FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration and Citizenship [2013] FCA 178 Citation: Singh v Minister for Immigration and Citizenship [2013] FCA 178 Appeal from: Harjinder Singh v Minister for Immigration and Citizenship & Anor [2012] FMCA 1073 Parties: HARJINDER SINGH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: NSD 2055 of 2012 Judge: COLLIER J Date of judgment: 6 March 2013 Legislation: Education Services for Overseas Students Act 2000 (Cth) s 20 Cases cited: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 cited Date of hearing: 5 March 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 29 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr D Godwin Solicitor for the First Respondent: DLA Piper Counsel for the Second Respondent: The Second Respondent did not appear IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2055 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: HARJINDER SINGH Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: COLLIER J DATE OF ORDER: 6 MARCH 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2055 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: HARJINDER SINGH Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: COLLIER J DATE: 6 MARCH 2013 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court delivered on 20 November 2012, dismissing an application for judicial review of a decision of the Migration Review Tribunal ("the Tribunal"). 2 The appellant is a citizen of India who was granted a Student (Temporary) Class TU Subclass 572 Vocational Education and Training Sector visa on 1 April 2009. On 17 January 2011 a delegate of the Minister cancelled the appellant's visa. 3 On 25 January 2011, the appellant sought a review of the delegate's decision with the Tribunal. The Tribunal affirmed the decision of the delegate on 4 July 2011. Background 4 On 10 August 2010 the appellant's education provider, Apex Institute of Education (Apex), sent to the appellant a section 20 notice under the Education Services for Overseas Students Act 2000 (Cth) ("ESOS Act") alleging that the appellant was not achieving satisfactory course attendance. On 27 August 2010, the appellant was notified that a delegate of the Minister was considering cancelling his visa. The appellant subsequently responded to the Department of Immigration on 29 August 2010. He claimed that the non-compliance was due to the sudden death of his grandmother, which he claimed had left him in "deep shock" for about a month and half and prevented him from attending classes. 5 The Tribunal found that the situation of the appellant was not exceptional because many overseas students in Australia experienced the death of a close relative in their home country. Further the Tribunal noted that there was no medical evidence in support of the appellant's claims that he was unable to attend classes. The Tribunal stated that it had very little documentary evidence for it to make an informed decision as to the actual effect of the grandmother's death on the appellant. Based on the evidence provided, the Tribunal was not satisfied that the appellant's non-compliance with the visa conditions requiring attendance was due to exceptional circumstances beyond his control. The proceeding before the Federal Magistrate 6 Before the Federal Magistrate both Mr Singh and the Minister were legally represented. 7 In his amended application, the appellant relied upon the following lengthy and detailed grounds: 1. The Tribunal misinterpreted the applicable law and or misapplied the applicable law to the facts. Particulars: i) The Tribunal erroneously found that it had jurisdiction to affirm a decision that the Applicant's visa be cancelled when no decision was made by the delegate of the First Respondent to cancel the Applicant's visa (a) The decision record of the delegate of the First Respondent shows that the decision made was to cancel a Class TU visa held by a person called Mr Ahmed, not a visa held by the Applicant. ii) The Tribunal misinterpreted the law and or misapplied the law in relation to whether the purported non-compliance of Condition 8202 by the Applicant 'was not due to exceptional circumstances beyond the visa holder's control', as required by subregulation 2.43(2)(b)(ii)(B) of the Migration Regulations 1994 ('the regulations) by: (a) Erroneously comparing the impact on the Applicant of the death of his grandmother with the impact on other overseas students of the illness/and or death of a close relative, instead of comparing the Applicant's circumstances with those of a student who had not suffered the loss of a close relative. (b) Erroneously proceeding on the basis that because... (...the illness/or death of a close relative in the visa holder's home country) have been experienced by many overseas students studying in Australia, the death of the Applicant's grandmother was not an exceptional circumstance, when there is no such restriction when determining whether exceptional circumstances existed. (c) Reaching a state of satisfaction that the Applicant's non-compliance with Condition 8202 was not due to exceptional circumstances beyond his control, when it was unable to make, in its opinion, an informed judgment as to the actual effect on the Applicant of the death of the Applicant's grandmother. (d) Reversing the onus contained in r2.43(2)(b)(ii) by requiring the Applicant that he satisfy the Tribunal that the non-compliance was not due to exceptional circumstance beyond his control. 2. The Tribunal failed to consider the Applicant's claims as made to it Particulars: i) The Tribunal failed to consider the Applicant's claim as put to it, being that his grandmother had died suddenly. (a) The Tribunal erroneously proceeded on the basis that the Applicant's claim was that his grandmother had been suffering from illness which led to her death while he was in Australia. 3. The decision was made in the absence of probative evidence. Particulars: i) There was no probative evidence before the Tribunal that (...the illness/or death of a close relative in the visa holder's home country) have been experienced by many overseas students studying in Australia to ground its finding that the Applicant's non-compliance was not due to exceptional circumstances beyond his control. 4. There is an apprehension of bias Particulars i) There is an apprehension of bias in relation to the making of the decision, such that the fair–minded and informed observer would reasonably apprehend that the Tribunal in the present case might not have brought an impartial mind to bear on the decision. (a) There is an apprehension of bias because of the Tribunal's views concerning 'exceptional circumstances' and the death of the a close relative of an overseas student in Australia, as is shown, for example, by the following comments made by the Tribunal at the hearing: Q48 A.... Q49 Is that I need to look at whether your experience can, can be considered to be exceptional. I mean certainly it's beyond your control whether your grandmother dies, I accept that, but--- A.... Q50 So I've done a lot of similar cases to yours, I've now been a Member here for some years and I've done a lot of student visa cancellations and I have to say that the death of a, of a, of a close relative to whom the student is attached to is not unusual. I mean, I see, I see, I handle a lot of cases where the applicant has been, has had a close relative die and some have been able to cope with it, some haven't. But it would seem to me if you're coming overseas for, to do a course for a number of years then sadly it's not unusual for a grandparent for example to pass away during that period. So in that sense it's not really, it seems to me anyway not really an exceptional circumstance. I mean it's, that's not to say it's not a difficult circumstance as it clearly is for a whole lot of students but it's really, I mean we, sadly grandparents, great-grandparents get old and they do die but we still have to continue, we still have to get on with our lives and, and try and cope as best we can. So the thing that, the question mark in my mind is whether the death of your grandmother is, is, is, is really an exceptional circumstance--- A Yes Q50 --- or simply something that's very sad and that will have an effect but, but which you must continue to cope with. Now, I understand that you are alone in Australia and a long way from home and that as well can be very difficult, but that's in the nature of, of undertaking, you know, overseas study and again it's something obviously that you need to cope with if you're going to successfully complete, you know, your course. So I don't know whether you have any comments on that, on those observations? (b) There is an apprehension of bias because the Tribunal required documentary evidence to make an informed judgement as to the actual effect that the death of the Applicant's grandmother had on the Applicant. 5. The Tribunal's decision was unreasonable, irrational or illogical Particulars: i) The Tribunal's decision was unreasonable, irrational or illogical because, despite being unable to make, in its opinion, an informed judgment as to the actual effect on the Applicant of the death of the Applicant's grandmother, the Tribunal nonetheless formed a positive state of satisfaction that the Applicant's non-compliance with Condition 8202 was not due to exceptional circumstances beyond his control. Decision of the Federal Magistrate 8 His Honour's judgment contained lengthy reasons responsive to the numerous grounds of review before the Court. 9 In relation to ground 1(i), his Honour noted that the references to "Mr Ahmed" in the delegate's decision occur on pages 3 and 4 of the decision. His Honour noted that the initial identification of the visa holder on the first page of the delegate's decision and references in the first half of the decision clearly identified Mr Singh as the subject of the decision. His Honour held that the references to "Mr Ahmed" in the second half of the decision appeared to be in the nature of a typographical error. His Honour reviewed the case law and appeared to come to the conclusion that the decision of the Tribunal "cured" the defect in the delegate's decision. Accordingly, his Honour found that the claim that there was "no decision at all" could not be sustained and the Tribunal had the jurisdiction to make the decision. 10 In relation to grounds 1(ii)(a) and (b), his Honour found that the Tribunal was required to deal with the case raised by the material before it. His Honour noted that the appellant was represented before the Tribunal by a migration agent. His Honour observed that a competent migration agent should have been aware that the appellant required documentary evidence to substantiate his claim that Sikh culture stigmatises professional help for emotional problems. Although there may be rare and exceptional cases where the ready availability of information critical to the review can enliven a duty to enquire, in this case there was no expert medical evidence available because Mr Singh had not sought assistance. In any event, his Honour found that, as a general proposition, the Tribunal had no general duty to enquire, was limited to dealing with the evidence before it, and did in fact deal with that evidence. 11 Accordingly, his Honour found that these grounds were not made out. 12 Ground 1(ii)(c) was not pressed before the Federal Magistrate. His Honour found that ground 1(ii)(d) was not made out, holding that there was no error in the Tribunal relying on the failure of the appellant to seek professional help as the basis of its decision for it being satisfied that the non-compliance was not due to an exceptional circumstance. 13 In considering ground 2, his Honour observed that a factual mistake does not establish jurisdictional error unless it is a jurisdictional fact or otherwise an error of law. His Honour noted the distinction between overlooking a single item of evidence and overlooking an element of the appellant's claim, and further that a factual mistake assumes legal significance if the fact is of such fundamental importance to establish a breakdown in the fact finding process so that the fact becomes a jurisdictional fact (at [74]). 14 His Honour observed that the Tribunal made a number of references to the sudden death of Mr Singh's grandmother. His Honour held that the claim made by the appellant that his grandmother died suddenly was accepted by the Tribunal and concluded that the reference to "illness and subsequent death" was an error in the drafting of the Tribunal's reasons. For these reasons, his Honour found that ground 2 was not substantiated. 15 With regard to ground 3, his Honour accepted that the basis for the finding that the circumstances of the death of a close relative is not unusual was evidenced in the transcript at Question 50 where the Tribunal member stated that he had done "a lot" of similar cases. At [84] his Honour observed: The objection raised by [Counsel for Mr Singh] is that there is no probative evidence of this situation referred to in the Decision Record. I believe that the correct characterisation of this comment by the Tribunal Member that this information is part of his prior accumulated knowledge and the circumstance is being raised as no more than an observation that the issue has been before the Tribunal on previous occasions and has generally been addressed in a particular way. Significantly this is a discretionary power to be exercised by the Member dependent on the particular facts of each application and is not bound by precedent. Consequently, the statement by the Member that he has dealt with other cases of similar circumstances can be no more than an observation that matters of this nature are not unknown to the Tribunal. 16 The Federal Magistrate found that on a fair reading of the transcript of the Tribunal hearing it was clear that the Tribunal was indicating the approach that it intended to follow, and there was no reason why the member's own accumulated knowledge should be excluded. Accordingly, his Honour was satisfied that this ground could not be substantiated. 17 In relation to ground 4 his Honour considered Mr Singh's claim of apprehended bias in the Tribunal, which claim was based upon the Tribunal's alleged predetermined view of whether the death of a close relative constituted an "exceptional case", and the Tribunal's insistence on documentary evidence to demonstrate the actual effect that the death of his grandmother had on Mr Singh. However, his Honour considered that there may have been a number of reasons for the Tribunal member's familiarity with circumstances such as those of Mr Singh, including: the Tribunal member had prior experience dealing with similar matters; a Tribunal member is entitled to use accumulated knowledge of particular sets of circumstances; and the Tribunal member informed the appellant and his representative that "exceptional circumstances" has been considered in a number of cases and the death of a close relative does not necessarily amount to an exceptional circumstance. 18 In his Honour's view, such factors did not amount to a predetermined view of the outcome of Mr Singh's case. 19 Further, while the Tribunal member may have formed a preliminary view of whether "exceptional circumstances" had been established because of the lack of evidence produced by Mr Singh, nonetheless the facts demonstrate that the Tribunal: invited Mr Singh to appear before it to give evidence and produce argument; encouraged Mr Singh to supplement his material, including by evidence of the Sikh cultural philosophy which may have hampered Mr Singh from seeking medical assistance to treat any emotional upset; was willing to defer the decision until the week after the hearing to allow the research and preparation of written submissions by Mr Singh. 20 In relation to ground 5, his Honour noted that the appellant's representative failed to recognise the Tribunal's indication to him of a major deficiency in Mr Singh's case – namely the lack of evidence and the offers to the appellant to rectify that problem. His Honour found that no such evidence was provided. Similarly, the migration agent failed to provide evidence of the statement he made at the hearing in relation to the stigma in Sikh culture that was attached to seeking professional help for emotional and psychological problems. As a result, his Honour was not convinced that the Tribunal's reasons were unreasonable, irrational or illogical. The appeal proceeding 21 The appellant's notice of appeal sets out the following grounds: 1. The Tribunal misinterpreted the applicable law and or misapplied the applicable law and the Federal Magistrate court couldn't satisfy me with decision for the given facts on the decision given. 22 Mr Singh appeared in person at the hearing of his appeal. The Minister was legally represented. 23 Mr Singh's sole ground of appeal is unparticularised, although effectively it is a statement of dissatisfaction with the decision of the Federal Magistrate. 24 The Court on judicial review cannot engage in review of the merits of the appellant's claims: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. That the appellant in this case does not agree with the decision of the Federal Magistrate is not a basis upon which his Honour's decision can be overturned. 25 In the circumstances of this case I consider that the Federal Magistrate has both thoroughly and thoughtfully considered the appellant's grounds of review. I can find no fault in his Honour's reasoning. 26 At the hearing Mr Singh provided copies of what appeared to be medical certificates concerning his father in India, and a death certificate. Mr Singh submitted that he had suffered depression following the death of his grandmother. 27 Students at the level of tertiary education are commonly in their late teens or early twenties. It is not in my view controversial to note that it is a stage of life when the death of a grandparent is not an uncommon event. I suggest that the unremarkable nature of such an event in relation to an elderly person would not minimise the shock or distress which may be experienced by the student. Such shock or distress would in my view be likely to be compounded for the student by being in a foreign country, possibly without friends or family. One wonders at the inquiries made or pastoral care offered by tertiary educational institutions where foreign students, for unexplained reasons, do not attend classes. 28 The fact remains, however, that this appeal hearing is not in the nature of a merits review: NAHI at [10]. A determination of exceptional circumstances is a finding of fact, for the Tribunal. 29 In my view the appeal should be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 6 March 2013