Yu v Minister for Immigration and Citizenship

[2008] FCA 688

FEDERAL COURT OF AUSTRALIA

Yu v Minister for Immigration and Citizenship [2008] FCA 688

MIGRATION – appeal from Federal Magistrates Court – where Migration Review Tribunal (“the Tribunal”) affirmed the decision to cancel the appellant’s Higher Education Sector visa – where appellant breached a condition of the visa – whether non-compliance was due to “exceptional circumstances” – whether the Federal Magistrate made an erroneous finding - whether the Federal Magistrate entered into a merits review – appeal dismissed

Migration Act 1958 (Cth) s 116
Migration Regulations 1994 Reg. 2.43(2)(b)

SIK HEI ANTHONY YU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
VID 142 OF 2008

TRACEY J
27 JUNE 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 142 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SIK HEI ANTHONY YU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	27 JUNE 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The Migration Review Tribunal be added as a respondent.

2.The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 142 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SIK HEI ANTHONY YU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	27 JUNE 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

1. This is an appeal against a judgment of a Federal Magistrate delivered on 15 February 2008 dismissing an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 5 June 2007 and handed down on 26 June 2007: see Yu v Minister for Immigration and Citizenship [2008] FMCA 474. The Tribunal had affirmed a decision of a delegate of the Department of Immigration and Multicultural Affairs, as it was then known, to cancel the appellant’s Subclass 573 Higher Education Sector visa. The Tribunal was not joined as a respondent but should have been. An order will be made adding the Tribunal as the Second Respondent.

2. The appellant was born in Hong Kong and is a citizen of the United Kingdom.  On 29 September 2005 the Department of Immigration and Citizenship granted the appellant the visa.  On 27 January 2006, the appellant’s university advised the Department that the appellant had completed his course earlier than anticipated, and that he had not been enrolled in any course since December 2005.  The appellant received a “Notice of intention to consider cancellation” and was advised an interview would be held on 6 September 2006.  He was invited to attend and to provide comments.  The appellant attended an interview conducted by a Departmental officer.  The appellant acknowledged that he was not enrolled in a course but stated that he was required to appear in court in several court cases relating to an incident where he was robbed and assaulted and that he was required to undertake an anger management course by court order due to an incident of violence against his girlfriend.   

3. The officer did not consider that these events constituted exceptional circumstances pursuant to Regulation 2.43(2)(b) of the Migration Regulations 1994 (“the Regulations”) and found that the appellant had breached condition 8202(2)(a). The officer decided on 6 September 2006 to cancel the visa. The appellant was notified of the decision and his review rights. On 22 September 2006, the appellant applied to the Tribunal for review of the decision.

   MIGRATION REVIEW TRIBUNAL

4. The issue before the Tribunal was whether the delegate properly cancelled the appellant’s visa under s 116(1)(b) and s 116(3) of the Migration Act 1958 (Cth) (“the Act”) and Regulation 2.43(2)(b)(ii) on the basis that the appellant had breached condition 8202(2)(a) because he was not enrolled in a registered course.

5. The Tribunal was satisfied that the appellant had not complied with the conditions of the visa because he was not enrolled in a registered course.  While the Tribunal accepted that the appellant was required to undertake an anger management course, and give evidence in various court cases, it found that these circumstances did not affect his enrolment as they did not prevent him from enrolling in a registered course.  The Tribunal therefore found that these circumstances did not constitute “exceptional circumstances” that would explain his non-compliance, and it affirmed the decision to cancel the appellant’s visa.

   FEDERAL MAGISTRATES COURT

6. On 28 August 2007 the appellant filed an application seeking judicial review of the Tribunal’s decision in the Federal Magistrates Court.  In his amended application the appellant claimed that the Tribunal decision was made without jurisdiction or was affected by error of law because it:

   ·wrongly construed or misapplied Regulation 2.43(2)(b)(ii)(B) or asked itself the wrong question by not asking whether the appellant’s non-compliance was not due to exceptional circumstances beyond his control;

   ·wrongly construed the definition of “exceptional circumstances” under Regulation 2.43(2)(b) or misapplied that regulation to the facts in determining that the appellant’s non-compliance was not due to exceptional circumstances beyond his control; and

   ·failed properly to consider that he was suffering post traumatic stress disorder (“PTSD”), as outlined in a psychological report which he provided to the Tribunal.

7. The Federal Magistrate found that the Tribunal applied the correct test under the relevant legislation.  His Honour noted that the term “exceptional circumstances” is an ordinary term without specific definitions that the Tribunal could have misapplied. 

8. After examining the contents of the psychological report, his Honour found that the Tribunal’s failure to refer to the report in detail did not establish jurisdictional error.  The Federal Magistrate noted that the report did not indicate that the appellant was suffering PTSD at the time of the report, and did not link the disorder with his failure to study.  It was further noted that the appellant’s case was not that the trauma was the reason for his failure to study.  His Honour found that the Tribunal’s findings regarding the absence of exceptional circumstances were open to it on the material before it.

9. His Honour also noted that there was no requirement on the Tribunal to make further enquiries in relation to the report to determine whether there was a link between the appellant’s psychological state and his failure to study, particularly where this was not put to the Tribunal.

10. His Honour could find no jurisdictional error and dismissed the application.  His Honour awarded costs of $5,000 to the respondent.  It was noted that the appellant made no submission in relation to costs, and the amount was the scale fee.

    APPEAL TO THIS COURT

11. A notice of appeal to this Court was filed on 7 March 2008.  The notice of appeal was prepared by the appellant himself.  Prior to the hearing of the trial Mr Hans Bokelund of counsel accepted a referral under Order 80 of the Federal Court Rules to represent the appellant on this appeal.  The Court is most grateful to him for having accepted this referral.  Counsel sought leave at the hearing to substitute an amended notice of appeal for the notice which had originally been filed.  Counsel for the Minister did not oppose this course and leave was granted.

12. The amended notice of appeal raised two grounds. It was alleged that the Federal Magistrate had erred in law by making the erroneous finding or reaching the mistaken conclusion that the appellant “had made a conscious decision not to study” and that the learned Federal Magistrate had entered into the merits of the appellant’s application by assessing or weighing the evidence contained in a psychological report. An alternative ground that the learned Magistrate had applied an incorrect principle of law in dealing with the question of “exceptional circumstances” under reg 2.43 of the Regulations was not pressed in argument beyond the contention that the Federal Magistrate should have found that the Tribunal had failed to have regard to all relevant circumstances and, in particular, those disclosed in the psychologist’s report.

13. Both grounds arise out of the reasons given by the learned Federal Magistrate for rejecting the third ground which had been argued before him in support of the appellant’s application for judicial review of the Tribunal’s decision.  This ground was that the Tribunal had failed properly to consider a psychological report on the appellant.  The report was dated 25 August 2006 and had been provided to the Tribunal.  The report had been prepared to provide supporting evidence for a claim by the appellant for an award, by the Victorian Crimes Compensation Tribunal, of damages for injuries sustained by the appellant in the course of an assault which had occurred in January 2005.  The psychologist had reported that the appellant was “suffering from many symptoms of PTSD, and associated moderate depression and anxiety.”  She noted that the appellant was, at the time of her report, “still trying to seek employment.”  She hoped that he would be “able to obtain employment soon”.  She expressed the opinion that, although she had only seen the appellant for the first time on 6 May 2006, he had experienced symptoms of PTSD “for over a year.”

14. In rejecting the complaint that the Tribunal had erred in dealing with the psychological report the Federal Magistrate commenced by noting that the Tribunal had acknowledged receipt of the report.  He also noted that the report, in terms, did not state that the appellant was suffering PTSD on 25 August 2006 when the report was written.  The more significant reason for rejecting the claim was, however, that the report did not express any opinion on the impact of PTSD on the appellant’s capacity to study.  His Honour said that:

    “12The 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 (sic) 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. 

    13This is perhaps unsurprising, given that the effect of his evidence before the tribunal appeared 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.

    14That 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.” (Emphasis added).

15. There was a good deal of evidence before the Tribunal to support the Federal Magistrate’s observation that the appellant had given evidence to the Tribunal that he had made a “conscious decision not to study, but decided to pursue employment instead.”  The appellant had told the Tribunal that:

    ·After completing his undergraduate course in December 2005 he had inquired about undertaking further study towards a degree of Master of Information Technology at the Central Queensland University.  He had applied to enrol in the course and had been accepted.

    ·He had, nonetheless decided not to accept the offer.  This was because the course was due to commence in March 2006 and he wished to return home to Hong Kong for a period which included part of that month.

    ·He had been supported by his parents whilst pursuing his undergraduate degree.  His father had since died and his mother had retired.  This meant that he could not look to them any longer for financial support.  It would, therefore, be necessary for him to work to support himself during a Masters course.

    ·He acknowledged that he needed another type of visa to allow him to work and to secure sponsorship.

    ·He wanted to “half work and half study.”

    ·Having made the decision not to undertake the Masters course he had asked the department about other visas but the response was confusing.

16. In my view this evidence amply supported the Federal Magistrate’s observation.  The appellant could have commenced a Masters course in March 2006 and chose not to do so.  He had made a conscious choice not to study for the reasons which he explained to the Tribunal.  The observation is accurate even though the appellant told the Tribunal that, at some unspecified time in the future, he wished to study half time and work half time.  More importantly, however, is the fact that it was an observation by the Magistrate. It was not a reason for rejecting the appellant’s complaint about the Tribunal’s treatment of the psychological report. The critical point was that the report did not contain an opinion that the appellant was disabled, by PTSD, from pursuing his studies. Indeed, it would have been strange had such an opinion been expressed given that the appellant had studied for the whole of the 2005 academic year successfully and finished his course of study six months early despite having been seriously assaulted in January 2005. Whilst the Tribunal was bound to consider relevant material placed before it by the appellant, the psychological report did not provide evidence of his incapacity to pursue his academic studies. The report was prepared for a different purpose and dealt with his capacity to obtain employment rather than his capacity to study. Its contents could not, therefore, assist him in establishing “exceptional circumstances” for the purposes of reg 2.43. It is also notable that the appellant did not suggest to the Tribunal that his PTSD was the cause of his failure to enrol for tertiary studies. He relied rather on the facts that he was required to attend to give evidence at criminal proceedings brought against those who had assaulted him and that he was required to attend an anger management course as a result of his conduct towards his former girlfriend.

17. For the same reasons I do not consider that the Federal Magistrate engaged in any form of merits review when dealing with the psychological report.  He did not assess or weigh the report.  He merely subjected it to such examination as was necessary to establish that it did not contain any material evidence which had been overlooked or ignored by the Tribunal.

18. The appeal should be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:        27 June 2008

Counsel for the Appellant:	Mr H Bokeland
Counsel for the Respondent:	Ms S Moore
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 June 2008
Date of Judgment:	27 June 2008