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Mental Health and Migration Act 1958: a Bangladesh perspective (part 1) - Salomonn Migration & Advocacy

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Mental Health and Migration Act 1958: a Bangladesh perspective (part 1)

September 14, 2023 Raymond Salomonn Comments Off

Recently, I made a representation of behalf of an international student from Bangladesh, who applied for an academic leave of absence (LoA) on account of his mental health. My client, a university student, arrived Australia only two months ago and it was going to be his first semester. However, soon after arriving, he became depressed. Client’s initial application for academic leave of absence was refused on the basis that the University does not grant academic leave of absence to international students in their first semester, unless it was for ‘exceptional’ reasons due to ‘compassionate’ and compelling’ circumstances beyond control. Further, an officer of the International Student section of that university, while refusing the academic leave of absence, asked that the Student departs Australia and seek medical treatment in his home country instead, while the academic leave of absence is being considered. That officer had no regard to the mental health condition of the Student, namely acute depression and anxiety, nor the supporting medical documents provided to substantiate his claims.

In this article, I will examine the legality of the manner in which the student’s application for academic leave of absence was handled by the University under various Australian legislations.

Only Minister has the power to grant or refuse a visa:

All subclass 500 student visas are granted upon satisfaction that applicants have met all statutory criterion for the grant of the visa. Under the Migration Act,[1] only the Minister designate had the power to grant or refuse a visa[2]. Consequently, only the Minister has the power to cancel such a visa, for instance, see s116(1)(fa) of the Act[3].

The definition of a ‘visa’ is stipulated in section 29 of the Act.[4] Under section 29, the Minister may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia; and / or, remain in Australia.[5] Once a visa is granted, pursuant to section 67(4) of the Act,[6] the Minister has no power to vary or revoke the decision after a visa grant is recorded. It should be noted that neither the Migration Act, nor the Regulation,[7] nor the ESOS,[8] nor the National Code 2018,[9] empowers an education provider to impose conditions on a student visa.

Therefore, it is unlawful for education providers to dictate whether international students can or not remain in Australia while they hold a valid visa.

National Code 2018:

Standard 9.2 of the National Code 2018[10] states,

“A registered provider may defer or suspend the enrolment of a student if it believes there are compassionate or compelling circumstances”.

The National Code 2018 Factsheets[11] provide the following advice to education providers on assessing requests under Standard 9.2:

An international student’s visa would not be cancelled if the deferral is for compassionate or compelling reasons. If a registered provider defers or suspends a student’s studies for compassionate or compelling reasons, the registered provider should ensure the student visa holder has a valid CoE in PRISMS with a start date that reflects the student’s intended date of return to studies. There is no maximum period for a deferral under compassionate or compelling reasons, but the deferral must be assessed in accordance with the registered providers’ policies and procedures.

Registered providers are able to defer or suspend the enrolment of an overseas student if there are compassionate or compelling circumstances. Registered providers must assess the deferral of commencement of study or suspension of study for the overseas student in accordance with the registered provider’s documented procedures for assessing and approving changes to enrolment.

 ‘Compassionate or compelling’ circumstances are generally those beyond the control of the overseas student and which have an impact upon the overseas student’s course progress or wellbeing. These could include, but are not limited to:

        •  serious illness or injury, where a medical certificate states that the overseas student was unable to attend classes;
        • bereavement of close family members such as parents or grandparents (where possible a death certificate should be provided);
        • major political upheaval or natural disaster in the home country requiring emergency travel and this has impacted on the overseas student’s studies;
        • a traumatic experience, which could include:
          • involvement in, or witnessing of a serious accident; or
          • witnessing or being the victim of a serious crime, and this has impacted on the overseas student (these cases should be supported by police or psychologists’ reports);
        •  where the registered provider was unable to offer a pre-requisite unit, or the overseas student has failed a prerequisite unit and therefore faces a shortage of relevant units for which they are eligible to enrol.

These are only some examples of what may be considered compassionate or compelling circumstances.[12]

Identical guidance is stipulated in the policy documents issued under the Migration Act 1958.[13]

Compassionate” or “Compelling” circumstances:

First, it must be noted how statutory language is constructed. Clause 9.2 of the National Code 2018 requires that the education provider believes that there are compassionate or compelling circumstances.[14] This means, that either of “compassionate” or “compelling” circumstances would be sufficient to meet the legal threshold.

Second, the terms ‘compelling circumstances’ and ‘compassionate circumstances’ are not defined in the National Code The Macquarie Dictionary relevantly defines ‘compassionate’ to mean ‘having or showing compassion’. [15] ‘Compassion’ is defined as ‘a feeling of sorrow or pity for the sufferings or misfortunes of another; sympathy’.[16]

‘Compel’ is defined as ‘to force or drive, especially to a course of action’.[17] The term compelling implies that the reasons (for the absence) should be forceful to the person concerned.[18]

In this context, the Federal Court decision in the matter of Lorenzo Paduano v MIMIA[19] (Lorenzo case) bears leading authority. In Lorenzo, His Honour Crennan J held that the term ‘compelling’ in its wide, ordinary meaning means ‘forceful’, and forceful reasons for an absence  may involve physical, legal or moral necessity or may, by reason of their forcefulness, be convincing.[20] The reasons need not be confined to those incorporating an involuntary element, involving circumstances beyond a person’s control, involving physical or legal necessity, or circumstances.[21] The expression ‘compelling reasons for the absence’ refers to the applicant’s absence and it is the applicant who must have been ‘compelled’ by the reasons for his or her absence, and [the Tribunal] is entitled to make a judgment as to whether the reasons for the absence are forceful, and therefore convincing.[22]

The Lorenzo case has been relied on by the AAT[23] in other cases in interpreting the meaning of ‘compelling’ circumstances, for example, the matters of Chai,[24] Ghanadreh[25] and Lim[26].

The term, ‘compassionate’, when interpreted within the meaning given in Bains,[27] attracts compassion from any ordinary person. Mental health is not to be taken lightly and proper care should be given to the sufferers. For example, the Royal Commission into Victoria’s Mental Health System[28] found that,

“(m)any people with lived experience of mental illness or psychological distress, families, carers and supporters have shared with the Commission the difference compassionate responses can make:[29] Compassion goes a long way. It helps you get a foot in the door—more than a foot”.[30]

Exceptional circumstances – the Bangladesh case:

My client was a citizen of Bangladesh. Hence I relevantly made reference to the latest DFAT Country Information Report on Bangladesh 2022[31] (the “Report”). This report was prepared by the Department of Foreign Affairs and Trade (DFAT) under Ministerial Direction Number 84 of 24 June 2019, issued under s 499 of the Migration Act 1958, and is therefore binding, albeit being prepared for protection status determination purposes.

This Report, gives a graphic detail of the health care system in Bangladesh. Some sections from the relevant parts of the report are copied below:

“Healthcare quality in Bangladesh is generally poor …”[32]

“There are few services for people with disabilities, whether children or adults. Those services that do exist are often not physically accessible, for example because they do not have facilities for wheelchair users.”[33]

“People with disability experience stigma, which may in practice limit access to services such as health care and education because people are reluctant to seek it out.”[34]

“Mental health facilities are inadequate to meet demand. Funding is low and there are few mental health workers. A Bangladeshi Government national survey on Mental Health was conducted in 2019. It found that about 17 per cent of survey respondents had a mental health disorder, with depression and anxiety most common. The vast majority of those respondents were not receiving treatment for their illness. More recent studies found that the prevalence of mental health disorders increased during the COVID-19 pandemic.”[35]

“According to a study published in the BJPsych International journal in August 2021, there are only 260 psychiatrists in Bangladesh. The same study found that basic psychiatric medications are generally unavailable. Sources told DFAT that there is a lack of dedicated mental health facilities. There are telephone helplines and private counselling available, but counselling services are cost-prohibitive to most people.”[36]

“Sources told DFAT that ‘stress and depression’ are seen as a ‘rich person’s problem’, and that the few services that are available are mostly targeted to these issues, where doctors have identified a market. Other mental health conditions, such as psychotic illnesses, are harder to treat in practice and there are fewer facilities and professionals available.”[37]

“There is a strong stigma associated with mental health disorders in Bangladesh that can lead to ostracism from families and communities. Stigma can be characterised by disdain or aversion of people with mental illness, or a sense of disgrace felt by the patient. Sources told DFAT that some people consider the mentally unwell as ‘mad’ or ‘cursed’.”[38]  

“DFAT is aware of some reports of ‘shackling’, chaining up, locking or hiding away family members because of the shame caused by their mental illness, …”[39]

If this Report is taken into account, Bangladesh nationals deported from Australia unlikely to receive medical treatment for mental health issues in their country of citizenship. In addition to that, based on the DFAT Report,[40] it is reasonable to conclude that more harm will be inflicted upon such individuals, than cure.

International law aspect

There is no doubt that forced removals of Bangladesh nationals with mental health issues from the Commonwealth will be treated as gross violation of human rights. The first international instrument to address in this regard is International Covenant of Civil and Political Rights (ICCPR).[41]

Forced removal of non-citizens with mental health issues to Bangladesh, is a breach of their most basic fundamental human rights, defined in ICCPR, i.e., right to life.[42]

Such removals also likely to offend Torture Convention[43] and considered as cruel,[44] inhumane[45] or degrading[46] Derogation from these provisions under international laws are impermissible and such prohibition is absolute.[47]

[1] Migration Act 1958 (Cth).

[2] Ibid, s 65.

[3] Ibid 1, s 116(1)(fa).

[4] Ibid 1, s 29.

[5] Ibid, s 29(1).

[6] Ibid 1, s 67(4).

[7] Migration Regulation 1994 (Cth).

[8] Education Services for Overseas Students Act 2000 (Cth).

[9] National Code of Practice for Providers of Education and Training to Overseas Students 2018.

[10] Ibid, 9.2.

[11] Ibid 10, Factsheet.

[12] Standard 9: Deferring, suspending, or cancelling the overseas, student’s enrolment, Ibid 10.

[13] Authority to approve deferral/suspension of studies under the ESOS Act, PAM3, Migration Act, General visa cancellation powers (s109, s116, s128, 134B and s140), Visa cancellation instructions.

[14] Ibid.

[15] Bains (Migration) [2021] AATA 1026, 38.

[16] Ibid.

[17] Ibid 30.

[18] Lorenzo Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2005] FCA 211, 37, 41.

[19] Lorenzo Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2005] FCA 211.

[20] Ibid 33.

[21] Ibid.

[22] Ibid.

[23] Administrative Appeals Tribunal.

[24] Chai (Migration) [2023] AATA 1747, 22.

[25] Ghanadreh (Migration) [2021] AATA 2706.

[26] Lim (Migration) [2021] AATA 5575.

[27] Ibid 30.

[28] Royal Commission into Victoria’s Mental Health System, Final Report – Vol 1 (V Pp 2018/22 no 202) [2021] VicRoyalC 2.

[29] Ibid, Foreword, xi.

[30] Ibid, citing “Witness Statement of ‘Michael Silva’ (pseudonym), 22 June 2020, para. 42”.

[31] DFAT Country Information Report Bangladesh, DFAT, 30 November 2022.

[32] Ibid, 2.15.

[33] Ibid 31, 2.17.

[34] Ibid 31, 2.19.

[35] Ibid 31, 2.20.

[36] Ibid 31, 2.21.

[37] Ibid 31, 2.22.

[38] Ibid 31, 2.23.

[39] Ibid 31, 2.24.

[40] Ibid 31, 2.15-2.24.

[41] International Covenant of Civil and Political Rights, United Nations General Assembly resolution 2200A (XXI), 16 December 1966.

[42] Ibid, Art 6(1).

[43] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations General Assembly resolution 39/46, 10 December 1984.

[44] Ibid, Art 16.

[45] Ibid.

[46] Ibid.

[47] Ibid 41, Art 7.