BHATTA v Minister for Immigration

[2011] FMCA 971

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BHATTA v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 971

MIGRATION – Cancellation of subclass TU-572 Vocational Education and Training Sector visa (student visa) – No reviewable error – Application dismissed.

Migration Act 1958 (Cth), ss.116, 359A, 360, 424, 425
Migration Regulations 1994 (Cth) reg 2.43
Migration Amendment Regulations 2007 (No.5) (Cth)

AZAAD v Minister for Immigration & Citizenship [2010] FCAFC 156
Chen v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 142 FCR 257
Hatcher v Cohn [2004] FCA 1548
Karmaker v Minister for Immigration & Citizenship [2011] FMCA 595
Khant v Minister for Immigration & Citizenship & Anor [2009] FCA 1247
Maan v Minister for Immigration & Citizenship & Anor (2009) 179 FCR 581
Minister for Immigration & Citizenship v SZJSS (2010) 273 ALR 122
Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489
Minister for Immigration & Citizenship v SZLFX & Anor (2009) 238 CLR 507
Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138
MZXKH v Minister for Immigration & Citizenship [2007] FCA 663
MZYFH v Minister for Immigration & Citizenship [2010] FCA 559
Pradhan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 91
R v Kelly (Edward) [2000] 1 QB 198
Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZMNP v Minister for Immigration & Citizenship [2009] FCA 596
SZMTJ v Minister for Immigration & Citizenship(No.2) [2009] FCA 486
SZNKO v Minister for Immigration & Citizenship [2010] FCA 297
Wang v Minister for Immigration & Citizenship [2007] FCA 488
Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 918
The expanding role of process in judicial review (2008) 15 AJAL 100

Applicant: ASHIM BHATTA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2689 of 2010

Judgment of: Lloyd-Jones FM

Hearing date: 15 April 2011

Delivered at: Sydney

Delivered on: 8 December 2011

REPRESENTATION

Counsel for the Applicant: Mr J. R. Young

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the Respondents: Ms L. Clegg

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs, of and incidental to, the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2689 of 2010

ASHIM BHATTA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In accordance with the Court Orders made on 8 February 2011, the solicitor for the First Respondent was required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”).  On the date of the hearing, the Court Book was marked Exhibit “A”.

2. At the First Court Date directions hearing, the Applicant was granted leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material.  The Applicant was also required to file and serve a short written outline of submissions and a list of authorities 14 days before the hearing.  This order has been complied with.

Background

1. This is an application under the Migration Act 1958 (Cth) (the “Act”) seeking constitutional writ relief in respect of a decision of the Migration Review Tribunal (the “Tribunal”) affirming the decision of a delegate of the Minister for Immigration (“the Minister”) to cancel the applicant’s subclass TU-572 Vocational Education and Training Sector visa (the “visa”).

2. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties.  I have not made further direct attribution as this would make the summary unwieldy.  This information is extracted from the Court Book and each item contains a Court Book reference for that material.  

3. The applicant is a citizen of Nepal.  On 8 May 2007 the applicant was granted a student visa (“first student visa”).  He entered Australia as a holder of that visa on 30 May 2007.  On 3 September 2008, the applicant was granted the visa that is the subject of these proceedings (CB 86 at [23]).

4. On 27 July 2010 the Department of Immigration and Citizenship (“the Department”) issued a Notice of Intention to Consider Cancellation (“NOICC”) of the visa (CB 1).  The NOICC indicated that the Department had information that the applicant had not been enrolled in a registered course since 10 November 2009 in contravention of Condition 8202(2) that the applicant be so enrolled.

5. The NOICC sought the applicant’s comments and included a copy of the Ministerial Direction which applies to the making of decisions concerned with cancellation of a student visa for non-compliance (CB 1 – 8).

6. The applicant replied to the NOICC on 5 August 2010.  He states that he had verbally requested the College to take some time off but his request had been ignored.  The applicant stated that in October 2009 his parents informed him that his brother had been critically ill and that he had been in hospital for more than a month (CB 86 at [24]). The applicant replied to the NOICC by referring to a number of personal problems which caused him to experience “immense stress, anxiety and disorient[ation]”.  The applicant listed those contributing  problems as follows:

   ·    the illness and hospitalisation of his brother in Nepal;

   ·    the break-down of his relationship with his partner which caused him personal pain and accommodation difficulties;

   ·    not having anyone to help him through the anguish;

   ·    a loss of self-confidence and hope which developed into depression; and

   ·    applying too late for course enrolment in February 2010. 

   In February 2010 the applicant states that he finally ‘dragged’ himself to the College but he was informed that he was late for enrolment and was told to come back the following term (CB 86 at [24]). He states that he was also unhappy with the diploma course at the College.

   
   

   He states that he has now learned to cope with the pain and deal with his problems and has sought professional help.  He further indicated that he had been offered a Bachelor of Accounting course at Holmes College which commenced in August 2010.  He indicated that his parents were concerned for his future and had invested their life savings in his education.  The applicant enclosed a copy of his offer of enrolment from Holmes College with his reply to the NOICC (CB 86 at [24]). The applicant indicated that he was now focused and optimistic and pleaded for an opportunity to continue his education in Australia (CB 13).

The delegate’s decision

1. On 24 August 2010 the delegate made the decision to cancel the applicant’s visa (CB 21 – 29). The delegate found that the matters referred to by the applicant did not place him in a situation beyond his control.  The delegate noted that the applicant did not attempt to access Student Services at his educational institution and made not request to defer his studies on compassionate grounds (CB 27.7).  

The Tribunal decision

1. On 1 September 2010 the applicant applied to the Tribunal for a review of the delegate’s decision (CB 31). On 6 October 2010 the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting his comments on, and response to, the information which the Tribunal considered may be a reason or part of the reason for affirming the decision under review. The Tribunal referred to the Tribunal referred to the fact that the applicant ceased to be enrolled in a registered course on 10 November 2009. It was indicated to the applicant that this was said to be relevant as it may indicate a breach of condition 8202. The Tribunal also invited the applicant, pursuant to s.359 of the Act, to provide information relating to his enrolment, employment and discretionary considerations (CB 87 at [26]).

2. The applicant replied to the Tribunal on 13 October 2010 by stating that he had been late for enrolment as he had suffered from stress, anxiety and he had been disorientated since November 2009 due to a range of personal problems that occurred over this period. He stated that he had never been abroad and had never before lived away from his family before studying in Australia. He states he was 21 when he came to Australia. He indicated to the Tribunal the circumstances illustrated above at [8] and further mentioned that his aunt had died. He attributes these circumstances as causing him to be ‘dragged into depression’ (CB 87 at [27]). He indicated that the circumstances he raised in his NOICC letter and to the delegate (discussed at [8] above) amount to exceptional circumstances beyond his control (CB 87 at [27]).

3. On 10 November 2010 the applicant attended an oral hearing before the Tribunal to give evidence and present arguments (CB 65 – 66). 

   
   

   On 16 November 2010 the Tribunal made a decision affirming the delegate’s decision to cancel the applicant’s visa.  It is the decision of Kira Raif MRT Case Number 1007438 that is the decision presently under review in this Court.

The proceedings

1. On 13 December 2011 the applicant filed an application for an order to show cause in the Federal Magistrates Court.  On 8 April an Amended Application was filed followed by a further Amended Application filed in Court on 15 April 2011.

The Amended Application

1. The applicant pleads the following six grounds of review in the Amended Application:

   Grounds of Application

   1. The Second Respondent made jurisdictional error by failing to give proper, genuine and realistic consideration to the applicant’s evidence such that the decision of the Second Respondent was subject to a constructive failure to review and/or was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

   Particulars

   (a)  The Second Respondent made oxymoronic findings adverse to the applicant’s credibility such as [at 53] “The Tribunal is not satisfied that the applicant had been truthful in his claims concerning his brother’s health and the effect that it has had on him”, yet by the same token [at 54]:  “The Tribunal accepts that he (sic) the applicant may have been upset about his brother’s hospitalisation…”.

   (b) The Second Respondent gave “no weight” to the expert report of Mary Sutton (“the psychologists report”) on the basis that the applicant had solicited the report for the purpose of the proceedings, and deemed the psychologist report “self-serving”. Such conclusions were reached devoid of the fact that the Second Respondent had invited the applicant to provide evidence in response to a notice provided to the applicant pursuant to s395A of the Migration Act 1958 (Cth) on 6 October 2010. In the premises, the psychologists report was considered by the Second Respondent in a capricious; non bona fide manner.

   (c)  The Second Respondent found [at 56] that the psychologists report provided no indication of the results of the independent tests undertaken by the expert Mary Sutton, notwithstanding the Second Respondent having previously noted [at 44] the results of such tests conducted by Mary Sutton, such that the findings of the Second Respondent cannot be logically or rationally reconciled with the evidence.

   (d)  The Second Respondent found [at 59] that the applicant fabricated his claims of depression and anxiety for the purpose of the proceedings, did not accept that the applicant was suffering from depression or anxiety or any other condition and in effect, substituted its own lay opinion as to the applicant’s mental health in favour of the expert findings provided in psychologists’ report in circumstances  where there had been no comprehensive findings of dishonesty by the applicant such the well of credibility had been poisoned beyond redemption, or any finding that Mary Sutton was prepared to make fabricated claims and report dishonest findings as tot the applicant’s mental health in contravention of the experts code of conduct. 

   2.  In the premises, the Second Respondent made jurisdictional error by dealing with evidence in a capricious manner, showing a pre-judgment of issues and creating a reasonable apprehension of bias, and/or making a decision that was manifestly unreasonable.

   3. The Second Respondent made jurisdictional error by making legal error as to the interpretation of “exceptional circumstance” beyond the [applicant’s control] in Regulation 2.43(2)(b)(ii)(B) of the Migration Regulations 1994.

   Particulars

   a. The Second Respondent isolated each individual circumstance and dealt with such circumstance individually with an eye attuned to unexceptionability.

   b.  The Second Respondent treated exceptional circumstance as meaning exceptional events thereby excluding events such as relationship breakdown or death of a  person close to the applicant.

   4.   The decision of the Second Respondent was unreasonable, capricious or arbitrary in that the claim the applicant made was suffering depression and anxiety was treated as false merely because the applicant performed limited employment.

   5.   The decision of the Second Respondent was unreasonable, capricious or arbitrary in that the Second Respondent treated unsuccessful attempts to enrol because enrolment was not then available to the applicant was rejected that his non-compliance at the time he attempted to enrol was not due to exceptional circumstances beyond his control.

   6.   The Second Respondent made jurisdiction error by advising the applicant prior to the invitation to hearing that his visa must remain cancelled if a breach was found unless the Second Respondent found that the breach was not due to exceptional circumstances beyond his control.

The Applicant’ Submissions

1. At the hearing in this Court on 15 April 2011 Mr Young indicated that he no longer wished to press Ground 2 and any other ground in relation to a claim of bias (Transcript, p.2).   By way of clarification Mr Young indicated that the reference to “capricious” is adopted from the decision of Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 and indicated that he did not believe that included the concept of bias. Mr Young indicated that for absolute clarity the submission is that the grounds based upon capriciousness, arbitrariness and unreasonableness do not raise bias and he based that on the decision in SZMDS which goes to the method of reasoning rather than pre-judgment.  He indicated that he was not abandoning those grounds that raise SZMDS type issues but he was abandoning suggestion of bias.

2. Mr Young acknowledges that there was no issue that the applicant had not complied with condition 8202(2)(a) as he had not enrolled between November 2009 and August 2010.  This is accepted as non-compliance with condition 8202(2)(a).  However, cancellation was only mandatory under regulation 2.43 of the Migration Regulations 1994 (Cth). If the Minister was satisfied that “the non-compliance was not due to exceptional circumstances beyond the visa-holder’s control” (Reg. 2.43(2)(b)(ii)(B).

3. On 6 October 2010 the Tribunal sent a letter inviting a response to information and to provide information (CB 43). Mr Young contends that letter pleaded an erroneous statement that if the Tribunal found a breach of condition 8202 the visa must remain cancelled unless the Tribunal found that the breach was not due to exceptional circumstances beyond the applicant’s control. Mr Young argues that this statement is plainly wrong and is not correct. On 13 October 2010, without having corrected the letter of 6 October, the Tribunal issued an invitation to the applicant to appear before it to give evidence and present argument relating to issues in relation to the decision under review. Mr Young submits that the applicant had been misled as to what was required in relation to the issues previously raised by the Tribunal and this was a breach s.360.

4. Mr Young submits that in the “Findings and Reasons” the Tribunal dismissed the applicant’s claims, namely:

   a)Living away from family because international students have to live away from home and that by 2009 the applicant had been in Australia over two years (CB 91 at [49]);

   b)The relationship break-up and the search for new accommodation as “non-exceptional” (CB 91 at [50]);

   c)Unhappiness with course as neither exceptional nor beyond applicant’s control (CB 91 at [51]);

   d)The death of an aunt as non-exceptional (CB 91 at [52]); and

   e)The issues about the applicant’s brother’s illness on one hand stating that he was not satisfied that the applicant was truthful and on the other hand while it accepted news about hospitalisation may have upset the applicant the Tribunal wasn’t clear why it would have had a profound effect (CB 91 at [53] – [54]);

   Mr Young contends that in respect of the items addressed at [49] – [54] the Tribunal adopted an approach of isolating each element of the applicant’s circumstances and then applying a reductio ad absurdum approach to each treated in isolation.  This, it is submitted, is not a permissible approach to “exceptional circumstances beyond the applicant’s control” which is a term of wider operation.  It is how those factors in combination affect the person and set them apart from persons in a comparable situation which determines whether the circumstances in combination are exceptional.  The Tribunal adopted an erroneous test at [50] that if an event is within a category of case which in the wider community is not uncommon, it must be excluded.

5. Mr Young contends that a simple example proves the fallacy of the approach adopted by the Tribunal.  A certainty about life is that it will end.  Many people in the community each day are affected by death.  However, this does not exclude the death of a close relative (either as the only circumstance or in combination with other circumstances) from being exceptional circumstances, particularly if the bereavement reaction is beyond the ordinary.  However, even a usual reaction to, for example, the death of a parent or a child could amount to exceptional circumstances.  However, on the Tribunal’s approach such events are not uncommon.  A fallacy in the Tribunal’s approach lies in reading exceptional circumstances as exceptional events (emphasis added).  The expression “exceptional circumstances” should not be so limited.

6. Mr Young submits that a further error of the Tribunal was in failing to consider the combination of events which affected the applicant.  While at [61] the Tribunal stated that it considered the claim singularly and cumulatively and had regard to the totality of the evidence the treatment of the individual claims from [48] – [54] is inconsistent with this statement.

7. Mr Young contends that the treatment of the claim of depression and anxiety as a result of the combination of events was a decision not based upon logical grounds and was arbitrary, capricious or unreasonable within the requirements of Minister for Immigration & Citizenship v SZMDS (supra). Mental illness and depression are serious health issues. The formula adopted by the Tribunal at [55] is that if a person can work for 18 hours a week as a cook in a café where he stayed in the kitchen, he could not be suffering from depression. While fact finding is exclusively the province of the Tribunal it is not entitled to reject a claim of depression because of the adoption of a self-evident wrong test that a person who can work (even for a short time) is not suffering from depression. The approach of the Tribunal of fit for anything, fit for everything is plainly capricious, arbitrary and unreasonable and is not logical.

1. Mr Young submits that in respect of the psychological report, the giving of this report no weight was hardly well reasoned.  In particular the fact that the report referred to the current condition rather than that since November 2009 hardly makes the report of no weight.  Nor does the Tribunal’s concerns about the accuracy of a part of history given that the conclusions of the therapist were based on testing and observation.  However, even if the report is given no weight, the applicant’s claims of depression remain.  The only basis upon which this was dismissed was that expressed at [55] of the Tribunal’s decision.

2. Mr Young submits that the Tribunal records at [33] that the applicant stated that he saw the college in October 2009 but could not enrol as it was too late.  In February 2010 he was again informed that he could not enrol for a similar reason.  This is addressed by the Tribunal in its findings and reasons at [60] which Mr Young claims as being bizarre as the Tribunal is in effect stating that if the applicant tried to enrol but could not, this indicated that failure to enrol was not due to exceptional circumstances beyond his control.  Mr Young submits that a simple example demonstrates how capricious and unreasonable the approach of the Tribunal was.  An institution that accepts enrolments only between 1 June and 15 June for a course that begins on 1 July and ends on 31 December.  Throughout, the applicant is in a coma after a car accident.  He makes a miraculous recovery and tries to re-enrol in August.  The institution will not accept his enrolment.  According to the Tribunal’s reasoning because he is not prevented by illness from enrolling, the fact that he wishes to enrol indicates that at that time his failure to be enrolled is not due to exceptional circumstances beyond his control.

3. Mr Young, in reply to the first respondent’s submissions, indicated that he sought to clarify his concession, which was that the Tribunal in its decision on 16 November 2010 applied the correct test in respect of the s.359A letter. However, whether it had in mind the correct test when it prepared the letter on 6 October 2010 cannot be determined but it probably does not matter because the important thing is the way in which the Tribunal expressed itself in that letter. Mr Young indicated that he accepted the distinction that Ms Clegg drew in the general run of cases between the operation of s.359A, which is seeking particular information and the response to that, and s.360, which invites the applicant to a hearing. Mr Young argues that the problem in this matter is that the s.359A letter itself states what the issues are going to be for the Tribunal to determine, whereas the only issues that the Tribunal ever had to consider were those arising under Reg 2.43(2)(ii)(b), (a) and (b) – that it had to be satisfied that visa holders hadn’t complied with condition 8202. That’s what the particulars of the information sought were and then the way in which the Tribunal dealt with it is contained within that statement.

4. Then there is an invitation to provide information that’s pursuant to s.359 and again the Tribunal sets out the issues that if the Tribunal is satisfied that non-compliance wasn’t due to factors beyond the visa holder’s control, then it will consider whether the visa would remain cancelled. So, in this case the Tribunal in the s.359A letter was setting out the issues arising in relation to the review and the way in which the Tribunal would deal with them. A letter on behalf of the applicant (CB 52) is equivocal as to how the applicant had treated the letter from the Tribunal. It states:

   It is clear that the applicant is trying to establish exceptional circumstances and seeking additional time.

   Significantly, the words “It is clear that the applicant is trying to establish exceptional circumstances” might mean that the applicant thought that the onus was as stated in the Tribunal’s letter.  It might simply mean that the applicant was trying to raise the issue of exceptional circumstances.  Clearly, the applicant was dealing with the issue of exceptional circumstances as being an important one and for that reason, seeking additional time.

Submissions on behalf of the Respondent

1. Ms Clegg, appearing for the Minister, submits that the Tribunal’s reasons for decision show a methodical exploration of the applicant’s claims. She submits that the material demonstrates that the Tribunal asked the applicant to expand upon each of the matters referred to him prior to the cancellation of the visa and when he was before the Tribunal. The Tribunal asked him to discuss all of the matters he referred to and on one occasion, even prompted him to remember his own claim. The Tribunal also addressed each of the applicant’s responses to a s.359A letter which had been sent to him by the Tribunal prior to the hearing. The Tribunal also referred to and summarised the content of a psychologist’s report which had been provided by the applicant, but gave it no weight.

2. It is submitted that the Tribunal’s findings and reasons demonstrate a comprehensive consideration of the applicant’s claim that a year long failure to enrol in a registered course was due to circumstances beyond his control.  The Tribunal observed that the difficulties the applicant faced were not uncommon events and that these were “not exceptional”.

3. Ms Clegg notes that the Amended Application leads six grounds of review and that the first five grounds make it clear that they are an amalgam of complaints put slightly differently which merely disagrees with the Tribunal’s reasoning.  Ms Clegg also observes that the written submissions made on behalf of the applicant are not organised by reference to the specific grounds of review, however, the approach adopted by the Minister was to address each ground in the Amended Application.  I intend also to adopt this approach and address each ground in turn.

Ground One

1. Ms Clegg, in her written submissions, submits that the complaints about the failure to give proper and genuine consideration to certain aspects of a claim may now stand to be considered by reference to the question whether the reasoning or result was so unreasonable that no reasonable person could have come to it: Minister for Immigration & Citizenship v SZJSS (2010) 273 ALR 122 at [23] – [33]; Minister for Immigration & Citizenship v SZMDS (supra) at [130] – [131]; Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108 per Kenny J at [41] – [42]. The applicant’s complaint about the Tribunal’s approach to his case falls in to that category whereby describing the reasoning as illogical, irrational or unreasonable is merely an emphatic way of expressing disagreement with the decision: Re Minister for Immigration & Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 per Gleeson CJ at [5].

2. The applicant complained in particulars (a), (b), (c) and (d) about the Tribunal’s approach to his evidence regarding his brother’s health, the information and analysis in the psychologist’s report, and his claim to have suffered from anxiety and depression. The Tribunal’s reasoning and conclusion about these particular matters were entirely open to it, especially given the sparse and unconvincing evidence presented by the applicant on these issues. The complaint raised, in particular one, that the reasoning was “oxymoronic” was not supported because the Tribunal simply considered that whilst the applicant might have been upset about his brother’s hospitalisation, the impact upon him did not go as far as he claims and the Tribunal gave comprehensive and coherent reasons for its conclusion: [53] – [57]. It is submitted that every aspect of the reasoning was well open to the Tribunal including the Tribunal’s rejection of the psychologist’s opinion.

3. Ms Clegg submits that the issues raised on behalf of the applicant in respect to the issue of illogicality or irrationality focus on [55] and [60] respectively, claiming that these paragraphs contained alleged deficiencies in reason.  Ms Clegg refers to Mr Young’s oral submissions and his reference to capricious or arbitrary reasoning.  To the contrary, Ms Clegg argues that none of the reasoning in those paragraphs points to capriciousness or any sort of standard one could refer to as arbitrary.  Ms Clegg submits that the way the Court should explore these kinds of claims is to ask the fundamental question which was asked by their Honours Crennan and Bell JJ in Minister for Immigration & Citizenship v SZMDS (supra) which, in effect, is that whether no reasonable person would arrive at the same conclusion. 
   It is submitted that the approach taken on behalf of the applicant was to tick through bits and pieces of the paragraph and suggest the range of arbitrary rules about what the Tribunal can and cannot do, which, in effect is classic merits review.  Contrary to this approach, it was entirely open to the Tribunal to take the approach that it took in relation to the applicant’s claimed depression.  There is no problem at all with the Tribunal considering the applicant’s claim that all of the things that had happened to him, the break up with his partner, problems with being overseas, the death of his aunt, and his brother’s illness as not amounting to depression, and not only did the Tribunal in this particular situation find that the applicant was not depressed, the Tribunal found positively that he had fabricated that claim for the purposes of the proceedings.  That is stated at [59], and furthermore, the Tribunal found that the applicant had gone and obtained the report from the psychologist also for the purposes of the proceedings.

4. Ms Clegg submits that she accepts Mr Young’s submission that if what was underlying those findings was capricious or unreasonable, on the SZMDS (supra) standards, then those findings by themselves would not save the Tribunal from the applicant’s ground. However, the approach urged on this Court by the applicant is to take small snippets of statements and explore suggested deficiencies in relation to each of them. Ms Clegg urges the Court to take the contrary approach when exploring unreasonableness type grounds as they need to be read in the context of the entire decision and looked at with all of the findings in relation to a particular issue. In this particular case, not only was it reasonable for the Tribunal to arrive at the findings that it did in relation to the applicant’s depression, it was also to be expected, in light of the very sparse and inadequate claims made by the applicant in relation to those matters. Ms Clegg submits that the same applies in relation to [60]. However, [60] reveals the Tribunal sitting back, looking at the entire period of the breach which was that the last enrolment was in 2009 which was an entire year before. The Tribunal is then, in that entire paragraph, looking at and assessing the applicant’s claim as to why he failed to enrol. The fact that he did attend on one day was not indicative to the Tribunal that in fact this amounted to an exceptional circumstance.

Ground Two

1. This Ground was not pressed.

Ground Three

1. Ms Clegg submits that the applicant’s claim in respect of “exceptional circumstances” was misinterpreted by the Tribunal. The Tribunal referred to the relevant case law and to the ministerial direction at [14] – [18]. The Tribunal well understood that the matter referred to in both the case law and the ministerial direction are not exclusive: [19]. The Tribunal referred to Hatcher v Cohn [2004] FCA 1548 at [49] – [50]; Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 918; Chen v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 142 FCR 257 at [111]; Khant v Minister for Immigration & Citizenship & Anor [2009] FCA 1247 at [70].

2. Ms Clegg contends that the applicant’s primary complaint appears to be that the Tribunal erred by considering each of the applicant’s excuses for not enrolling in a course individually and did not consider them cumulatively. Yet, as the applicant acknowledges, this is at odds with what the Tribunal expressly said about its approach at [61]. Further, the Tribunal referred to “events” after summarising a number of events: [48] – [50]. The Tribunal also referred to a “combination of events”: [55]. It is submitted that it is palpably clear that the Tribunal considered the claims cumulatively. It is also palpably clear that the Tribunal did not confuse the meaning of “circumstances”. The Tribunal had regard to all of the applicant’s claimed circumstances.

   
   

   It simply rejected them as demonstrating that the applicant failed to enrol due to circumstances beyond his control. Indeed, the Tribunal went further than that. It positively found that the applicant had no intention to study in Australia and that this was the reason he had not enrolled: [59].

3. Ms Clegg submits that the Tribunal’s approach to this case reveals adherence to Part A (6) of the ministerial direction: (CB 7).  It requires the Tribunal to come to its own decision as to whether it was satisfied that the non-compliance with the visa condition was not due to exceptional circumstances.  The examples at Part A (4) of the direction give some context to the types of matters that the Minister considers as amounting to exceptional circumstances.  They include the occurrence of political upheaval or a natural disaster in a country, or (in the case where there may be a dispute as to whether non-compliance occurred) a failure by an education provider to accurately monitor attendance or give access to a complaint process.  Therefore, even if the Tribunal had accepted all of the applicant’s claims at face value – which it did not – it would have been open to the Tribunal to find that the circumstances were not exceptional or beyond the control of the applicant.

4. Ms Clegg referred the Court to the approach taken in the Full Court in Maan v Minister for Immigration & Citizenship & Anor (2009) 179 FCR 581 per Dowsett, Greenwood and Collier JJ at [51] – [52], in a case where the Tribunal actually accepted the applicant had depression but still rejected this as exceptional:

   Although the expression “exceptional circumstances” is not defined in the regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

   We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. (cf Baker v R (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]–[25])

   In this case the Tribunal considered in detail the meaning of “exceptional circumstances” in the context of these proceedings, and whether the appellant’s non-compliance with the conditions of his visa was due to exceptional circumstances beyond his control. Indeed, the Tribunal accepted the appellant’s evidence as to the events which had occurred in respect of his mother and grandfather, and gave consideration to his claims concerning his teacher at VIT and the stress of being away from home. On the facts the Tribunal found it plausible that the appellant should have experienced stress and depression as a result of the events involving his mother and grandfather. However the Tribunal was not satisfied that the appellant remained stressed or depressed several months after those events, particularly in light of the appellant’s failure to seek professional assistance. It is perhaps surprising that the Tribunal would find that a male student, aged 18 years old, and alone for the first time in a foreign country, would naturally seek medical help for depression-related symptoms. However the findings of the Tribunal in respect of the exceptional circumstances submitted by the appellant were findings of fact, clearly open to the Tribunal, and do not reveal jurisdictional error. The Federal Magistrate also considered this aspect of the appellant’s case in detail, and no deficiency in the reasoning of the Federal Magistrate in relation to this issue has been identified by this court.

5. Ms Clegg submits that given the fact that the legislation is about a person that it is clear that it must impact upon a person.  It is clear that the Tribunal did not focus on the events as it looked at the impact on the applicant.  The references to particular claims of the applicant, being events or a combination of events, does not mean it was in any way constrained in not thinking about the impact on him.  The entirety of the Tribunal’s reasoning indicates that it was very much focused on the applicant.  It found that he, the person, fabricated their claims. 
   It found that he had no intention of studying in Australia. There really is not suggestion at all that the Tribunal somehow misapplied or adopted the wrong test by focusing inappropriately on each event rather than on the claimed impact on him as a person. Contrary to the submissions made on behalf of the applicant that it did not take a cumulative approach is not supported by the contents of the decision at [61]. It states that it had considered the totality of the evidence and that it considered the applicant’s claims singularly and cumulatively.

Grounds Four and Five

1. These Grounds were not pressed.

Ground Six

1. Ms Clegg acknowledges that after hearing Mr Young’s oral submissions on this ground, it is really characterised as a breach of s.360 of the Act which in a sense reflects the natural justice hearing rule, in that a person must be invited to a hearing and be permitted to present evidence and deal with issues that arise in relation to the review. The ground was put on behalf of the applicant as turning on an alleged defect or inaccuracy in the s.359A letter (CB 43 – 45). Even accepting that, as Mr Young properly accepted, that the Tribunal had in its mind the right test, that is the precise way in which the regulation worked and reflecting the nature of the onus.

2. The argument advanced on behalf of the applicant was that the way in which the s.359A letter was set out and in the absence of any correction by the invitation letter, the applicant went to the hearing under the impression that due to the contents of the s.359A letter as to the way in which the matter was to be run before the Tribunal. Ms Clegg makes the submission that the Minister does not accept that the description of what the Tribunal’s approach to this case would be as expressed in the s.359A letter is inaccurate or misleading. It should be seen, rather, as a paraphrasing or summary of what the Tribunal was setting out to do. The fact that it is not directly expressed in the terms of the legislation is not misleading and it should be treated as a simple paraphrasing of the legislation. The way that it was expressed on behalf of the applicant was that the real error occurred when it was not later fixed in s.360 invitation.

3. The argument put on behalf of the applicant was that the s.360 letter had something to do with the s.359A letter in that it failed to reveal to the applicant, or his agent, what the true issues in the review were.
   Ms Clegg submits there is a distinction between the s.359A letter and the s.360 letter which invites the applicant to the hearing. The s.360 does not set out the issues in relation to the review. It satisfies the requirement to invite a person to go to the hearing where the issues will be discussed. A s.359A letter sets out adverse information, that is information for the purposes of the review, that may be held against the applicant, but it does not set out all of the issues in relation to the review. The Tribunal’s obligation in a s.359A letter is to set out information which it sees as being fundamentally at odds with the applicant’s claim to be entitled to a visa. Ms Clegg submits that the respective letters have two different roles, but the argument advanced on behalf of the applicant hinges on them performing the same role.

1. Ms Clegg submits that Mr Young indicated that he accepted the proposition that comes from the Minister’s submissions that the applicant has not said how he was misled in a practical way by this so-called error or mis-description in the s.359A letter and accepts that in an ordinary procedural fairness sense it might be an answer to the proceedings. However, the way in which the court has looked at provisions like s.360 and s.425 in order to assess whether an applicant has had a fair hearing is similar to the way of a assessing common law procedural fairness which was addressed in the High Court case of Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489 and Minister for Immigration & Citizenship v SZLFX & Anor (2009) 238 CLR 507. These matters were about s.424, which is invitation to provide information and to obtain in getting information by the Refugee Review Tribunal and whether there were procedural fairness obligations attached to those. In SZKTI (supra) there was an additional s.425 matter raised and in that case there was the provision after the hearing of a letter which sought to provide further evidence into an aspect of the applicant’s claim. In that case the applicant filed a Notice of Contention in the High Court alleging that because he had provided this additional information there was a new issue in relation to the review. In unanimous reasoning in that case as to whether or not there was a breach of s.425 depends on circumstances of the case. In that case it characterised the actual additional evidence as going on to an extant issue, namely, an issue that already had been discussed at the hearing and therefore a live issue and in the circumstances in that particular proceedings did not require the Refugee Review Tribunal to conduct a second hearing. Significantly, in the High Court’s focus in that case was on the malleable or flexible nature of s.425, namely, being dependant on the circumstances as to whether or not there is a breach of it.

2. Ms Clegg submits that the argument advanced on behalf of the applicant that the above approach is not appropriate when it comes to a statutory obligation because that obligation is absolute and is not looked behind. Ms Clegg contends that if this Court accepted that the s.360 letter was in some way bound to rectify the alleged previous mistake then the appropriate approach is to look at the circumstances of the case itself. There is nothing in this case which suggests that the applicant was in any way misled by a mis-description of onus matters in relation to the Regulation and whose onus it was to meet the exceptional circumstances case. It is submitted that it is clear that the applicant knew precisely what this case involved. There had been no issue, which is acknowledged on behalf of the applicant, that the breach had occurred in relation to reg. 8202. This case was about whether or not he could establish exceptional circumstances and that is evident from the applicant’s agent’s letter responding to the s.359A letter (CB 52).

3. The agent’s letter states:

   As you may note, the Applicant has admitted that he had been late for enrolment.  However, he has indicated that the had suffered from stress, anxiety and disoriented since November 2009.  It is clear that the applicant is trying to establish exceptional circumstances

   Ms Clegg submits that it is clear that the applicant understood what this hearing was about and that he was not misled in any way, let alone in some technical way and that the ground has no substance for those reasons.

Consideration

Issue One

1. In approaching this issue I’m guided by the article of G. Weeks, “The expanding role of process in judicial review” (2008) 15 AJAL 100 where the author states that the Australian Courts are uncomfortable with any ground that asks them to look at the quality of the outcome, where quality is assessed by criteria of fairness.  The Courts are also similarly uncomfortable with any ground that asks them to look beyond the mechanics of a process to its quality.  For example the Courts are extremely suspicious of review grounds that ask them to assess a decision for having been reached irrationally, or without having given proper, genuine and realistic consideration to mandatory factors.

2. The Applicant’s visa was cancelled for breach of condition 8202 and is not in dispute but what is in dispute centres on whether the Minister should have accepted that breach was due to exceptional circumstances resulting in the exercise of discretion.  The relevant version of condition 8202 is the version applicable at the time of the visa grant: Pradhan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 91 at [19]. However, in the case of a breach that occurred on or after 1 July 2007, the relevant version of that condition is the one in force as at 1 July 2007: reg.5 of the Migration Amendment Regulations 2007 (No.5). Condition 8202 is found at Item 8202 of Schedule 8 to the Regulations. The relevant version of condition 8202 that applies in the present case is as follows:

   (1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

   (2) A holder meets the requirements of this subclause if:

   (a)  The holder is enrolled in a registered course; or

   …

3. However, cancellation was only mandatory under Reg 2.43 of the Migration Regulations 1994 (Cth) if the Minister was satisfied that “the non-compliance was not due to exceptional circumstances beyond the visa holder’s control” (Reg 2.43(2)(b)(ii)(B)).

4. As indicated above, Mr Young did not press any grounds in the amended application filed in Court on the day of the hearing relating to bias.  He indicated that the ground based on capriciousness, arbitrariness and unreasonableness was confined to that terminology used in the decision of Minister for Immigration & Citizenship v SZMDS (supra) which goes to the method of reasoning rather than any element of pre-judgment.  Consequently, the arguments being advanced are:

   a)Failure to give proper, genuine and realistic consideration and/or irrationality; (Issue One – Grounds One and Two)

   b)Incorrect interpretation of the term “exceptional circumstances”; (Issue Two – Ground Three) and

   c)The s.359A/s.360 letters (Issue Three – Ground Six).

5. The matter in dispute in this initial ground is whether the five issues identified and dealt with by the Tribunal at [49] – [54] of its Decision Record (listed at [18] above) were or were not dealt with upon logical grounds or arbitrary, capricious or unreasonable. The argument advanced by Mr Young was that the Tribunal adopted an approach of isolating each element of the applicant’s circumstances and treated each in isolation.

6. The context in which the claim of capriciousness, arbitrariness and unreasonableness is advanced is that which is described in the High Court decision of SZMDS (supra) per Crennan and Bell JJ at [130] – [131] where their Honours said:

   In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

7. In Minister for Immigration and Citizenship v SZLSP (supra) per Keenny J at [40] – [42], her Honour stated:

   Thus, the Minister’s submission that any consideration of the Tribunal’s finding regarding the first respondent’s knowledge should necessarily be avoided due to risks of “merits review” must be rejected. The Migration Act and the authorities clearly disclose the basis for mandated judicial review. Section 65 of the Migration Act provides that the Minister is to grant a protection visa application if he is “satisfied” that the relevant criteria have been met and deny the application if he is “not so satisfied”. However, the Minister (or the Tribunal: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (SGLB) at 20 [37]) is only empowered to make a determination regarding the relevant state of satisfaction where that determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds: see Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367 (SZMDS) at 376–77 [37]–[42] per Gummow ACJ and Kiefel J (dissenting as to the application of law to facts) (citing, amongst other authorities, SGLB 207 ALR at 20–21 [37]–[38] per Gummow and Hayne JJ; WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 (WAIJ) at 573–74 [17]–[26] per Lee and Moore JJ 573–74 [22]; and SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [15] per Gordon J) and 388–389 [102]–[105], 393–96 [121]–[131] per Crennan and Bell JJ (citing, amongst other authorities, Avon Downs Pty Ltd v FCT (1949) 78 CLR 353 (Avon Downs) at 360 per Dixon J; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (Eshetu) at 657 [147] per Gummow J). As stated by Gummow and Hayne JJ in SGLB (207 ALR at 20 [37]–[38]):

   The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a “jurisdictional fact” or criterion upon which the exercise of that authority is conditioned ….

   The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. (Footnotes omitted)

   Where the Tribunal’s determination regarding the state of satisfaction turns on its evaluation of an applicant’s knowledge of a religion, and that evaluation is irrational in the relevant sense, the jurisdictional foundation for the Tribunal’s decision will be absent. As Gummow ACJ and Kiefel J observed in SZMDS (266 ALR at 327 [40]), the conclusion that a Tribunal’s decision was irrational in the requisite sense should not be reached lightly. “Irrational” and “illogical” in this context “are analogues of arbitrary or perverse” and “are not used with a lesser colloquial meaning that may be applied where the words are introduced in debate to emphasise the degree of dissent from a disputed conclusion or point of view”: see WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87 at [7] per Lee J (dissenting in the result), citing (amongst others) Eshetu 197 CLR at 626 [40] per Gleeson CJ and McHugh J; and see also SZMDS 266 ALR at 396 [130] per Crennan and Bell JJ. At the same time, however, apprehension of merits review must not operate to shield decisions which have been reached without the necessary jurisdictional foundation: see SZMDS 266 ALR at 377 [42] per Gummow ACJ and Kiefel J.

   I would interpolate here that the conditions discussed above at para [39] will not always, and need not necessarily, be expressly articulated in the Tribunal’s reasons. Often they will be apparent from the nature of the material relied on by the Tribunal. I would also interpolate that the “material” may be the knowledge the Tribunal has acquired through exposure to previous claims based on the same religion (see, eg, SBCC [2006] FCA 270 at [27]), though there is nothing to suggest that such was the case here. When the Tribunal relies on its accumulated personal knowledge, however, s 430(1)(d) of the Migration Act requires that it refer to that fact in its reasons (see below).

8. In Minister for Immigration and Citizenship v SZJSS (supra) per French CJ, Gummow, Hayne, Heydon, Crennan, Keifel and Bell JJ, where their Honours traced the recent developments in respect of the determination of jurisdictional error, and particularly at [29] – [32] where their Honours examined the issue of “proper, genuine and realistic consideration”.  Their Honours stated:

   In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs, the Minister accepted that a statutory provision requiring a Tribunal to give an applicant an opportunity to appear before it and give evidence implies that such evidence is to be given proper, genuine and realistic consideration. The Minister reiterated that position in this case.

   In Swift v SAS Trustee Corporation, Basten JA (with whom Allsop P agreed) noted Khan’s case and said of the language of “proper, genuine and realistic consideration”:

   That which had to be properly considered was “the merits of the case”. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review.

   The first and second respondents contended that the Tribunal’s treatment of the facts, more particularly the letters, was arbitrary, capricious, irrational and unreasonable, and accordingly was inconsistent with the Tribunal’s statutory duty to review. It was submitted that the Federal Court’s findings of irrationality, unreasonableness, (without describing it as such) and a constructive failure to exercise jurisdiction were wholly consistent with the accepted principles governing judicial review.

   The Minister contended that the weight to be accorded to the letters, and the factual matters to which they gave rise, were entirely matters for the Tribunal as they concerned the merits of the application. It was submitted that the Federal Court employed the language of “proper, genuine and realistic consideration” to register the court’s response to a weighing of the evidence with which the court disagreed. This, it was said, does not amount to jurisdictional error of the kind discussed by this court in Minister for Immigration and Citizenship v SZMDS. ^{- 34}

9. The Tribunal noted that the applicant provided a number of reasons for his failure to be enrolled, claiming that he had been suffering stress, anxiety and disorientation since November 2009 due to personal problems.  As these explanations provided by the applicant cover a wide range and differ in content it is initially difficult to combine them into one set of circumstances other than in a very broad categorisation and I believe it is appropriate in the method adopted by the Tribunal.

10. At [49] the Tribunal notes the applicant claims that he was new to the country and had never lived away from his parents before which was addressed by the Tribunal in the following way:

    The Tribunal notes, however, that by November 2009 the applicant had been in Australia for over 2 years, as his passport shows.  The applicant was no longer new to the country and he had been living away from his family for quite a long time.  Further, the Tribunal is of the view that such difficulties are experienced by many international students who move to another country or move away from the family home.  The Tribunal does not consider such circumstances as exceptional.

11. At [50] the Tribunal referred to the break up of his relationship, his partner moving out and his need to find other accommodation.  This was addressed as following:

    The applicant presented no documentary evidence of the existence of his relationship and little evidence about the break up of his relationship and the search for new accommodation.  Further, the Tribunal is of the view that such events are not uncommon.  They are not exceptional.

12. At [51] the Tribunal addressed the applicant’s claim that he was unhappy with his course of academic study.  This was addressed as following:

    The Tribunal considers this circumstance to be neither exceptional nor beyond the applicant’s control.

13. At [52] the Tribunal addressed the applicant’s claim in relation to the death of his aunt.  This was addressed as following:

    He presented no documentary evidence of her death, such as a death certificate.  Significantly, he appeared to have forgotten about his aunt’s death as a reason that has affected his ability to be enrolled and it was only after prompting by the Tribunal that he referred to his aunt’s death.  He stated that he was upset by it.  The Tribunal does not consider this circumstance to be exceptional nor does the Tribunal consider the death of his aunt, if such occurred, to have prevented the applicant’s ability to enrol in a course since November 2009.

14. At [53] – [54] the Tribunal addressed the applicant’s claim in respect of his brother’s illness.  This was addressed as following:

    The applicant presented no medical evidence about his brother’s illness or his treatment.  He appeared uncertain about the dates of his brother’s hospitalisation and release from hospital or when he was informed of it by his mother.  He states that his brother was released after 2 weeks in submissions to the delegate on 2 August 2010 he referred to one month hospitalisation.  In his evidence the applicant appeared very vague in his description of his brother’s condition and the treatment he received in late 2009 and the Tribunal is not satisfied that the applicant had been truthful in his claim concerning his brother’s health and effect it had on him.

15. Although all of these issues can be broadly characterised as being personal, they cover five unrelated issues.

16. The Tribunal did not find that mental illness and depression are not serious health issues, it simply did not accept that the applicant suffered from them.  I acknowledge Ms Clegg’s submission that there is no “right” or “wrong” test by which the Tribunal evaluates the applicant’s claim to have suffered from depression as this is not a question of law: Maan v Minister for Immigration & Citizenship & Anor (supra) per Dowsett, Greenwood, and Collier JJ at [51].  It is matter within the exclusive province of the Tribunal.

17. At [44] of the Tribunal’s decision the Tribunal refers to a report received from the applicant in the form of an unsigned report from a Mary Sutton (psychologist) of the Kairos Centre dated 26 November 2010 relating to the applicant.  The contents of that report are set out in some detail in that paragraph.  In the Findings and Reasons at [56] the Tribunal notes that the psychologist’s report was prepared well after the events that the applicant claims to have described and well after his student visa was cancelled.  The Tribunal notes that the report was prepared on 25 November 2010 revising an earlier version dated 25 October 2010.  Significantly, the Tribunal notes:

    The Applicant could not explain to the satisfaction of the Tribunal why he failed to seek professional help earlier.  In the Tribunal’s view the sole reason for the applicant’s approaching the psychologist was to obtain evidence for the purposes of these proceedings.  The report largely refers to symptoms as reported by the applicant, which the Tribunal considers to be self-serving.  The only independent test to which it referred is an SCL90R test.  No explanation is offered about the test, its content or purpose, how it was administered or what results were actually achieved.  The report refers to the applicant suffering from elevated levels of somatisation, obsessive compulsive thoughts, interpersonal sensitivity, anxiety, depression and paranoid ideation but it appears to refer to the applicant’s current condition and not to the relevant period since November 2009.

1. The Tribunal also notes a number of inconsistencies of the case notes taken by the psychologist and contained within the report compared with those given by the applicant during the hearing.  The Tribunal then goes on to say at [57]:

   …Neither is it apparent from the report that the applicant has discussed with Ms Sutton his employment and Ms Sutton has not explained to the satisfaction of the Tribunal why the applicant is able to work while suffering from the ailments she describes.  The Tribunal gives this report no weight. 

   In coming to this finding the Tribunal was left with the applicant’s claim that he was depressed but the Tribunal rejected this claim having regard to all of the evidence, finding for good reasons that the claim had been fabricated (CB 93 at [59]).

2. Clearly the Tribunal has approached the review of the applicant’s claims for his failure to be enrolled by treating them as two separate limbs.  The first limb is the five contributing factors which he claims led to his depression.  It is noted above, although these are broadly categorised as personal issues they are, in effect, sufficiently different to warrant and require individual assessment which the Tribunal has done in a logical fashion.  The second limb is to consider the consequences of these personal issues as marshalled and addressed in the psychologist’s report which, in turn, could be characterised as consequences of these personal issues.  However, as the Tribunal notes, there are both deficiencies in the report itself and distinct inconsistencies between what the applicant told the psychologist and what she in turn recorded in her report, being considerably different in detail as recounted by the applicant to the Tribunal member during the hearing.

3. Guided by the authorities identified above as to the manner in which judicial review of this subject matter should be approached, an argument advanced that the approach of the Tribunal was illogical cannot be sustained.  Similarly, the claim that the Tribunal was capricious, arbitrary or unreasonable in the terms expressed in the decision of SZMDS (supra) cannot be sustained and should be dismissed.

Issue Two

1. In respect of the second Issue identified at [49 (b)] above, if the Tribunal is satisfied that there was a failure to comply with condition 8202, it must then be satisfied that the non compliance was not due to exceptional circumstances beyond the applicant’s control under reg.2.43(2)(b)(ii)(B). This requires a positive state of mind on the part of the decision maker that there are no relevant exceptional circumstances: Khant v Minister for Immigration and Citizenship (supra) at [70]. 

2. Regulations 2.43(2)(b)(ii)(A) & (B) states:

   (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.

3. The term ‘exceptional circumstances’ in this context is not defined in the legislation.  However, it has been the subject of judicial consideration in Maan v Minister for Immigration and Citizenship (supra) where the Full Federal Court referred to the following comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 where his Lordship states:

   We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art.  It describes a circumstances which is such as to form an exception which is out of the ordinary course, or unusual, or special, or uncommon.  To be exceptional a circumstances need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

4. The expression ‘exceptional circumstances’ also appears in s.137L(1)(b) of the Act which permits the decision-maker to revoke the automatic cancellation of Student visas for breach of condition 8202 if satisfied that the breach was due to ‘exceptional circumstances beyond the non-citizen’s control’. In the decision of Wang v Minister for Immigration and Multicultural and Indigenous Affairs (supra) his Honour Walters FM cited with approval the comments of her Honour Kiefel J in Hatcher v Cohn (supra) at [49] – [50] where her Honour states:

   ‘Exceptional’ circumstances, in general terms, are those circumstances which are unusual or out of the ordinary.  But the term is also one which may have a wide operation.  Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances…The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the relevant statutory provision.

5. Although the comments in both Wang v MIMIA (supra) and Hatcher v Cohn (supra) are not made in the context of reg.2.43 of the Regulations, they offer guidance to the relevant considerations of exceptional circumstances.

6. While the decision maker was obliged to have regard to whether there were exceptional circumstances, the concept of whether there were exceptional circumstances in reg.2.43 is an extremely broad concept, commonly used to give a decision maker the power to identify circumstances or reasons which are to apply as a qualification on some other statutory provision. What the decision-maker was considering under reg.2.43(2) was not just whether there were exceptional circumstances beyond the Applicant’s control, but also whether the decision-maker was positively satisfied that the non-compliance was not due to such circumstances. In such a context, the scope of potentially ‘relevant’ considerations are unconfined beyond the fact that what is in question in any suggested circumstances is whether it is an exceptional circumstance beyond the Applicant’s control that has caused the non-compliance in issue: Maan v Minister for Immigration and Citizenship (supra). 

7. In Karmaker v Minister for Immigration & Citizenship [2011] FMCA 595 per Barnes FM at [60] – [62] her Honour addresses the issue in respect of irrelevant considerations in the context of reg.2.43(2) or as to how one determines whether the decision-maker has taken into account an irrelevant consideration in the context of such a statutory provision. Her Honour states:

   There is a helpful elucidation of applicable principles by Smith FM in Kim v Minister for Immigration and Citizenship [2008] FMCA 1577. An appeal from that decision was dismissed in Bo Hyung Kim v Minister for Immigration and Citizenship [2009] FCA 161. While Smith FM was considering a provision that involved a dispensation from the normal rule where there were exceptional reasons for the grant of a visa (which is not exactly the same concept or context as here), it is nonetheless relevant that his Honour proceeded on the basis that the Migration Act would allow the making of a regulation that conferred an unconfined discretion in that respect. On that basis the decision-maker could give effect to any rational reasons (at [15]). Further, Keifel J accepted in Hatcher v Cohn (a case referred to by the Tribunal) at [50] that a formulation such as “exceptional circumstances” (like “special circumstances”) “is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition” (emphasis added) (Baker v R (2004) 223 CLR 513 ; [2004] HCA 45 at [13] per Gleeson CJ).

   In Hatcher v Cohn Kiefel J applied such an approach in relation to the concept of “exceptional circumstances” in the Migration Act, indicating that this concept “may apply to a variety of circumstances and no definition which limits their application should be adopted unless the limitation appears from the words of the relevant statutory provision” (at [50]).

   As a matter of statutory construction there is nothing in the language of reg 2.43(2) or in the context of the legislation to indicate that there is some limitation on factors the Tribunal can take into account in proceeding to consider whether it is satisfied that non-compliance with condition 8202 was not due to exceptional circumstances beyond the applicant’s control, other than the question which it had to ask itself. Reading the Tribunal fairly and as a whole, that it precisely what the Tribunal proceeded to do.

8. In the Full Court decision of Maan v Minister for Immigration & Citizenship (supra) the issue of exceptional circumstances is addressed.  That was a case in which the applicant’s claims were very much like the ones being advanced in the matter before this Court in that the applicant was claiming that he had had some problems.  There were some family problems concerning his mother and grandmother. 
   He had a difficulty with one of the teachers at his educational institution.  He was feeling stressed by living away from his family in his home country and he was also claiming that he had experienced stress and depression.  The Tribunal found that the applicant might have been depressed but that things were not so serious because he did not seek professional assistance.  The Full Court queried the Tribunal whether in fact they would have found that a male student aged 18 and alone for the first time in a foreign country would seek medical help.  The Tribunal reasoning was if things were so bad he would have sought professional assistance at the time and that was the underlying basis for the rejection that the circumstances were not exceptional.  Nevertheless, in Maan (supra), which is a much better factual case from the applicant’s perspective, the Full Court found at [52] that:

   Findings of the Tribunal in respect to exceptional circumstances submitted by the applicant were findings of fact clearly open to the Tribunal.

9. I agree with the submissions made by Ms Clegg that all the Tribunal’s reasoning in this matter fall well and truly into that line of territory and for that reason there is no established jurisdictional error of the kind raised in the applicant’s amended application.  Consequently this Ground cannot be sustained and should be dismissed.

Issue Three

1. The s.359A letter issued by the Tribunal on 6 October 2010 contains the following information:

   Invitation to comment on or respond to information

   In conducting its review, the Tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, the Tribunal has not made up its mind about the information.

   The particulars of the information are:

   ·    You were granted a student visa on 3 September 2008.  That visa was subject to condition 8202, which relevantly requires you to be enrolled in a registered course.

   ·    Your student visa was granted to you on the basis of your enrolment in an advanced diploma course.

   ·    Electronic records before the Tribunal indicate that you ceased to be enrolled in a registered course on 10 November 2009.

   This information is relevant as it may cause the Tribunal to find that you breached condition 8202 of your student visa.

   If the Tribunal finds that you breached condition 8202, your visa must remained cancelled, unless the Tribunal finds that the breach was due to exceptional circumstances beyond your control.  If the Tribunal so finds, your visa may be cancelled.

   You are invited to give comments on or respond to the above information in writing.

2. The complaint raised by Mr Young is the way that the Tribunal expressed itself in the above letter and identifies the problem as being that the letter states what the issues are going to be for the Tribunal to determine, whereas the only issues that the Tribunal ever had to consider were those arising under reg. 2.43(2)(ii)(B) – that it had to be satisfied that the visa holder had not complied with condition 8202.

3. Section 359A requires the Tribunal to disclose information that makes the opportunity to “comment … or respond” a meaningful one: SZNKO v Minister for Immigration & Citizenship [2010] FCA 297.

4. In this case, the “reason”, or a part of the reason, for affirming the decision that was under review was that the applicant was not enrolled in a registered course and consequently did not satisfy the visa requirement of reg. 8202. The question which the applicant’s allegation raises is, therefore, what did the Tribunal consider, at the time the s.359A notice was sent was information, unless it was persuaded to the contrary by the applicant, would be the reason or part of the reason for affirming the delegate’s decision that the applicant had not satisfied reg. 8202: MZYFH v Minister for Immigration & Citizenship [2010] FCA 559. The Court is to determine the question independently from the Tribunal’s reasoning: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [17] and to do so objectively from the available evidence which, in appropriate cases, may include the Tribunal’s reasons: SZMNP v Minister for Immigration & Citizenship [2009] FCA 596 at [53].

5. In drawing the s.359A(1) notice in this case the Tribunal had to identify the sole exemption to the operation of reg. 2.43 that would prevent its automatic and statutory requirement for cancellation of the sub-class 572 vocational education and training sector visa. Clearly at 6 October 2010 the Tribunal was not in possession of any material to support a claim that exceptional circumstances were the reason for the failure of the applicant to comply with the requirements of 8202. Whether or not information is identified with sufficient specificity for the purposes of s.359A(1) of the Act will be a matter of fact, degree, and context depending on the circumstances of the case: MZXKH v Minister for Immigration & Citizenship [2007] FCA 663 at [18]. The test is an objective one, although one which must take the surrounding circumstances into account.

6. The clarity and detail of information provided pursuant to s.359A(1)(a) may be sufficient to lead to a situation where the Tribunal has complied with s.359A(1)(b) without giving an explanation which that paragraph contemplates. Even if the Tribunal failed to take independent steps under s.359A(1)(b) to ensure that the applicant understood what particular information was relevant to the review that relevance may be self-evident from the information itself: Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138 at [41]; Wang v Minister for Immigration & Citizenship [2007] FCA 488 at [29].

   
   

   In SZMTJ v Minister for Immigration & Citizenship(No 2) [2009] FCA 486 per Flick J at [52] where his Honour was dealing with the Refugee Review Tribunal’s equivalent to s.359A(1), he states:

   Although s 424A(1) imposes the trinity of requirements set forth in paras (a), (b) and (c), it is not considered that the compliance with s 424A(1) is necessary to be approached by considering each of the three requirements as though it were divorced from the rest.  The greater the degree of clarity in the “particulars of any information” provided, the less may be the exposition needed to convey the relevance of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant.  Section 424A(1)(b) remains a requirement to be satisfied; but the steps to be undertaken to discharge that requirement may well depend upon the clarity with which the information has been identified and indeed the character of that information.

7. In this case, the evidence does not support a conclusion that the applicant did not understand why the information notified to him was relevant to the review.  Throughout this process the applicant was being assisted by a registered migration agent who would be familiar with the requirements of any breach of 8202 and the only avenue available to the applicant to avoid the operation of reg. 2.43.  Further this is supported by the contents of the letter from Simon Diab and Associates, Solicitors and Migration Agents to the Tribunal dated
   13 October 2010.  That letter states:

   We refer to your facsimile on 6 October 2010 in the above matter and, can on instructions, we now enclose a response received from the applicant.

   As you may note, the applicant had admitted that he had been late for enrolments.  However, he has indicated that he had suffered from stress, anxiety and disorientation since November 2009.  It is clear that the applicant is trying to establish exceptional circumstances.  Therefore, we request that the Tribunal to allow additional time to submit our submissions and further evidence in relation to his medical and psychological condition.

   …

   (CB 52)

8. As to the claim by the applicant that exceptional circumstances existed that resulted in him failing to comply with the requirements of 8202, this was not evident till raised in the above letter on 13 October 2010. At the time of the writing of the s.359A letter this information had not been advanced to the Tribunal. Consequently, based on the authorities above I am satisfied that the Tribunal complied with the requirements of the Act when it prepared and forwarded the letter of 6 October 2010.

9. The Tribunal’s obligations under s.360 are to invite the applicant to a hearing in order to address the issues relevant to the decision under review and to have the Tribunal identify those issues if they are not apparent from the delegate’s decision. The primary obligation is to extend the invitation while the secondary obligation is to alert the applicant to the issues which may be determinative of the review. The Act does not require the Tribunal to identify possible determinative issues prior to the hearing which it proposes to hold: AZAAD v Minister for Immigration & Citizenship [2010] FCAFC 156 at [39]. The Tribunal’s duty is to alert an applicant to issues which are not apparent from the delegate’s decision. It is a corollary of its hearing with the consequences that if the applicant does not attend the Tribunal hearing he or she forfeits the right to be notified of those issues. An issue “for the purposes of that provision” is a factual matter, a finding in respect to which may be determinative of the review: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63. In this case the matters in question were concerned with whether condition 8202 had been breached and if any exceptional circumstances for that breach were being advanced by the applicant.

10. I agree with the submissions advanced by Ms Clegg in respect of this Ground which are set out at [40] – [45] above. I am further satisfied that this third issue cannot be sustained and should be dismissed.

Conclusion

1. After the concession made by Mr Young that any ground in the Amended Application that claims bias is withdrawn, none of the remaining grounds of review can be sustained.  Consequently, the application should be dismissed with costs.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Date:  8 December 2011