Zheng v Minister for Immigration and Border Protection

JUDGE: LOGAN J DATE: 25 MAY 2015 PLACE: BRISBANE

REASONS FOR JUDGMENT 1 Mr Zhixiong Zheng (Mr Zheng) is a citizen of the People's Republic of China. He came to Australia on 20 February 2011, entering pursuant to a student (subclass 573) visa granted on 16 December 2010. The authority for the granting of that visa is to be found in the Migration Act 1958 (Cth) (the Act). The visa was subject to a number of conditions, materially including condition 8202. On 19 February 2013 Mr Zheng was issued with a notice of intention to consider cancellation under s 116 of the Act. The basis for the giving of that notice was information received by the Department on 24 January 2013, that the institution at which Mr Zheng was undertaking his studies, the University of Queensland, had certified that he was not achieving satisfactory course progress in relation to his nominated course of study (a post-graduate Master's Degree in Food Studies). 2 That he was so certified was a breach of condition 8202 of his visa. That such a notice was in prospect ought not to have been unexpected by Mr Zheng, as in the preceding month, he had already received a notice in relation to the prospect of that certification and its potential sequel. Be this as it may, in response to the Department's notice of 19 February 2013, and with the assistance of a solicitor and migration agent, Mr Zheng made a submission to a delegate of the Minister, who is the active party and respondent to this appeal. The Migration Review Tribunal (Tribunal) is the other respondent and quite properly has entered a submitting appearance. 3 On 1 March 2013, a delegate of the Minister within the Department decided to cancel Mr Zheng's visa. At the time of that cancellation decision reg 2.43(2)(b) of the Migration Regulations 1994 (Cth) , provided: Subdivision 2.9.2 Cancellation generally 2.43 Grounds for cancellation of visa (Act, s 116) (2) For subsection 116 (3) of the Act, the circumstances in which the Minister must cancel a visa are: … (b) in the case of a Student (Temporary) (Class TU) visa: (i) that the Minister is satisfied that the visa holder has not complied with condition 8104 or 8105 (if the condition applies to the visa); or (ii) that the Minister is satisfied that: (A) the visa holder has not complied with condition 8202; and (B) the non compliance was not due to exceptional circumstances beyond the visa holder's control. 4 Section 116(1)(b) of the Act provided that, subject to, materially, subs (3), the Minister may cancel a visa if he or she is satisfied that its holder has not complied with a condition of the visa. Section 116(3), provided that if the Minister may cancel a visa under subs (1) the Minister must do so if there exists prescribed circumstances in which a visa must be cancelled. One of those prescribed circumstances was that set out at the time of the delegate's decision in reg 2.43(2)(b). 5 The effect of reading s 116(1) subject to the qualification found in s 116(3) is that there was no discretionary power which fell for exercise in this case; rather, this case presents yet another example of the operation of a statute depending upon an anterior matter, namely, satisfaction as to particular circumstances. In the event of such satisfaction, and thus the existence of the anterior matter, there is no occasion for the exercise of a discretion. Instead, the statute operates according to its terms, in this case according to the terms of s 116(3). 6 The Migration Legislation Amendment Regulation 2013 (No. 1) (Select Legislative Instrument (No. 33 of 2013)), made on 14 March 2013 omitted from the regulations paragraph 2.43(2)(b). By the time when the Tribunal came, at the behest of an application for review made by Mr Zheng following the delegate's decision, to decide the review on 14 February 2014, that amendment had come into effect. The Tribunal exercised its jurisdiction on the basis that the amendment had the effect of omitting any material prescribed circumstance such that the question of whether or not to cancel a visa fell for the exercise of a discretionary value judgment pursuant to s 116(1) of the Act, rather than the case being one which required satisfaction as to whether there were materially exceptional circumstances in the particular case. 7 The learned Federal Circuit Court of Australia judge, from whose judgment this appeal lies, saw no error in that particular approach. The parties did not contend that the Tribunal was in error in so approaching the review of the delegate's decision. The 2013 amendment regulation contains a transitional provision in respect of the operation of the schedule 3 amendment, namely, item 1303 in schedule 6 to the regulations. Materially item 1303(2) provides: Schedule 6 - Amendments relating to transitional arrangements 1303 Operation of Schedule 3 (2) The repeal of subparagraph 2.43(2)(b)(ii) by item 2 of Schedule 3 to the Migration Legislation Amendment Regulation 2013 (No. 1) does not apply in relation to a person who: (a) holds a student visa; and (b) was sent: (i) a notice of proposed cancellation of the visa under section 119 of the Act for non compliance with visa condition 8202 before 13 April 2013; or (ii) a notice under section 20 of the Education Services for Overseas Students Act 2000 for non compliance with visa condition 8202 in relation to the visa. 8 It was said in submissions that the effect of this transitional provision was not so as to make the earlier prescription applicable to the review before the Tribunal because, at the time, Mr Zheng was not a person who held a student visa, that visa having earlier been cancelled. That is a possible construction of item 1303(2) in schedule 6 to the 2013 amendment regulations, but that is, with respect, an odd construction in this sense. So to construe the transitional provision yields an earlier class of visa holders, such as Mr Zheng, whose visas have been cancelled and who were sent the notice of proposed cancellation before 13 April 2013 or a notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth), and a class later in time who have been sent one or the other or each of such notices but whose visa has not yet been cancelled. Those persons would still hold a visa and be the recipients of a notice and be subject to the old regime, whereas those earlier in time whose visa had already been cancelled and who had also received one or the other of such notices, or both, would be subject to the new regime. It is for that reason that the construction promoted strikes me as odd. 9 Nonetheless, the outcome of the case on appeal is not to be determined by which of the constructions is correct ie that promoted by the parties or an alternative construction to which I have alluded. In these circumstances it seems to me, as it did to Sackville J in DB Reef Funds Management Limited v Commissioner of Taxation (2005) 218 ALR 144, that it is appropriate to proceed on the basis of the position jointly put by the parties as to the meaning and effect of the transitional provision and thus of the operation of s 116 of the Act (see Australian Communication Exchange Limited v Deputy Commissioner of Taxation (2003) 201 ALR 271 at [41], per McHugh, Gummow, Callinan and Heydon JJ), a case to which Sackville J referred. 10 The result of the review proceedings before the Tribunal was that, on 11 February 2014, the member constituting the Tribunal, albeit in the exercise of a discretion, decided to affirm the Minister's delegate's decision to cancel Mr Zheng's visa. A subsequent application by Mr Zheng to the Federal Circuit Court for the judicial review of the Tribunal's decision was dismissed on 17 February 2015. There are two grounds of appeal, namely: 1. The Federal Circuit Court of Australia erred by failing to find that the review conducted by the Migration Review Tribunal miscarried because it failed to make inquiries (namely, contacting Dr Chen: see para of the Court's reasons). 2. The Federal Circuit Court of Australia erred by failing to find that the Migration Review Tribunal denied the appellant procedure fairness or made a legally unreasonable decision (namely, because the Tribunal told the appellant that he could provide evidence from Dr Chen if he wished to but failed to either adjourn the hearing or provide any other opportunity to allow the appellant to provide that evidence: see para 55 of the Court's reasons). 11 Read fairly, ground 1 of the grounds of appeal engages with a ground of review before the Federal Circuit Court. Ground 2 is not in that category. That being so, such a ground could, in my view, only be advanced by leave of this Court so as to raise an issue not raised in the original jurisdiction. It is important to recall that it is the Federal Circuit Court, not this Court, that exercises an original jurisdiction in migration matters of this kind. Thus, what was said in Coulton v Holcombe (1986) 162 CLR 1 at 7 is just as applicable to this case and to this Court in the exercise of its appellate jurisdiction. Litigants ought not to be encouraged to seek on appeal to raise issues which ought properly to be raised in the exercise of original jurisdiction. 12 That said, it is possible in the interests of justice to permit a new issue to be raised on appeal if it clearly has merit and permitting so to do would occasion no real prejudice to, in this case, the respondent Minister (see Vuax v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158). 13 More recently in MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [101], Jessup J opined that, in addition to these matters, whether to grant leave to raise a fresh issue ought to be dependent upon the existence of an adequate explanation for the failure to raise the issue below. Here, there is no such explanation by affidavit. What there is though is a change in legal representation. Counsel who appeared on the appeal did not appear before the Federal Circuit Court, although Mr Zheng was legally represented in that court. Inferentially, and this was the submission of Mr Zheng, the explanation lies in a fresh mind being brought to bear on the subject. In many cases, an explanation will be nothing more than that, either by virtue of a change in legal representation or, perhaps, by the provision of legal assistance to a litigant who appeared in person before the Federal Circuit Court. In these circumstances, truly, to seek any greater explanation may be an exercise in futility and to insist upon the same render an injustice to an appellant who has a truly arguable fresh ground of appeal. 14 The parties in this case sensibly adopted the position of treating the second ground as if it were a permitted ground of appeal and making submissions and conducting the appeal accordingly. Having heard these submissions made on behalf of the appellant and read the supporting written submissions, as well as considered the like made on behalf of the Minister, this does appear to me to be a case where the interests of justice would best be served by permitting the raising of the fresh point entailed in ground 2. In other words, I am persuaded that the point is arguable. 15 The question then becomes, both as to grounds 1 and 2, whether either or each should succeed. 16 Answering that requires further elaboration in relation to the background facts as found by the Tribunal and of the evidence placed before the Tribunal. Mr Zheng's academic record at the University of Queensland was in evidence. That showed a deterioration in his results as between the second semester of 2011 and the two semesters in 2012. Mr Zheng attributed this to a motor vehicle accident in which he said he had been involved in April 2012. There was no eyewitness account of that accident to corroborate Mr Zheng's claim. He did proffer before the Tribunal photos of the vehicle which he said had been involved in the accident, which vehicle he said belonged to his uncle and of which he said he had the use. There is discernible damage to the rear of the vehicle on the photo in the material before the Tribunal. 17 Mr Zheng also provided statutory declarations from two persons who knew him at the time of the accident, Mr Lin and Mr Gao. Each attested to a noticeable change in his behaviour after April 2012. There was also reference to his spectacles having been noticed to have been damaged. There was no evidence placed before the Tribunal of the reporting of the accident, which, on Mr Zheng's account, was a multi-vehicle "concertina" type accident, to the police. Nor was there any evidence that Mr Zheng had, either immediately or within days of the accident, attended upon a medical practitioner. Indeed, there was no such attendance until after Mr Zheng had received the notices to which I have referred. 18 Mr Zheng attended on a general practitioner, Dr Ip, at some stage after his receipt of those notices. Dr Ip provided a report of 15 February 2013, which was placed before the Tribunal in the material. Dr Ip reported as follows: I certify that the above patient has shown serious symptoms of agoraphobia with which he feared going out to crowded places, which in turn caused anxiety disorder and depression in this patient. After thorough counselling with this patient, I believe the medical condition has a direct connection with his experience of a life-threatening car accident in April 2012, where he was hit from behind and squeezed when his car was pushed to hit a car in front. In my opinion, the medical condition has significantly affected the patient's academic performance and motivation of learning in many ways, including reduced attendance for activities, reduced personal contact, reduced concentration, fear of failure, and insomnia over which the patient has no control. For the genuine medical condition above, I recommend that the patient be given a special consideration without penalty for his academic performance and attendance, should they be unsatisfactory in the period between April 2012 and December 2012 which I believe the effect of the medical condition is most apparent. 19 Mr Zheng's application for review was lodged promptly after the delegate's decision. That the review did not come to be heard until 10 February 2014 was influenced by requests which Mr Zheng's solicitors and migration agents had made of the Tribunal to allow further time for the submission of material. Thus, on 14 March 2013 Mr Zheng's solicitors and migration agents made reference to his doctor, inferentially Dr Ip, having: ... now referred him to a psychologist for further assessment. Mr Zheng has made a time booking and is waiting to see the psychologist. In addition to that, Mr Zheng is planning to request his personal information from his previous university under FOI ... For the extensive time required we wish you could allow at least 6 weeks for us to collect all essential information and documents to a make a full submission. 20 The reference in this letter to a psychologist may well have been in error, or at least anticipated a referral which did not occur. I state that because Mr Zheng was not, in fact, referred to a psychologist but rather to a psychiatrist, Dr Chen. On 22 April 2013 Mr Zheng's solicitors and migration agents again wrote to the Tribunal requesting additional time for the furnishing of submissions because of "the schedule of the psychologist referred by Dr Ip". That letter also refers to Mr Zheng's previous colleague and some friend "who can prove he was seriously troubled by psychological conditions are not available recently". It's said that they would be available in about two to three weeks. 21 The solicitors and migration agents informed the Tribunal that they expected to lodge the resultant submission at about the end of May. The Tribunal acceded to each of these requests. 22 The resultant submission, which was a detailed one, was lodged in the Tribunal at the end of May (see the letter of 30 May 2013 from Mr Zheng's solicitors and migration agents). Included with that submission was a report from Dr Chen, a consultant psychiatrist, who attested to Mr Zheng's attending her practice on 1 May 2013. In her report of that same date she opined: Who appears to experience a depressive mood episode with some functional deterioration since a motor vehicle accident (which was not at his fault) in April 2012. His depressive symptoms appear to have some impact on his performance in his university studies, including the completion the assignments. I have made a follow-up appointment for further assessment and treatment in 2 weeks. 23 The Tribunal conducted a hearing on 10 February 2014 with the assistance of an interpreter fluent in Chinese. In the course of that hearing the following exchange occurred: Member: You also said that Dr Chan could be contacted, your psychiatrist that you're seeing. Applicant: Yes Member: Is Dr Chan aware that there's a hearing today? Interpreter: I did mention to this to Dr Chan. For his personal reasons, perhaps because the hearing is too early, he didn't attend the hearing today. But if you need any information from him, you can call him. We can provide you with his telephone number and address. Member: Have you given Dr Chan any written permission to give information to the tribunal? Applicant: I haven't. Member: What I'll say to you is if there's anything that Dr Chan to tell me that will help me then it's to you to provide that statement from Dr Chan. Interpreter: If there's anything that Dr Chan to tell the tribunal to help them make a decision, then you need to provide that statement from Dr Chan. [sic] The member then addressed the appellant's legal representative, asking if there was anything to which he wished to draw attention or any question that he wished the Tribunal member to put to the applicant. There was then reference by the representative in relation to the question of authority to get permission of Mr Zheng to release medical information from Dr Chen. It was reiterated, as it had been put in an earlier written submission, that this could be authorised but that we, "Cannot force him to come here". The member then said: My point is I can't ring Dr Chen, he wouldn't give me any information if he/she hasn't got a release. Representative: If we give our permission, can you.. Member: That might work. I mean you couldn't just ring a doctor and expect them, over the phone, to give information to whom they don't know. Representative: You know, some people just don't like to get involved in court or tribunal. Member: I under what you, are saying. Representative: Second, I would like to explain that Member seems to have some concerns about my client's credibility because he drives cars to accompany a few travellers, who are friends of his friends. I would like to say he also mentioned his tutor. He said he was forced to go to the lab once in a while. Same thing. My client didn't say he stayed at home all this time. He was sick, but not to the extent that he couldn't move himself. Mental problem can be very complex. This is why we tried very hard to get a statement from Dr Chan. We mentioned in our submission that it has been unsuccessful. We did try. We tried our best to get the information for you. A lot of times my client did not explain very clearly, maybe because of the communication. We confirm that he discussed with us, after receiving a Section 20 notice, he explained why he didn't want to go to uni. So we suggested that he see a doctor. He was aware of the seriousness of the notice. Before that, he might not have been fully aware of the seriousness of the notice. We hope that the tribunal can consider the better evidence was submitted by fax. He was on a treatment program with Dr Chan. If he had no problem with mentality, he wouldn't have had to go so many times. Now he seems to be better. But we are not doctors. Hopefully we can get something from Dr Chan. We can cooperate and we'll give permission to Dr Chan so that the court can contact him personally. Actually Dr Chan said that he would provide information should he be contacted by the court and the court need any information from him. Member: As I said, since Dr Chan hasn't got a written permission. I'm not prepared to ring him. Representative: We can give him the permission. Member: I'm not going to have another hearing for that. That's up to you now to provide evidence from Dr Chan if you wish to. I still have to say to you Mr Zheng. I will consider any evidence you get from Dr Chan. But the problem for me still is she didn't see you until 12 months after the accidence and five months, or four months at least, after the period that I'm interested in. So I have to weigh up anything that she tells me against the timing of it, because I don't know what she's going to write but it seems to me that it's not going to assist me a great deal about the period that I'm most concerned about, which was the events leading up to why you got certified by the University of Queensland and what should happen now. You see what I'm saying there. [sic] 24 Following that exchange the Tribunal was adjourned for about 10 minutes to enable a replacement interpreter to attend. Suffice to say, after the resumption of the Tribunal hearing, there was no further application to call Dr Chen made on behalf of Mr Zheng. As already noted, the Tribunal gave its decision and the reasons for that decision the following day. It is apparent from the Tribunal reasons that the Tribunal did not accept that Mr Zheng suffered from mental health problems which were of such severity that they prevented him from addressing his poor academic progress and avoid being "certified" (reasons paragraph 21). 25 In reaching that conclusion the Tribunal expressly took into account the statutory declarations made by Messrs Gao and Lin, as well as their oral evidence, the medical evidence in the form of the report from Dr Ip, and the further report from Dr Chen. Greatly influential in the Tribunal's assessment was the delay which passed between the alleged accident in April 2012 and the first consultation by Mr Zheng on a medical practitioner (see paragraph 20 of the Tribunal's reasons). 26 It was put in furtherance of the first ground that the circumstances of this case were such that the Tribunal had a duty to make inquiry of Dr Chen. The subject of inquiry, it was submitted, was an obvious one, namely, whether, in the expert opinion of that psychiatrist Mr Zheng's condition (for which he had been treated throughout 2013 by Dr Chen) was of such severity as to explain, having regard to the circumstances observed by Messrs Gao and Lin, the poor academic performance noted in his student transcript of results at the University of Queensland. It was further put that there was, at least inferentially, an application made on behalf of Mr Zheng for an adjournment on 10 February 2014 in the course of the hearing to allow this to occur, and that the Tribunal acted unreasonably in not permitting an adjournment. 27 Having regard to the passage from the Tribunal hearing which I have quoted, I am prepared to and do accept that the exchange which passed between Mr Zheng's legal representative and the Tribunal member, read in context, did entail an appreciation by the Tribunal that Mr Zheng was desirous of adjourning at least part of the hearing so as to enable evidence to be sought and received from Dr Chen. The Tribunal member does not in her reasons expressly refer to this incident. The passage quoted does disclose that she was of the view that the circumstances of the case were not such as to warrant an adjournment. 28 In these circumstances it may not strictly be correct to class this decision as one where no reasons have been given for a refusal of an adjournment. Rather, there was a procedural ruling made in the course of the hearing, reference to which has not been taken up in the ultimate reasons for decision. 29 The principles at large are not in doubt. The Tribunal's core function is that of review. To class it as an inquisitorial forum is to divert attention from this core function. That is not to say that particular circumstances cannot arise where the Tribunal would not discharge its review function according to law if it did not make an inquiry. As to the core function of the Tribunal being one of review, see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 in the High Court. As to an example where, even accepting that core function, the circumstances of a particular place disclose a failure to make an obvious inquiry concerning a critical fact: see SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113, especially at paragraphs 48 to 50. What is clear is that the Tribunal is not obliged to conduct an inquiry as to whether an applicant's case could be better put: see Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [36] of the judgment of Keane CJ, Emmett J at [49] agreeing. 30 The provision of an explanation by way of specialist medical opinion to provide an explanation as to how a person with what has come to be diagnosed as a depressive condition might not seek treatment for some time but manifest symptoms in the way of poor academic performance or behavioural changes was rather more than a question which had unexpectedly and belatedly emerged in the course of a hearing, and which might readily be answered - or one which might readily be answered by way of an obvious inquiry in respect of a matter of technical importance. Jurisdictional error of the kind promoted is not to be found in the wisdom of hindsight. 31 Quite what Dr Chen might have said had inquiry been made was unknown. It was always open to Mr Zheng by his advisors to seek from the Tribunal a summons requiring Dr Chen's attendance. There was no attempt to seek such a summons. This aside, the subject upon which Dr Chen might have provided opinion evidence was one always able to be anticipated in advance. 32 In the ordinary course of events, it is for an applicant for review to support a desired outcome as best he or she can, both by way of submission and the placement of supporting material before an administrative review tribunal. That is not to say that such a person has a formal onus of proof, only to recognise that reasons of self-interest dictate the provision of one's best case at the time when an opportunity is offered. 33 In this particular case some 11 months had passed between the application for review and the time when the Tribunal ultimately came to hear the case. A submission of some sophistication had been made on 30 May 2013. Even after this, there was ample time to supplement that submission with the benefit of further specialist medical opinion. The Tribunal did not, in my view, transgress its obligation to review by failing to make inquiry of Dr Chen in the circumstances of this particular case. Nor, given those same circumstances, did it commit the jurisdictional error of failing unreasonably to permit an adjournment of the hearing. 34 In summary, Federal Circuit Court found that there was no transgression in relation to the failure on the part of the Tribunal to conduct the inquiry mentioned. I agree with that conclusion. In relation to the question of adjournment, and though the point was developed with particular skill on behalf of Mr Chen, and though in that development I find a basis for permitting the point to be raised, in the result the ground must fail. It follows then that the appeal must be dismissed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.