Yu v Minister for Immigration
[2008] FMCA 474
•15 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YU v MINISTER FOR IMMIGRATION | [2008] FMCA 474 |
| MIGRATION – Review of Migration Review Tribunal – visa – student visa – matters to be considered. |
| Migration Regulations 1994, reg.2.43 |
| Ashraf v Minister for Immigration and Anor [2007] FMCA 448 |
| Applicant: | SIK HEI ANTHONY YU |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File number: | MLG 1173 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 15 February 2008 |
| Date of last submission: | 15 February 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 15 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr H.P. Bokelund |
| Counsel for the Respondent: | Ms S.E. Moore |
| Solicitor for the Respondent: | Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1173 of 2007
| SIK HEI ANTHONY YU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(As revised from transcript)
This is an application for judicial review of a decision of the Migration Review Tribunal made on 5 June 2007. The applicant had been in Australia on a student visa, undertaking studies at the Central Queensland University. In January 2005, he was the victim of an assault and robbery, which crimes were the subject of subsequent court proceedings, through which it is said that he will be required to give evidence. He also had an earlier incident where he, as a result of an offence of violence against his girlfriend, was ordered to undertake an anger management course.
In January 2005, he was still undertaking his degree studies at Central Queensland University, studying a Bachelor of Information Technology. He completed his Bachelor of Information Technology in December 2005. He in fact completed that course early as he had a visa for a planned completion date in July 2006. It is recorded by the tribunal that he felt he was able to remain in Australia until July 2006 because of the visa time, although he was not then enrolled in a course. In February 2006, he was provided an offer by the Central Queensland University to undertake a course of a Masters of Information Technology. That course was due to commence in March 2006.
He did not accept that offer, nor take up any further studies. Nowhere in the material in the court book is there any statement that he intended to take up that or another course in the foreseeable future. The highest that the evidence on this reaches is a comment by the tribunal that the review applicant said that he,
Understands he needs to continue his study, but he needs to attend court to give evidence as a witness.
It is set out in the decision that he had made a decision not to do the masters course and had been asking the department about other visas that he may be able to obtain to enable him to stay in Australia.
The relevant sections of the tribunal decision recounting these circumstances are on pages 4 to 8 as follows:
Central Queensland University advised the Department that the review applicant had completed his course, and done so earlier than anticipated, and he was not enrolled in a course since December 2005.
At interview the review applicant agreed he had been advised by CQU that as he had completed his course early, a Bachelor of Information Technology, he must either study a new course or depart from Australia. He also agreed he had been told by the Department he had until the end of March 2006 to leave Australia. He departed Australia in January 2006 but returned in March 2006 and states that he had to return to Australia to appear in court over an armed robbery and assault. He stated to the Department that he had been in other court cases and was subject to a court order to attend anger management classes. The delegate found that his claims of court requirements of attending an anger management course, did not constitute exceptional circumstances.
There are a number of documents on file relating to the right of review by the review applicant, and papers from court hearings and copies of court orders, as well as a psychological report on the review applicant. There was the matter of whether the Tribunal had jurisdiction in this case. It was finally agreed to accept the application for review. There is also a substantial amount of documentation relating to the application for a fee waiver.
…
Asked what other courses he may have enrolled in after completing his course, the review applicant said he had enquired about doing the Master of Information Technology course at CQU, and had indeed applied. He showed a document that indicated he had been given admission into this course but he decided not to accept the invitation and not to enrol for the course. The letter shows an offer dated 3 February 2006 for the Master of Information Technology course, CF74, given by CQU, due to commence in March 2006.
The review applicant said he did not accept the offer as he had not been back home (Hong Kong), since 2003, and so he needed to go back and he went for six weeks. He said his father had died in 2003, and he had returned for his funeral, but he needed to go to his grave and pay respects. He also discussed with his mother his future, and mindful that she had now retired, so he did not have her source of income to assist him. He should now work. He also wanted permanent residence in Australia, and realised that the course he had completed did not have sufficient points. He also noted that a Masters course would cost more and so he would need to work.
He said he needed to find another type of visa to allow him to work and to secure sponsorship, and he wanted to half work and half study. He said before he returned to Hong Kong he went to the Department to inform them and to ask advice, as he had finished his course early, he was told he could go to Hong Kong and return. He also showed the Department all the documents relating to his court appearances. He also sought advice from the Department about other options form a visa he could apply for.
The review applicant said that he understands he needs to continue his study, but he needs to attend court to give evidence as a witness. He has been told by the police prosecuting the case that he has to attend and had no choice. He said he made the decision not to do the Master’s course, and asked the Department about his other visas, and as to whether he could apply for a criminal justice visa, to be able to stay to give evidence at the court hearings. He also spoke to the police and they said they had not yet caught one of the persons charged and so could not say when he may be required. He sought an alternative type of visa so he could stay and he said he was given contradictory information by various people in the Department. It was confusing for him to get this different advice.
He said he went to the student compliance section of the Department, and told them he had to do the anger management course, and so he could not just leave the country. Someone suggested a visitor visa, but he needed to support himself. He was called in for an interview last September, and he wanted to have a job in Australia. However he felt he would be banned from returning for three years if his visa was cancelled and he wanted to fight that. He needed to attend the court to give evidence. He tried to get the police prosecutor to assist him but after initially saying he would, he proved unwilling to help or to write a letter for him. They also contradicted what they had earlier offered to him. He was told he had to attend court. He said he had a further letter about the matter from the Office of Public Prosecution yesterday.
The tribunal concluded as follows:
The review applicant’s claim as to exceptional circumstances which existed beyond his control, were two fold.
One was the requirement to undertake an anger management course by the court and the second was he being required to act as a witness in several course cases relating to an incident in which he was robbed and assaulted.
The review applicant has admitted the breach in that he was not enrolled in a registered court. The Tribunal finds that the review applicant did breach condition 8202(a).
The Tribunal accepts that the review applicant had to undertake his anger management course, and also to give evidence in the cases arising from an unpleasant incident. However, these circumstances did not affect his enrolment. He could have enrolled in a course regardless of these events, these events did not stop him from enrolling in a registered course. The Tribunal finds that the circumstances outlined by the review applicant do not constitute exceptional circumstances that would affect his non-compliance.
For the reasons given above, the Tribunal is satisfied that the applicant has not complied with condition 8202 and the ground for cancellation in s.116(1)(b) therefore exists. The Tribunal is further satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. In accordance with s.116(3) of the Act such circumstances are prescribed circumstances in which the visa must be cancelled.
The psychological report referred to by the tribunal as being among the material that it had was a report by Ms Chow-Fairhall, dated 25 August 2006. Ms Fairhall appears to have undertaken the report on the applicant's psychological state at that time as a result of the incidents. Her prognosis and recommendations were in the following terms:
Prognosis
Mr. Yu’s recovery may be slow, as he practically has no support here in Australia, and there are many other stressors that hinder his recovery.
It is believed that with further support to assist Mr. Yu to manage his self-defeating thoughts and anxiety, and that hopefully he is able to obtain employment soon, which would increase his confidence and dispel the culturally biased belief and superstition of him now “destined for bad luck”.
Recommendations
At present, Mr. Yu would benefit from ongoing counselling. He had suffered from psychological distress, symptoms of Post Traumatic Stress Disorder for over a year.
It is respectfully recommended that at the completion of the further 3 counselling sessions, and following review, Mr. Yu be granted for another 3 counselling sessions.
The applicant seeks judicial review on three grounds as follows:
1. The decision of the Migration Review Tribunal (“the Tribunal”) was made without jurisdiction or is affected by error of law.
PARTICULARS
(a)The Tribunal wrongly construed Regulation 2.43(2)(B)(ii)(B) or alternatively misapplied and/or asked itself the wrong question by not asking itself whether the Applicant’s non-compliance was not due to exceptional circumstances beyond his control.
(b)The Tribunal wrongly construed the definition of “exceptional circumstances” under regulation 2.43 of the Migration Regulations 1994 or alternatively misapplied that regulation to the facts of this case in determining whether the Applicant’s non compliance was not due to exceptional circumstances beyond his control.
(c)The Tribunal failed to properly consider the Confidential Psychological Report dated 25 August 2006;
(i) to infer that the applicant was suffering from Post Traumatic Stress Disorder at the relevant time, as exceptional circumstances beyond his control.
Ground A
It is said in ground (a) that the tribunal misconstrued reg.2.43 in misapplying the regulation or asking itself the wrong question. Reference was made to a previous decision of mine, the matter of Ashraf v Minister for Immigration and Anor [2007] FMCA 448, which deals with a situation where the tribunal had applied the wrong test, creating an onus on the part of an applicant and appeared to apply guidelines relating to a different part of the legislative scheme. In this case, it is clear from the penultimate paragraph of the tribunal's reasoning that they did in fact apply the correct test under the relevant regulations and legislation. It does not appear to me that this ground has been made out.
Ground B
It is said that the tribunal wrongly construed the definition of exceptional circumstances. The term is an ordinary term; it does not have specific definitions that the tribunal have misapplied. It is not said that they took into account some irrelevant factor, but it is argued that they failed to take into account the report of the psychologist and failed to undertake further inquiries. These later matters are better dealt under ground (c). In the circumstances of this case, it does not appear to me that the decision shows that the tribunal wrongly construed the meaning of "exceptional circumstances".
Ground C
The primary point made in ground (c) was that the tribunal failed to consider the psychological report and failed to infer that the applicant was suffering from post-traumatic stress disorder at the relevant time. Firstly, it must be noted that the tribunal was aware of the psychological report as it was referred to earlier in the session. Secondly, it is important to note that the report did not say that he was in fact suffering a post-traumatic stress disorder at the date of the report, August 2006, but rather that,
He had suffered from a psychological distress from the symptoms of post-traumatic stress disorder for over a year.
The report recommended three counselling sessions to follow and his prognosis was that it was hopeful that he would be able to obtain employment soon. It would be different to conclude that the tribunal ought to have inferred that this meant that come January and February of the previous year he had necessarily been unable to study. In light of the fact that he had clearly completed his studies a significant period after he had suffered the assault. More significantly, the report does not address the question of the impact of the psychological distress and symptoms of post-traumatic stress disorder upon his capacity to study.
This is perhaps unsurprising, given that the effect of his evidence before the tribunal appears to be that he had made a conscious decision not to study, but decided to pursue employment instead. In the circumstances, it does not appear to me to be established that the failure to refer to the psychological report in more detail shows a jurisdictional error on the part of the tribunal. Indeed, even if it were established that the applicant was suffering from post-traumatic stress disorder at the relevant time, the applicant still confronts a fundamental difficulty with his case in that he must show facts or circumstances before the tribunal, which would mean that the tribunal were not satisfied that his failure to enrol was not due to exceptional circumstances.
That is there must be something on the material to indicate some form of causal link between the post-traumatic stress disorder and his failure to study. The contrary was, it seems, his case before the tribunal; that he had made a decision not to study and pursued other activities in light of the knowledge that he would need to be studying (or at least intending to be studying) in order to have a student visa. This material was before the tribunal. It appears to me that it was open on this material for the tribunal to make the findings that they did relating to the exceptional circumstances point.
It is further put that the material of the psychologist was such as to require the tribunal to undertake further investigations or inquiries. It is a rare case indeed that has circumstances such as to mean that the tribunal is required to undertake further inquiries under the Act rather than acting upon the material before them. In a case where it was not put to the tribunal that the failure to study was as a result of the psychological state of the applicant or the events that were relied upon, it does not appear to me that there could be any warrant for saying that the tribunal ought to make further inquiries in order to establish or consider the possibility of some causal link.
In these circumstances, I am not satisfied that this ground is made out and therefore dismiss the current application before the court.
[Further argument ensued]
The applicant makes no submissions on the question of costs, the respondent seeks the sum of $5,000. In this matter, the respondent has been successful. Costs usually follow the event and there is nothing in the material to indicate that a different result ought to follow here. The amount sought is the scale fee prescribed under the Federal Magistrates' Court scale. In the circumstances, it is appropriate that the minister have his costs fixed at $5,000. I order that the application be dismissed and that the applicant pay the respondent's costs fixed at $5,000.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Robin Smith
Date: 3 April 2008