Xu v Minister for Immigration
[2011] FMCA 450
•15 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| XU v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 450 |
| MIGRATION – Application to review decision of Migration Review Tribunal – whether Tribunal finding of its state of satisfaction was irrational and illogical and not based on findings and inferences of fact supported on logical grounds – whether apprehended bias in the Tribunal’s treatment of a diagnosis in a psychologist’s report. |
| Education Services for Overseas Students Act 2000 (Cth), ss.19, 20 Migration Act 1958 (Cth), ss.65, 116, 368, 430 Migration Regulations 1994 (Cth), reg.2.43 |
| Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 MZXSA v Minister for Immigration and Citizenship and Another (2010) 117 ALD 441; [2010] FCAFC 123 |
| Applicant: | XIAOQIANG XU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1735 of 2010 |
| Judgment of: | Barnes FM |
| Hearing date: | 17 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gormly |
| Solicitors for the Applicant: | Haworth & Lexon Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
SYG 1735 of 2010
| XIAOQIANG XU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal dated 8 July 2010 affirming a decision of a delegate of the first respondent to cancel the applicant’s Subclass 573 Higher Education Sector Student Visa.
The applicant, a citizen of the People’s Republic of China, arrived in Australia in February 2007, aged 17, as the holder of a High School Visa Subclass 571. He attended boarding school and completed his Higher School Certificate in 2008.
In 2009 the applicant commenced studies at the Sydney Institute of Business and Technology (SIBT) for a Certificate IV in University Foundation Studies.
On 19 January 2010, SIBT certified Mr Xu as not achieving satisfactory course attendance for s.19 of the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) and Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007).
On the same day SIBT notified the applicant pursuant to s.20 of the ESOS Act that the certification gave rise to a breach of a prescribed condition of his student visa, being condition 8202 in Schedule 8 to the Migration Regulations 1994 (Cth).
The applicant was given a Notice of Intention to Consider Cancellation of his visa by a delegate of the first respondent. He was given the opportunity to respond. On 10 March 2010 a delegate of the first respondent decided to cancel the applicant’s student visa.
On 12 March 2010 the applicant sought review by the Tribunal. The Tribunal wrote to the applicant on 1 April 2010, putting to him information about the certification and s.20 ESOS notice of 19 January 2010; advice from SIBT that it had sent (and the applicant had accessed) three warning emails in November 2009 and an intention to report email on 11 December 2009; and that a student advisor had advised him on 17 December 2009 that he had to lodge any official appeal in relation to SIBT’s intention to report letter within 20 working days. In addition the Tribunal put to the applicant information from the education provider’s records about his actual attendance in the three semesters in 2009 (Semester one: 74.11%, Semester two: 77.38% and Semester three: 62.50%); Department records about his four absences from Australia in 2009 and 2010 (from 7 June to 30 June 2009; 29 September to 24 October 2009; 3 December to 10 December 2009 and 8 February to 22 February 2010); as well as information about travel times and the availability of public transport between Waitara (where the applicant lived) and Macquarie University (where the applicant studied).
The applicant responded to this letter with an affidavit and supporting statutory declaration from a flatmate. He claimed that he had difficulty adapting to SIBT after secondary school, that he made flight bookings before he realised what term dates were and that he had an “Obnoxious Roommate”. He also gave reasons for his lateness to class. He claimed to have experienced homesickness; that part of his absence was to attend his sister’s wedding and that he had been ill. In addition he claimed he had miscalculated the time he had to respond to the 16 December 2009 notice from SIBT.
The applicant was invited to and attended a Tribunal hearing on 9 June 2010. Prior to the Tribunal hearing, the applicant provided a supplementary affidavit addressing his concerns about his father’s business, his sister’s move from China and the fact that he had been seeing a counsellor at SIBT together with a “psychological report” dated 19 May 2010 prepared by Mr Borenstein, a clinical psychologist, for his solicitors.
The psychologist’s report
As both grounds relied on in these proceedings relate to the Tribunal’s treatment of the report and diagnosis by the clinical psychologist it is relevant to describe the report in some detail.
Mr Borenstein confirmed in his report that he was “familiar with both District Court and Supreme Court Rules with regards to the Code of Conduct for Expert Witnesses and agree[d] to be bound by same”.
He attached a copy of a brief curriculum vitae which recorded his extensive experience and his qualifications.
The report was said to have been prepared on the basis of an interview and assessment of Mr Xu on 17 May 2010. Mr Borenstein was also provided with a copy of Mr Xu’s affidavit. Mr Borenstein described Mr Xu’s enrolment in the certificate/diploma course at SIBT which it was said, with a further two years’ study at Macquarie University, would result in a Commerce Degree. It recorded that Mr Xu had had “difficulties adapting to university life and living on his own” after successful completion of secondary school studies at a boarding school and that he had lived on his own between February 2009 and June 2009, then moved to Waitara where he shared accommodation.
The report set out in some detail Mr Xu’s claims to the psychologist about his background and relationships with his parents, his particularly close relationship with his older sister, his concerns about her move to Singapore, the financial difficulties facing his father’s business and his situation in Australia, including the absence of any family or support and the difficulties he experienced at University and the symptoms he claimed he experienced.
The psychologist recorded that Mr Xu had “no prior history of psychiatric or psychological contact”, but that when asked whether he had consulted a counsellor at school or at University, had advised that “this semester” (in 2010) he had seen the counsellor “many times” because he worried about his attendance. He had also claimed that his attendance had “improved significantly in 2010” as he had “adapted to his changed family life circumstances” and had frequent telephone contact with his sister, although he remained “concerned about his father’s business”.
Mr Borenstein recorded that “Mr Xu continue[d] to suffer with sleep disturbance, particularly given current concerns his visa could be revoked”, although his “sleep patterns ha[d] improved”. It was said that he remained “somewhat socially isolated” and that he “tend[ed] to retreat to his room”, although he was said to be “making a concerted effort to mix with people compared to how he was in the last semester of 2009”. The applicant’s motivation was said to have improved, he was “creating more structure and routine in his life” and “attending to his university requirements”. Mr Borenstein recorded his observations on examination of Mr Xu as follows:
I deemed his mood to be mildly depressed and he was mildly to moderately anxious. His disposition and demeanour is best described as serious, and his affect is restricted.
The psychologist found that Mr Xu presented “as an open and honest historian”, that there was “no suggestion of major psychiatric disorder” or of “perceptual disturbance” and that “Mr Xu present[ed] as cognitively intact”.
Under the heading “Opinion” the psychologist recorded that “Mr Xu was in the throes of a Major Depressive Episode between October 2009 and January 2010.” The onset of this “Major Depression” was said to have “coincided with [Mr Xu] learning about his sister’s wedding” and that “his father’s business was suffering”. It was said to have occurred in circumstances where Mr Xu was “already having difficulties adapting to university life from boarding school” having never lived on his own and in the absence of “solid friendships” in circumstances where there was “ongoing disruption as his [then] flatmate [was] …noisy and disruptive”.
The report continued:
Mr Xu’s Major Depression was evident by sleep disturbance, appetite disturbance, weight loss, reduced motivation, emotional lability, teariness, sadness, lack of pleasure, withdrawal, isolation, and lack of energy. Mr Xu made an attempt to attend university, but by virtue of his Major Depression found it hard to motivate himself. Further evidence of his Major Depression was the fact Mr Xu’s normally high standards of hygiene suffered, and he would not shower for upwards of three days.
The psychologist expressed the opinion that Mr Xu’s psychological state had improved when he reconnected with his family in December 2009 and recorded that while his attendance record and motivation had improved, Mr Xu “remains with some sleep disturbance and a tendency to worry and ruminate”.
The report continued:
Mr Xu continues to experience residual symptoms of depression. There has been marked improvement compared to the months coinciding between October 2009 and January 2010. Mr Xu has consulted a counsellor at university and continues under his care.
Mr Xu requires ongoing psychological assistance to ensure he does not regress into a major depressive episode of the sort that coincides with his poor attendance at university in the latter half of 2009. Mr Xu may benefit from the introduction of antidepressant medication. He appears to be slowly improving and adapting to his life circumstances with the assistance of the university counsellor.
Mr Xu suffered with Major Depression which directly impacted on his attendance and academic performance in the latter half of 2009. I trust the Migration Review process will keep in mind Mr Xu’s Major Depressive episode over and above difficulties adapting to university after a two year attendance at boarding school at Moss Vale.
Mr Borenstein invited contact if further information was required.
After the hearing the Tribunal wrote to Mr Xu inviting him to comment on information provided by SIBT in relation to the provision to students of a diary containing semester dates for the entire 2009 year and the fact that the 2009 academic calendar would have been placed on the website in December 2008. That was said to be relevant in relation to the applicant’s claims that he was unaware of semester dates at the time he booked travel to China.
His advisor replied, explaining that while the dates were available, Mr Xu was not aware of them. The advisor elaborated on Mr Xu’s difficulties in late 2009. On 1 July 2010 the advisor provided the Tribunal with a satisfactory attendance certificate and academic results for Mr Xu for Semester one of 2010.
The Tribunal decision
In its reasons for decision the Tribunal referred to the applicable law and the applicant’s claims and evidence. In particular, it recorded that the effect of s.116(1)(b) of the Migration Act 1958 (Cth) and reg.2.43(2)(b)(ii) of the Migration Regulations was that the visa must be cancelled if the Tribunal was satisfied the visa holder had not complied with condition 8202 and that the non-compliance was not due to exceptional circumstances beyond his control.
It recorded that at the hearing the applicant had stated that he “did not even know why he was sad and depressed all the time”, but that “after speaking with the psychologist he now underst[ood] the reasons behind his depression at the time and why he acted as he did”. The applicant confirmed that he had consulted with the psychologist on 17 May 2010. The Tribunal observed that this “appear[ed] to be the only consultation” and that the psychologist had “relied on an affidavit from the applicant” and the May 2010 consultation in preparing the report. The applicant also told the Tribunal that he had seen a counsellor at SIBT “several times” in 2010. He claimed that he had not known about the service until he was referred to the counsellor after his visa was cancelled.
The Tribunal summarised the psychological report as indicating “that the applicant had a major depressive illness between October 2009 and December 2009/January 2010”, but that he “had however improved and showed only minor symptoms now.”
The Tribunal recorded the applicant’s evidence at the Tribunal hearing about his circumstances during the period leading up to January 2010, and his claims “that his attendance problems were due to exceptional things regarding his family” and that his “mood was poor”.
The Tribunal referred to the submission from the applicant’s advisor that although the applicant had experienced “sickness, depression and constant insomnia throughout the third semester” in 2009 he had “managed to pass 50% of his courses” and that after visiting the school counsellor and the psychologist his attendance had improved and he had obtained “excellent results”. The academic records before the Tribunal showed that Mr Xu “was achieving passes and credits” and “his attendance was 83%” in Semester one of 2010.
In its findings and reasons the Tribunal found that the applicant’s visa had been cancelled under s.116 of the Act, on the basis of a failure to comply with a condition of his visa being condition 8202.
The Tribunal was satisfied that the applicant had not complied with condition 8202(3)(b) as in force from 1 July 2007, having regard to the fact that on 19 January 2010 SIBT had certified him as not achieving satisfactory course attendance for s.19 of the ESOS Act and Standard 11 of the National Code 2007. No issue was taken with this aspect of the decision.
The Tribunal then considered whether or not the breach was due to exceptional circumstances beyond Mr Xu’s control. It considered the reasons provided by the applicant for his unsatisfactory attendance, including his claimed initial problems adjusting, and his improvement in second semester from June 2009 when he undertook three subjects. It recorded that he had enrolled in four subjects in the semester starting October 2009.
The Tribunal set out Mr Xu’s claims that “he was homesick and [that] this affected his mood”, that he was “close to his family especially his older sister who would be living in Singapore after she married”, and that he “became depressed and could not bring himself to go to school and see other people being cheery and happy”.
The Tribunal stated:
The Tribunal accepts that the applicant had some problems adapting to study at college after boarding school. It accepts that he was homesick. However, there is nothing to indicate, from the applicant or the psychologist, that the applicant would have experienced any greater problems than any other overseas student who was in a strange country without family support. The Tribunal is not satisfied that this factor constitutes exceptional circumstances beyond the applicant’s control leading to the breach.
The Tribunal also accepted the applicant was “very close to his older sister” and that he “would have been upset at the prospect of her moving to live in Singapore after her marriage as this would lessen his contact with her”. However it was “of the view that this factor would not have a greater impact on the applicant than any change in family circumstances, such as a sibling relocating, would have on any other person living away from his family”.
The Tribunal also found that “the evidence from the psychologist shows that the applicant is in fact managing well with his sister’s move, contacting her by phone on a regular basis”. It was “not satisfied that the marriage and relocation of the applicant’s sister, and his being distressed about it, [was] an exceptional circumstance beyond the applicant’s control leading to the breach”.
Nor was the Tribunal satisfied that the family’s financial problems and the applicant’s worry about this from October 2009 on constituted an exceptional circumstance beyond the applicant’s control leading to the breach, given that while the applicant was worried about this, “there was a global economic downturn and many businesses were adversely affected” and “the family business did in fact continue and weather the crisis”.
As to the applicant’s absence from SIBT due to him being in China for the first week of the third semester in circumstances where he claimed “he did not realise that he would miss the beginning of semester”, the Tribunal had regard to the fact that “information from the college show[ed] that the dates of the semesters and breaks [we]re available to all students on the college website from the start of the academic year”. The Tribunal acknowledged that the applicant had told it that he did not check the date of resumption of classes before booking flights and that he later found out he could not change the flights. However the Tribunal was of the view that the applicant’s “missing class for a week was entirely [his] decision and choice”. It was not satisfied that this constituted exceptional circumstances beyond the applicant’s control leading to the breach.
The Tribunal accepted that the applicant would have returned to China for his sister’s December 2009 wedding, but found that “this led to [him] missing only a few days of classes”. It was “satisfied [that his] unsatisfactory attendance and non-compliance was not due to this event”. It was not satisfied that this constituted exceptional circumstances beyond his control leading to the breach.
The Tribunal found that there was “little evidence” before it as to the applicant’s illnesses and that while he and his flatmate had said he had “flu like symptoms”, there were “no medical reports showing the nature…or duration” of such illness, “as the applicant never sought medical attention”. While the Tribunal found that “lack of medical attention in itself is not adverse”, it also found that given that it was “unable to establish the frequency, nature or duration of the applicant’s illnesses”, it was “unable to determine the actual impact of the illness on [the applicant’s] attendance”. It was therefore not satisfied that the applicant’s illness was an exceptional circumstance beyond his control which led to the breach of condition 8202.
The Tribunal accepted that “the applicant’s flatmate was noisy and disruptive” for the several months they shared accommodation, but also found that apart from raising the issue with the flatmate, the applicant had taken “no other action to prevent or limit the problem it caused him”. It was “not satisfied that the impact of [that] flatmate’s presence and behaviour was an exceptional circumstance beyond the applicant’s control”.
Nor was the Tribunal satisfied that the college policy of marking students absent for the whole class when late for class was an exceptional circumstance beyond his control which led to the breach, having regard to the fact that the applicant was “clearly aware” of the policy which “applied to all students”. The Tribunal accepted that it took the applicant an hour to get to college from where he lived, but was “of the view that it [was] the applicant’s responsibility to allow sufficient time to arrive…on time” and was “not satisfied that this [was] an exceptional circumstance beyond his control which led to the breach of condition 8202”.
The Tribunal then stated:
The Tribunal has carefully considered the evidence in relation to the applicant’s mental and psychological state at the relevant time. The psychologist who diagnosed major depressive illness did so some five months after it was stated to have occurred. He did not examine or assess the applicant either during or near the relevant time. He stated in his report that the applicant, at the time of the examination, showed only minor symptoms of any depression. This means that the psychologist relied entirely on the applicant’s reporting of his symptoms in reaching the diagnosis. The Tribunal is not doubting the accuracy of this diagnosis when based on these reported symptoms. However, as there is no contemporaneous evidence, other than that of the applicant, the Tribunal is not prepared to accept this diagnosis as conclusive of the applicant’s suffering a major depressive illness at the time of the breach. The Tribunal is not satisfied that the applicant’s mental state constitutes exceptional circumstances beyond his control which led to a breach of condition 8202.
The Tribunal went on to consider “the cumulative effect of these factors in the applicant’s situation”, which were said to consist of his “initial problems adjusting to college and his homesickness, missing classes while in China after the October 2009 break and being at his sister’s wedding, being late for class and being marked absent, the noisy disruptive flatmate, his concerns about his sister’s wedding and move to Singapore, his illnesses, the family’s financial issues, and his mental and psychological state”.
However the Tribunal was of the view that “these factors [we]re to be expected in many student’s lives, when they [we]re away from home in a strange country”, and that “[i]ssues of adjusting and homesickness, changes in family dynamics” and “the financial vicissitudes of business [we]re common to many people”. It found that the “applicant’s lateness to class and his absence because of the travel to China [we]re due to [his] own actions and decisions”. The Tribunal reiterated that there was “no evidence of the nature or severity of the applicant’s illnesses” and found that:
There is no contemporaneous information about the applicant’s mental state at the time of the breach and so the Tribunal cannot establish whether this caused the other factors to have a greater impact than they otherwise would.
The Tribunal was “not satisfied that these factors, even when taken as a whole, [were] exceptional circumstances beyond the applicant’s control leading to the breach of condition 8202”.
After finding that there were no circumstances which had to be taken into account within Ministerial Direction No 38 the Tribunal concluded that it was satisfied that the applicant did not comply with condition 8202 and that the ground for cancellation within s.116(1)(b) of the Act therefore existed. It was further satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control and that such circumstances were prescribed circumstances in which the visa must be cancelled in accordance with s.116(3) of the Act.
The Tribunal affirmed the decision to cancel the applicant’s subclass 573 Higher Education Sector Student Visa.
The applicant sought review by application filed in this court on 10 August 2010. There are two grounds in the application.
Failure to exercise jurisdiction – Irrationality and Logicality
The first ground in the application as follows:
The Tribunal’s finding of its satisfaction that the applicant’s non-compliance with condition 8202 was not due to exceptional circumstances beyond his control, pursuant to reg 2.43(2)(b)(ii)(B) Migration Regulations 1994 was irrational and illogical and not based on findings and inferences of fact supported on logical grounds.
Particulars:
a.A psychologist diagnosed the applicant as suffering from a major depressive illness at the time of the breach;
b.The Tribunal accepted a diagnosis of major depressive illness would follow from the symptoms reported by the applicant;
c.Nevertheless the Tribunal declined to accept the psychologist’s diagnosis at the time of the breach as the diagnosis was made on the basis of symptoms later reported to the psychologist by the applicant and not on the basis of contemporaneous evidence;
d.The Tribunal made no findings that the applicant had not suffered the symptoms he had reported to the psychologist, nor that he had not consulted the psychologist as the psychologist had reported, nor did the Tribunal make any findings against the applicant’s credibility generally;
e.In the absence of the findings in (d) the Tribunal’s requirement of contemporaneous information of the applicant’s mental state apart from the applicant’s own reporting was unreasonable and its finding of its own satisfaction irrational.
Counsel for the applicant submitted that the Tribunal’s lack of satisfaction about the matters in reg.2.43(2)(b)(ii)(B) of the Migration Regulations was “arbitrary and amounted to a jurisdictional error”.
It was contended that the error could also be categorised as an unreasonable finding as to the state of satisfaction as considered in NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 (at [129] – [135] per Allsop J).
Regulation 2.43(2)(b)(ii)(B) requires that the Tribunal be satisfied that the applicant’s non-compliance with the conditions of his student visa was not due to exceptional circumstances beyond his control. It was submitted that “a diagnosis of a Major Depressive Episode at the relevant time” would “apparently” have satisfied the Tribunal of the matters in reg.2.43(2)(b)(ii)(B) and that in such circumstances the Tribunal’s lack of satisfaction could not be arbitrary, capricious, irrational, or not bona fide (see The King v Connell and Another; Ex parte The Hetton Bellbird Collieries Limited and Others (1944) 69 CLR 407; [1944] HCA 42 per Latham CJ, Rich and Williams JJ and also see Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 at [3] per Gibbs J). The applicant contended that if an opinion was so formed this would amount to a jurisdictional error (Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194; [2000] HCA 47 at [31] per Gleeson CJ, Gaudron and Hayne JJ).
In oral submissions it was said that the Tribunal fell into jurisdictional error in the manner identified by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16. Their Honours stated at [119] – [120]:
Whilst the first respondent accepted that not every instance of illogicality or irrationality in reasoning could give rise to jurisdictional error, it was contended that if illogicality or irrationality occurs at the point of satisfaction (for the purposes of s 65 of the Act) then this is a jurisdictional fact and a jurisdictional error is established. This submission should be accepted. The Minister's counter submission that illogicality or irrationality in fact finding could not without more establish jurisdictional error evokes the familiar distinction between errors of law and errors of fact, or between jurisdictional error and error in the exercise of jurisdiction. The distinction between errors of law and errors of fact is subject to an important qualification in respect of jurisdictional facts. In S20, Gummow and McHugh JJ rejected the view that all review grounds must amount to an error of law not fact as they noted that a "'jurisdictional fact' which supplies the hinge upon which a particular statutory regime turns may be so identified in the relevant law as to be purely factual in context."
An erroneously determined jurisdictional fact may give rise to jurisdictional error. The decision maker might, for example, have asked the wrong question or may have mistaken or exceeded the statutory specification or prescription in relation to the relevant jurisdictional fact. Equally, entertaining a matter in the absence of a jurisdictional fact will constitute jurisdictional error.
It was submitted that the earlier authorities relied on by the applicant were followed by Crennan and Bell JJ in SZMDS. Their Honours stated (at [122]):
Just as the unreasonableness of a result was referred to in Avon Downs, correspondingly, the “reasonableness” of a decision has often been considered in circumstances where a public officer must be “satisfied” of some fact or circumstance. In R v Connell;
Ex parte The Hetton Bellbird Collieries Ltd, it was not suggested that such an officer must prove his or her satisfaction. However it was found that a requirement that a public officer be “satisfied” of certain facts or have “reasonable cause” to believe facts imports a requirement that the opinion is one that could be formed by a reasonable person. The Chief Justice went on to state:“If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.”
Further, satisfaction of the existence of facts must amount in point of law to what an empowering provision prescribes or specifies. As explicated subsequently by Gibbs J in Buck v Bavone, this means a decision-making authority which must be satisfied of certain facts “must act in good faith; it cannot act merely arbitrarily or capriciously.” His Honour went on to say that even if certain specified errors could not be established “the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it”. Such formulations convey the idea that a court should not lightly interfere with the administrative decision-making.
Reference was made to the fact that in NADH of 2001 Allsop J referred (at [12]) to such authorities in the course of outlining circumstances in which apprehended bias may be established on the basis of a decision-maker’s reasons. His Honour also analysed the law in relation to an unreasonable finding of a state of satisfaction (at [129] – [135]) in addressing an argument based on High Court authorities referring to the necessity for the Tribunal to act judicially (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [8] and [9] per Gleeson CJ; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [145] per Gummow J, and Corporation of the City of Enfield v Development Assessment Commission and Another (2000) 199 CLR 135; [2000] HCA 5 at [34] per Gleeson CJ, Gummow, Kirby and Hayne JJ). As stated by Allsop J in NADH of 2001 (at [135]):
The Tribunal was required to reach its state of satisfaction in a reasoned fashion (even if, for the purposes of this discussion, exhibiting a degree of illogicality). It was obliged not to act capriciously, that is, it was obliged not to reach an opinion arbitrarily or by whim or, with the exception of proper credit findings, by intuition.
While Allsop J found that it was unnecessary in NADH of 2001 to decide the extent to which irrationality or illogicality constituted or gave rise to a jurisdictional error, the applicant submitted that in this case the Tribunal had not acted judicially in that its state of satisfaction was unreasonable in relation to the psychologist’s report, having regard to its arbitrariness. The arbitrariness of the Tribunal’s lack of satisfaction was said to be apparent from the fact that its refusal to accept the diagnosis of the psychologist “was not based on findings and inferences of fact supported on logical grounds” (as considered in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 at [37] – [38] per Gummow and Hayne JJ).
It was also noted that in MZXSA v Minister for Immigration and Citizenship and Another (2010) 117 ALD 441; [2010] FCAFC 123 at [42], the Full Court of the Federal Court had referred to NADH of 2001 in finding that it was:
…not in doubt that a decision made by the Tribunal may be affected by jurisdictional error where it is irrational, illogical and not based on findings or inferences of facts supported by logical grounds.
Counsel for the applicant submitted that the Tribunal had found “essentially that it could not accept the [psychologist’s] diagnosis because it had been made five months after the time of the Major Depressive Episode and that the psychologist had not examined or assessed the applicant during or near the time of the Episode” and that the Tribunal took this to mean that the psychologist had “relied entirely on the applicant’s reporting” of his symptoms in reaching his diagnosis.
It was submitted that the Tribunal’s refusal to accept the diagnosis of the clinical psychologist simply for lack of contemporaneous evidence was arbitrary or unreasonable. While the Tribunal reasoning was not expressed in terms of the weight to be given to the report, it was submitted that there was in effect no weight attached to it, notwithstanding that the report was the report of an experienced clinical psychologist who had certified that it was in accordance with the Uniform Civil Procedure Rules which apply to expert evidence in the Supreme Court and District Court of New South Wales and include a general duty that an expert witness has to assist the court impartially.
It was also submitted that the rejection of the psychologist’s evidence was unreasonable in the absence of a statement in the discussion of reasons for such rejection pursuant to s.368 of the Migration Act. Reliance was placed on the remarks of Kenny J in Minister for Immigration and Citizenship v SZLSP and Others (2010) 187 FCR 362; [2010] FCAFC 108 in relation to the principle that Refugee Review Tribunal reasons are prepared in the context of s.430 of the Migration Act and must be read in the light of that section’s requirements on the basis that the same may be said in relation to Migration Review Tribunal reasons prepared in the context of s.368 of the Act. Kenny J stated at [55]:
In the ordinary course of things, a reviewing court is bound to consider, consistently with s 430, that what purports to be the Tribunal’s written statement under s 430 sets out what were in fact the reasons for the Tribunal reaching the decision set forth in that statement; the findings set out therein are the findings the Tribunal actually made and considered material to its decision; and the evidence and other material referred to therein is in fact the evidence and material on which the Tribunal based those findings. To do otherwise would transform judicial review into an exercise in divination of the sort s 430 was designed to avoid. Considering the function of s 430, a reviewing court should not depart from this approach unless there is a sound reason to do so.
Counsel for the applicant acknowledged that it was not for the court to try to divine reasons as to why the Tribunal might have rejected the evidence in question, but observed that there was “no evidence or finding by the Tribunal” that “the applicant was not a reliable or truthful witness”; that he “had not consulted the psychologist as the psychologist had reported”; that he “had not suffered the symptoms he had reported to the psychologist” or “challenging the psychologist’s view or his capacity to assess that the applicant presented as an open and honest historian”. Nor was there “competing medical evidence” in circumstances where “the Tribunal did not doubt the accuracy of the diagnosis based on the reported symptom[s]” or any evidence or finding by the Tribunal “otherwise challenging the psychologist’s professional ability” or honesty; “the psychologist’s own overview of his qualifications”; or “otherwise undermining the psychologist’s report and diagnosis”. It was submitted that if any of these matters had constituted a reason for the Tribunal not to accept the psychologist’s diagnosis, then that matter would be a material question of fact within the meaning of s.430(1) of the Act (this was clearly intended to be a reference to s.368(1) of the Act). It was submitted that in the absence of a finding on any such material matters in the Tribunal’s reasons (other than the lack of contemporaneity of the psychologist’s report) it was apparent that the Tribunal did not make findings on other such matters (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [5] per Gleeson CJ and [33] – [34] per Gaudron J) or did not regard them as material.
It was contended that a failure by the Tribunal to make findings on material matters “may disclose a failure to exercise jurisdiction” (Yusuf at [10] per Gleeson CJ) or other jurisdictional error (Yusuf at [35] per Gaudron J) and that in this case the Tribunal had failed to exercise jurisdiction in that its approach to the psychologist’s diagnosis was, in the absence of consideration of factors such as any of the matters mentioned, “bereft of supporting material and rational or reasoned foundation, and was inexplicably selective of the …evidence” (NADH of 2001 per Allsop J at [136]).
The applicant submitted that it was no answer to say that it was open on the evidence before the Tribunal to take the position the Tribunal took. Notwithstanding that it was acknowledged that it would have been open to the Tribunal to have regard to whether evidence was contemporaneous, it was submitted that the mere passing of time did not of itself point to the implausibility of the diagnosis.
Further, it was pointed out for the applicant that the Tribunal had accepted the existence of the main stressors identified by the psychologist (that the applicant had problems adapting to study at college after boarding school and was homesick; that he was very close to his older sister and would have been upset/distressed at the prospect of her moving to live in Singapore; that he discovered the family’s financial problems in October 2009 and would have been worried about this; and that his flatmate was noisy and disruptive for the several months he was there).
The applicant submitted that the Tribunal’s emphasis on contemporaneity was at odds with its acceptance that the applicant showed minor symptoms of any depression at the time of the examination. The psychologist had noted that the applicant’s psychological state had improved, but that he “continues to experience residual symptoms of depression” in circumstances where the psychologist accepted that the applicant continued to suffer some sleep disturbance, remaining social isolation and a tendency to worry or ruminate.
It was contended that the approach that the Tribunal took to the psychologist’s report would in effect mean that any expert report could be rejected without any underlying reason if it was made after the events in question. While counsel for the applicant acknowledged that a Tribunal was not bound to accept such a report, it was submitted that the approach in this instance was unreasonable and that the Tribunal’s finding of its own state of satisfaction was irrational.
This ground is not made out. While in SZMDS Crennan and Bell JJ accepted (at [119]) that if illogicality or irrationality occurred at the point of satisfaction for the purposes of s.65 of the Migration Act this was a jurisdictional fact and a jurisdictional error was established, as their Honours pointed out at [121]:
Setting a test or formula for isolating the implied category of discretionary decisions which are "unreasonable or clearly unjust" has not proved simple.
Relevantly, after considering earlier decisions in relation to the scope of concepts of “illogicality” and “irrationality” in decision-making their Honours concluded at [130] – [131]:
In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
As the first respondent submitted, the fact that the Tribunal was not prepared to accept that the psychologist’s report based on the applicant’s reporting of symptoms some five months after the time in question was “conclusive” of the applicant suffering major depressive illness at the time of the breach does not demonstrate jurisdictional error. It has not been established that the decision the Tribunal came to in relation to its state of satisfaction as to whether the breach of condition 8202 was due to exceptional circumstances beyond the applicant’s control, was one that no reasonable decision-maker could have come to, that it was not open to the Tribunal in the sense considered in SZMDS or that it was otherwise such as to involve jurisdictional error.
It was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings that it did on the material before it (see SZMDS at [133]). In particular, it was open to the Tribunal to find that the lack of evidence contemporaneous with the claimed episode of depressive illness went to the weight to be given to the psychologist’s diagnosis. It gave reasons for its finding (see.368 of the Act). The Tribunal had regard not only to the lack of contemporaneous evidence other than that of the applicant, but also to all the evidence as to his mental and psychological state at the relevant times, including the fact that as the psychologist had found that the applicant showed only minor symptoms of any depression at the time of the examination some five months after the relevant time and had not examined or assessed the applicant during or near the relevant time, the psychologist had had to rely entirely on the applicant’s reporting of his symptoms in reaching a diagnosis about his past mental state. The Tribunal did not make a finding about the applicant’s mental state at the time of the report or decision. Rather, the Tribunal had regard to the absence of contemporaneous evidence (other than that of the applicant’s) in finding that it was not prepared to accept the May 2010 diagnosis as “conclusive of the applicant’s suffering a major depressive illness at the time of the breach”. Based on these findings it was not satisfied that the applicant’s mental state constituted exceptional circumstances beyond the applicant’s control which led to a breach of condition 8202. It also considered whether the applicant’s mental state at the time of the breach caused “other factors to have a greater impact than they otherwise would” but found in the absence of contemporaneous information about the applicant’s mental state at that time that it could not be so satisfied.
It has not been established that the Tribunal failed to reach its state of satisfaction in a reasoned fashion in the sense considered by Allsop J in NADH of 2001 or that the opinion it formed could not have been formed on the evidence before it by a rational, logical or reasonable decision-maker (see SZMDS at [122], [130] and [135]). In contrast to the circumstances in NADH of 2001 the Tribunal in this case gave reasons for its decision which were not “bereft” of “rational or reasoned foundation” or “inexplicably selective” of the evidence before it in the sense considered by Allsop J in NADH of 2001 at [136].
The Tribunal did not doubt the accuracy of the psychologist’s diagnosis insofar as it was based on the symptoms reported by the applicant. There was no obligation on the Tribunal to consider other medical evidence, or to question the competence of the psychologist or to find the applicant lacking in credibility to make findings as to its lack of satisfaction that the psychologist’s report was conclusive of the applicant suffering a “Major Depressive Episode” at the time of the breach or that the applicant’s mental state constituted exceptional circumstances beyond his control which led to a breach of condition 8202.
In relation to any suggestion that the Tribunal ought to have made an adverse credibility finding about the applicant, what was said by North and Lander JJ in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 is in point. In that case a Federal Magistrate had found that the Tribunal committed a jurisdictional error by giving little weight to a particular item of evidence consisting of a baptismal certificate. One of the arguments on appeal was that such an approach was not open to the Tribunal because it had not first decided that the visa applicant who presented the certificate was a liar. However, as North and Lander JJ stated at [24]:
The weight to be given to the baptismal certificate was a matter for the RRT. The RRT was not precluded from giving the baptismal certificate little weight because it had not first decided that the first respondent was a liar. Indeed, in our opinion, the RRT should not be encouraged to make findings of that kind…It is enough if the RRT is not persuaded that the claims which have been made out for the RRT to say so. It is not a precondition to the consideration of the weight to be given to any particular evidence that the RRT find that the particular applicant is a liar.
Similarly in this case it cannot be said that the Tribunal had to find that the applicant was a liar or not credible before it could rationally or reasonably come to the conclusion that it did in relation to the conclusiveness of or weight to be given to the psychologist’s report.
More generally, the weight to be given to the psychologist’s report (given that it was based solely on the applicant’s own account of events five months before the examination and report) was a matter for the Tribunal (Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24; [1986] HCA 40 at 41 – 42 per Mason J and Eshetu at 44 per Gleeson CJ and McHugh J and at 184 per Callinan J). It has not been established that it was illogical or irrational for the Tribunal to rely on the lack of contemporaneous evidence as a reason for not being persuaded that the applicant was suffering a major depressive illness at the time of the breach. The fact that the Tribunal accepted the existence of stressors affecting the applicant identified by the psychologist and that the applicant was said to be experiencing minor symptoms of depression at the time of the examination by the psychologist does not establish illogicality or irrationality constituting jurisdictional error (see Maan v Minister for Immigration and Citizenship and Another (2009) 179 FCR 581; [2009] FCAFC 150 at [51] – [52]). The Tribunal made its finding as to its state of satisfaction in a reasoned manner, albeit reasonable minds may differ about its conclusion. The “Major Depressive Episode” claimed by the applicant involved a large number of alleged symptoms at the time of the breach, the majority of which according to the psychologist were not present at the time of the May 2010 consultation. In the absence of contemporaneous evidence or of any evidence other than the applicant’s that in late 2009 he was suffering from the symptoms he described to the psychologist, there was a rational basis on the limited evidence before the Tribunal for it not to be persuaded that the report was conclusive evidence that the applicant was suffering from a major depressive illness at the time of the breach.
As pointed out in SZMDS at [130] (and also see Minister for Immigration and Citizenship v SZOCT and Another (2010) 189 FCR 577; [2010] FCAFC 159 at [20] and [64]), illogicality or irrationality requires a clear case. This is not such a case. Whether the Tribunal accepted that a major depressive episode had occurred at the relevant time was a matter for the Tribunal. It has not been established that the Tribunal decision as to its satisfaction was so unreasonable that no reasonable decision-maker could properly have arrived at it or that it was otherwise manifestly irrational and illogical or not based on findings of fact supported on logical grounds. As reasonable minds may differ about the Tribunal’s conclusion, it cannot be said to be illogical or irrational in the sense considered in SZMDS at [84] – [86] per Heydon J and at [131] – [135] per Crennan and Bell JJ.
Procedural Fairness – Reasonable Apprehension of Bias
The second ground in the application is that:
The Tribunal failed to accord the applicant procedural fairness in that it is reasonable to apprehend bias on the part of the Tribunal in its treatment of the psychologist’s diagnosis in coming to its state of satisfaction of the absence of exceptional circumstances for the applicant’s breach of the visa condition.
The particulars to ground one were also relied on in support of ground two.
In written submissions counsel for the applicant referred to the fact that the interrelationship of arbitrary findings and apprehended bias was considered by Allsop J in NADH of 2001, beginning with the remark (at [12]) that the absence of arbitrary, unreasoned findings did not “exhaust the enquiry as to whether there was apprehended bias”. Allsop J also pointed out in relation to apprehended bias that the necessary apprehension was only of a “possibility” of “predisposition of the Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question” (at [20]).
In SZIEW v Minister for Immigration and Citizenship and Another (2008) 101 ALD 295; [2008] FCA 522 MadgwickJ referred with approval to these remarks in relation to the interrelationship of arbitrary findings and apprehended bias and suggested that the content of the latter concept had been “comprehensively and, with respect, compellingly considered by Allsop J” with whom Moore and Tamberlin JJ had agreed in NADH of 2001 (at [23]).
The applicant submitted that in the circumstances of the case it was reasonable for a fair-minded and informed person to apprehend the possibility of a predisposition on the part of the Tribunal against the diagnosis of Major Depressive Episode by the clinical psychologist, having regard to the lack of findings on matters such as those referred to in relation to ground one, in particular the lack of any findings in relation to the credibility of the applicant and also having regard to the matters which the Tribunal did accept about the applicant continuing to experience what the Tribunal described as minor symptoms of depression.
However, as set out above, it has not been established that the Tribunal’s decision was irrational or illogical in a manner constituting jurisdictional error. The Tribunal gave reasons for its finding as to its lack of satisfaction. It was not obliged to make findings on the matters posited by the applicant as of potential relevance. It did not simply rely on divination or intuition. There is otherwise no basis for the claim of apprehended bias assessed from the perspective of the properly informed reasonable observer (see SZNPG at [18] and [37] and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 at [27] – [29]). It has not been established that the Tribunal’s fact finding was conducted in a manner that could be described as “in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way” in the sense considered by Allsop J in NADH of 2001 at [115]. Nor is it apparent that the Tribunal’s approach to the evidence before it “lacked an appreciation of the need to weigh all the material” (ibid).
The Tribunal was entitled to make the finding that it did as to its state of satisfaction on the evidence before it. Having regard to the seriousness of an allegation of bias, apprehended or otherwise, it has not been established that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question to be decided. This ground is not made out.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 15 June 2011
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