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Bachu v Minister for Immigration & Anor [2011] FMCA 318 (5 May 2011)

Last Updated: 16 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BACHU v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – review of Migration Review Tribunal (“Tribunal”) decision – visa – student visa – breach of visa condition – whether breach caused by exceptional circumstances beyond visa applicant’s control – challenge to Tribunal’s findings of fact.


Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant:
MOHAMMAD SHAKEEL BACHU

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
SYG 2816 of 2010

Judgment of:
Cameron FM

Hearing date:
5 May 2011

Date of Last Submission:
5 May 2011

Delivered at:
Sydney

Delivered on:
5 May 2011

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:
Sparke Helmore

ORDERS

(1) The application be dismissed.
(2) The applicant pay the first respondent’s costs fixed in the amount of $2,900.00.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2816 of 2010

MOHAMMAD SHAKEEL BACHU

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent


MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. The applicant, who is a citizen of Bangladesh, was granted a Subclass 573 Higher Education Sector visa on 16 August 2009. On 2 July 2010 a delegate of the first respondent (“Minister”) cancelled the applicant’s visa pursuant to s.116 of the Migration Act 1958 (“Act”) on the basis that he had breached visa condition 8202 by not achieving satisfactory course attendance. The applicant sought review of that decision with the Migration Review Tribunal (“Tribunal”) but was unsuccessful. He now seeks judicial review of the Tribunal’s decision.
  2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
  3. For the reasons which follow, the application will be dismissed.

Relevant law

  1. Condition 8202 is found in sch.8 to the Migration Regulations 1994 (“Regulations”) and relevantly provides:
...
  1. The consequences of breaching condition 8202 are set out in s.116 of the Act which provides:

...

(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
  1. Regulation 2.43 sets out the prescribed circumstances referred to in s.116(3) and relevantly provides:
  2. The combined effect of s.116 and reg.2.43(2)(b)(ii) is that if the Minister is satisfied that a visa holder has not complied with condition 8202, and that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control, he must cancel the visa in question.

Background facts

  1. On 25 May 2010 the applicant’s education provider, the University of New South Wales (“UNSW”), certified the applicant as not achieving satisfactory course attendance in relation to his enrolled course of study, “Foundation Year Certificate (Standard)”. On 26 May 2010 the applicant was issued with a Notice of Intention to Consider Cancellation of his visa and on 2 July 2010 his visa was cancelled.
  2. The applicant sought review of that decision with the Tribunal and subsequently attended a Tribunal hearing on 20 October 2010. At the commencement of that hearing he provided, amongst other things:
    1. a letter asking the Tribunal for his visa back;
    2. a receipt and medical prescription from Dr Khan, psychiatrist, dated 15 October 2010; and
    1. a letter from a Dr Salem dated 13 October 2010.
  3. At the hearing the applicant claimed that his unsatisfactory course attendance was due to exceptional circumstances beyond his control. He claimed that he had had trouble adjusting to life in Australia and felt lonely and became depressed. He claimed that he started taking drugs and drinking alcohol and smoked marijuana all day. He claimed that he started getting flashbacks of “the war” and could not leave the house.
  4. The applicant claimed that he started visiting Dr Salem in March or April 2010. He claimed that Dr Salem referred him to a psychiatrist in June and July 2010 but he did not go. He visited a psychiatrist, Dr Khan, for the first time on 15 October 2010 and received a prescription which he had not filled at the time of the Tribunal hearing.
  5. The applicant agreed that he had received warning letters from UNSW in February and March 2010 in relation to his attendance. He also attended an interview on 23 March 2010 and subsequently entered into an agreement with UNSW to, amongst other things, attend all his classes. He claimed that he did not tell UNSW his problems or use its counselling service because he was scared about his marijuana use and was concerned that he would get into more trouble.
  6. He claimed that his family were from Bangladesh although they lived in Kuwait. He claimed that he experienced flashbacks when he was on drugs and that during the Second Gulf War there were military officers and sirens all over Kuwait. He had not been involved in the violence but when he was on drugs he could hear the sirens ringing in his ears.
  7. On 2 November 2010, following the hearing, the Tribunal received a letter from the applicant enclosing a report from Dr Khan dated 21 October 2010.

Tribunal’s findings and reasons

  1. The Tribunal found that the applicant had not complied with condition 8202(3)(b). Further, it was not satisfied that the applicant’s breach of condition 8202(3)(b) was due to exceptional circumstances beyond his control, noting that:
    1. the difficulties he experienced in adjusting to life in Australia were routinely encountered by other international students and were the consequence of his decision to study abroad;
    2. his decision to use drugs and consume alcohol was made voluntarily and with the knowledge that it was a condition of his visa that he maintain a minimum of 80% attendance;
    1. he was aware by February 2010 at the latest (having been issued with a warning letter from UNSW) of the possible consequences of his unsatisfactory course attendance. In March 2010, following receipt of a second warning letter, he entered into an agreement with UNSW to attend every class. Despite these factors his attendance continued to decline;
    1. from 12 March to 14 May 2010 the applicant was able to attend more than half his classes, notwithstanding his claim that he could not leave the house;
    2. there were several options available to the applicant which would have helped him address his problem with drugs and alcohol. However, it was only five days before the hearing that he saw a psychiatrist;
    3. the Tribunal questioned the veracity of the applicant’s claim to have had flashbacks of the Iraq-Kuwait war noting that:
      1. the First Gulf War commenced before the applicant was born and ended before his family moved to Kuwait. He was four months old and living in Sri Lanka at the time the war ended. It was, therefore, highly improbable that he would have had any exposure to or memory of that war;
      2. according to country information, the Second Gulf War was fought in Iraq not in Kuwait;
      3. the applicant gave evidence that, although he was not involved in the Second Gulf War or in any related violence, there was a military presence in Kuwait which he had not previously seen and sirens were located all over Kuwait. However, the evidence of his experiences was not consistent with the statement in Dr Salem’s letter that the applicant “suffered profound depression relating to personal crisis stemming from severe psychological trauma caused by the Gulf War while resident in Kuwait”;
    4. in his letter dated 13 October, Dr Salem stated that the applicant was “under the care of a psychiatrist”. However, according to his own evidence, the applicant did not consult Dr Khan until 15 October 2010. Given the Tribunal’s concerns about the applicant’s credibility, and in light of the inconsistencies between the history recounted in Dr Salem’s letter and the applicant’s evidence, the Tribunal found that the letter was unreliable and accorded it no weight;
    5. the Tribunal placed little weight on Dr Khan’s report noting that:
      1. the applicant claimed that he had stopped smoking illegal drugs in July 2010, had enrolled in a course at Macquarie University and that “everything is good now.” This was inconsistent with Dr Khan’s diagnosis that he was suffering from major depression;
      1. Dr Khan’s diagnosis was based on one consultation and on a history provided to him by the applicant; and
      2. it had concerns about the applicant’s motivation in consulting Dr Khan. He gave evidence that Dr Salem had referred him to a psychiatrist in June and July 2010 but he saw Dr Khan only five days before the Tribunal hearing on 20 October 2010. In addition, he obtained a prescription from Dr Khan but he did not fill it and instead used it as evidence in his case before the Tribunal.
  2. The Tribunal was not satisfied that the applicant’s non-compliance with condition 8202 of his visa was due to exceptional circumstances beyond his control. It therefore affirmed the decision of the delegate to cancel his subclass 573 visa.

Proceedings in this Court

  1. The grounds of the application commencing these proceedings were pleaded as follows:
2. My reasons were good enough to prove I was depressed.

Grounds 1 and 2

  1. Both of the grounds raised by the applicant in his application to this Court challenge the Tribunal’s conclusion concerning whether there were exceptional circumstances beyond his control which caused his failure to comply with the relevant condition of his visa, condition 8202. He makes this challenge by arguing, in relation to his claim to have suffered depression, that the Tribunal should have looked at his case in a different way and should have found that he was depressed.
  2. The allegations in the application invite the Court to review the Tribunal’s process of fact finding and the facts which it did find as a result of that process. However, the Court is not empowered to do this except in exceptional circumstances and such circumstances do not exist in this case. For instance, the Tribunal’s decision to place little weight on Dr Khan’s report and the doctor’s diagnosis of major depression was one reasonably open to it on the evidence and for the reasons set out it its decision. Similarly, the according of no weight to the opinion which Dr Salem expressed in his letter of 13 October 2010 was reasonable on the evidence, given that the facts on which it was stated to be based were inconsistent with the applicant’s own evidence to the Tribunal.

Ground 3

  1. At the hearing in these proceedings the applicant also submitted that his depression was caused by his drug taking which, in turn, was caused by the fact that other students were participating in this aspect of the student lifestyle and he found the lifestyle seductive. However, he conceded that he had not told the Tribunal that it was his circumstance as a student, or this particular environment, which caused him to embark on a course of conduct which led to the depression which he claimed. Nevertheless, the Tribunal did turn its mind to whether the applicant’s drug taking, and also his alcohol consumption, were conduct which amounted to exceptional circumstance beyond his control and concluded, as it was reasonably entitled to on the evidence, that they were not.

Conclusion

  1. The Tribunal’s conclusions on the matters raised by the applicant, namely whether he suffered depression as he claimed and whether what he described as the cause of that depression amounted to exceptional circumstances beyond his control, were ones which were reasonably open to it on the evidence. A s such, they are not matters which provide a basis on which the Tribunal’s decision may be set aside.
  2. As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM


Associate:


Date: 13 May 2011

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