his tutors at the time of his failure to pass his exams which, it must be remembered, extended over a fairly lengthy period of time.  The applicant explained this away by referring to the loss of face he felt he might suffer by going to a mental health professional and that it was only when he realised that psychologists were not the same as psychiatrists that he did agree to go.

9. During the course of the hearing, on several occasions, the Tribunal asked the applicant whether he had anything more to put to the Tribunal that might assist the Tribunal to come to a conclusion about whether exceptional circumstances existed.  Other than the matters previously referred to, he did not raise any, but after the closure of the hearing he submitted through his migration agent a medical certificate certifying that he was clinically blind in one eye [CB 131] and a short letter [CB130] which stated:

   “We are further instructed by the review applicant that the provision of medical certificate attached is to prove that the review applicant has problems with his left eye and as a result he was frequently scorned by his peers.  So he always holds a sense of inferiority.  For this reason he has more relied on his parents’ emotional support.  So the problems of his parents’ relationship during the period concerned have severely affected him in term of his capability of studying and normal life.” [As in original]

10. In the Tribunal’s findings and reasons it goes into considerable detail about the various causes of the applicant’s alleged psychological condition to an extent that, when read thoroughly, it is possible to ascertain the conclusions it comes to are founded on two bases.  The first is that none of the individual alleged causes of his problems were themselves exceptional.  While sympathetic, the Tribunal noted that these matters were things that happened to many people, both individually and cumulatively.  It was not strange for a teenager to break-up with his girlfriend, it was regrettably not strange that the parents of a teenager should have matrimonial problems, it was not strange that foreign students in this country should feel a sense of alienation.  But the Tribunal went further; it took into account and considered whether or not the psychological problems from which the applicant claimed he was suffering themselves constituted exceptional circumstances.

11. In order to do this the Tribunal had to make an assessment of the validity of Dr Jacmon’s report and its own assessment as to whether or not the applicant’s condition was as serious as he alleged.  In doing this it concluded that one of the concerns about his parents’ relationship about which he gave evidence was that it probably did not occur:

    “…the Tribunal does not accept the applicant’s claims that he witnessed bruises on his mother’s mouth.  The Tribunal has had regard to the applicant’s claims that he did not raise this issue because it was embarrassing and shameful and he could not “prove” it occurred and that he only decided to raise it at the hearing because he was fearful about his visa cancellation.  The Tribunal considers that this is a significant issue and does not accept that he would not have raised it with the psychologist or that he would not have mentioned it in his written submission to the Department or the Tribunal, both of which were made with the assistance of a migration agent.”  [59 CB148]

12. The Tribunal’s conclusions concerning the applicant’s psychological condition and whether or not it qualified as an exceptional circumstances in its own right, is found best at [58 CB147-148]:

    “Additionally, although the Tribunal has had regard to the applicant’s claims that he did not think to seek the assistance of a psychologist because of his lack of knowledge about such matters and the cultural factors and stigma associated with doing so, the Tribunal considers that the applicant had been studying in Australia for some time at that point and would have been aware that he could have sought medical or psychological assistance had he been suffering any serious psychological problems arising from the break up of his relationship.  The Tribunal considers that had he been suffering from any serious psychological problems at that time that he would have sought the assistance of a psychologist or other medical professional at the time of the non-compliance, rather than waiting until his visa was cancelled to do so. The Tribunal is not, therefore, satisfied that the evidence establishes that the breakup had such a serious effect on the applicant that it was either an exceptional circumstance or that it was the cause of the non compliance.”

13. In regard to the submission that the applicant’s parents’ marital problems also contributed towards the psychological problems which were themselves exceptional circumstances, the Tribunal said at [60] CB 148:

    “The Tribunal has considered whether the applicant’s parents [sic] quarrels and the effect that this had on the applicant was an exceptional circumstance beyond his control [...]  The Tribunal has also had regard to the psychologist’s report and reports provided to the Tribunal regarding parental quarrels and the effect that this may have on a child.  As stated above, the applicant sought the assistance of the psychologist after the visa was cancelled.  The Tribunal is not satisfied that there is any evidence to indicate that at the time of the non compliance that he was suffering from any psychological problems that were of such seriousness that they were exceptional or that they were the cause of non compliance.  As stated above, the Tribunal considers that had he been suffering from any serious psychological problems at the time of the non compliance, he would have sought the assistance of a psychologist or other medical professional at that time ...”

14. In an amended application filed with this court on 14 May 2013 the applicant sets out four grounds upon which he says the Tribunal fell into jurisdictional error in the manner in which it reached its conclusion that there were no exceptional circumstances.  The first ground was:

    “The Tribunal committed jurisdictional error when it breached s 360 of the Migration Act `958 in failing to allow the Applicant opportunity to hear evidence and present arguments regarding:

    Motivation for visiting consultant psychologist Dr John Jacman [sic];

    The impact of visa cancellation on his psychological state.

    Particulars

    The Tribunal surmised that (at [60], MRT decision, p 15/ CB 148) “had he been suffering from any serious psychological problems at the time of noncompliance , he would have sought the assistance of a psychologist or other medical professional at that time, …””

15. As will be seen from the extracts of the Tribunal decision included in these reasons, the Tribunal appears to have given the applicant every opportunity as required under s.360 of the Act to show it why the non-compliance was caused by exceptional circumstances beyond his control. The motivation for him visiting Dr Jacmon was not an issue in the proceedings.

16. The date upon which the applicant visited Dr Jacmon and its relation to the timing of the breaches of the condition was a matter upon which the Tribunal commented, but it did so in a way that utilised the comments as part of its reasoning in coming to the conclusion that it did.   And it can be inferred from its reasons that it did not really rely too heavily on Dr Jacmon’s diagnosis.  There is no obligation on the Tribunal to discuss its reasoning with an applicant:  SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152.

17. Insofar as the first ground alleges that the applicant had no opportunity to present arguments regarding the impact of the visa cancellation on his psychological state, this really is not a relevant matter.  It is the relationship between the applicant’s psychological state and his failure to comply with the condition that is important for the Tribunal to consider.

18. Ground 2 of the application is in the following form:

    “The Tribunal committed jurisdictional error by breaching s 360 of the Migration Act 1958 in failing to allow the Applicant opportunity to hear evidence and present arguments regarding how his blindness in one eye and [sic] affected his studies.

    Particulars

    The Tribunal accepted that blindness affected the applicant’s eyesight (at [55], MRT decision, p 13, CB 147) but failed to hear the Applicant regarding how it affected his studies.” [as in original]

19. It is to be remembered that the blindness issue was raised at the heel of the hunt in the manner extracted at [9] of these reasons.  It is the applicant’s duty to put to a Tribunal his reasons for claiming a beneficial decision from the Tribunal.  He put forward the blindness, not to suggest that he had difficulty in his studies, although the Tribunal accepted that this was a probability, but as further corroboration of the difficulties he suffered as a result of his parents’ marital problems.

20. The Tribunal had regard to that at [60] CB 148 and took it into account in considering the gravity of the psychological problems he claimed to have suffered from.  To my mind, that is all that the Tribunal was obliged to do, given the manner in which that evidence was put to it.  It is no part of the Tribunal’s duty to try and make a case for an applicant.

21. Ground 3 is in the following form:

    “The Tribunal committed jurisdictional error by disregarding the disorders diagnosed by the psychiatrist (Dr Jacmon) and its effects on the studies.

    Particulars

    The Tribunal ignored the finding and conclusions of Dr Jacmon on the basis that the consultation occurred following the cancellation of the visa (at [60], MRT decision, p 15/ CB 149).”

22. It cannot be said that the Tribunal disregarded the disorders diagnosed by Dr Jacmon.  The extracts from the decision record found in these reasons clearly point to an assessment of the report and express reasons, that were available to the Tribunal on the evidence before it, to conclude that it was unlikely that the applicant was suffering from serious psychological disturbance at the time of the breaches that would amount to exceptional circumstances.  That is a decision or conclusion of fact which this court cannot interfere with, because to do so would be providing the applicant with impermissible merits review.

23. Ground 4 is:

    “The Tribunal committed jurisdictional error by misdirecting enquiries as to exceptional circumstances in regard to his psychiatrist [sic] condition and his claim of depression and / or failing to take into account relevant circumstances when the Applicant was suffering from depression (per report Dr Jacmon’s report [CB54-63].

    Particulars

    The Tribunal failed to address the finding and conclusions of Dr Jacmon of the Applicant’s on the Applicant’s diagnosis of depression constituted exceptional circumstances instead taking certain aspects (such as break up with girlfriend and other matters) and failing to take into account the depression and whether it could constitute exceptional circumstances ((CB 147-CB 149) at [58]-[60], MRT decision, p 15).” [As in original]

24. The essence of this claim is that the Tribunal did not do what the court believes it did do, which was to look at the psychological difficulties in themselves as exceptional circumstances, rather than just the causes of those psychological difficulties.  For the reasons given above, the court believes that the Tribunal gave reasons for making a finding that it could not be satisfied that the difficulties which were diagnosed by Dr Jacmon manifested themselves in such a serious manner, at the time of the breaches, that they could constitute exceptional circumstances.

25. It follows from this discussion that I am unable to accept that any of the grounds raised by the applicant, and so clearly articulated by Mr Kumar in his helpful submissions, constitute a jurisdictional error.  The application must be dismissed and the applicant shall pay the respondents’ costs, which I assess in the sum of $4,500.00.

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

Associate: 

Date:  18 September 2013