Feng v MIAC - [2011] FMCA 576

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FENG v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 576

MIGRATION – Application to review decision of Migration Review Tribunal – cancellation of student visa – whether Tribunal erred in consideration of whether breach of condition 8202 was caused by exceptional circumstances beyond the visa holder’s control or misconstrued the law or failed to comply with s.359A of the Migration Act.

Education Services for Overseas Students Act2000 (Cth), ss.19, 20
Migration Act 1958 (Cth), ss.116, 351, 359A, 360, 477
Education Services for Overseas Students Regulations 2001 (Cth), reg. 3.01
Migration Regulations 1994 (Cth), reg.2.43

Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199; [2006] FCAFC 167
Leung v Minister for Immigration and Citizenship (2010) 114 ALD 255; [2010] FCA 268
Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586; [2005] FCAFC 41
Muliyana v Minister for Immigration & Anor [2009] FMCA 691
Shrestha v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 669; [2001] FCA 359
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318
Suh v Minister for Immigration and Citizenship (2009) 175 FCR 515; [2009] FCAFC 42
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238

Applicant:

TING HUA FENG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1864 of 2010

Judgment of:

Barnes FM

Hearing date:

18 February 2011

Date of Last Submission:

25 March 2011

Delivered at:

Sydney

Delivered on:

27 July 2011

REPRESENTATION

Counsel for the Applicant:

Mr A Kumar

Solicitors for the Applicant:

Lawside Lawyers

Counsel for the Respondents:

Mr H P T Bevan

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1864 of 2010

TING HUA FENG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Migration Review Tribunal dated 3 August 2010 affirming a decision of a delegate of the first respondent to cancel the applicant’s Student (Temporary) (Class TU) Subclass 572 Vocational Education and Training Sector visa.
The applicant was the holder of a Subclass 572 student visa granted on 3 October 2007. That visa was subject to condition 8202, which is to be found in item 8202 of Schedule 8 to the Migration Regulations 1994 (Cth). The relevant part of the applicable version of condition 8202(1) required that the visa holder meet the requirements of s.8202(2) which, relevantly, provided that:
A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course…
The applicant was enrolled in and completed an Advanced Diploma of Hospitality Management at the Carrick Institute of Education between 14 January 2008 and 27 November 2009.
In early October 2009 the applicant was charged with various criminal offences relating to use of a false credit card, driver’s licence and Medicare card. His passport was subsequently held at Burwood Police Station until these criminal charges were finalised. The applicant pleaded guilty to four charges of having or using a false instrument with intention to use and was placed on a good behaviour bond on 19 February 2010. His passport was returned to him after his case was finalised.
In the meantime, by letter dated 29 January 2010 a delegate of the Minister issued the applicant with a notice of intention to consider cancellation of his visa under s.116 of the Migration Act 1958 (Cth) (the Act) on the basis that the records held by the Department indicated he had not been enrolled in a course of study since 27 November 2009 and had breached condition 8202.
Under s.116(1)(b) of the Act, the Minister may cancel a visa if he is satisfied that its holder has not complied with a condition of the visa. This power is subject to s.116(3) which provides that if the Minister may cancel a visa under s.116(1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
Regulation 2.43 of the Migration Regulations prescribes circumstances in which a visa must be cancelled and relevantly is as follows:
(2)    For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
…
(b)    In the case of a Student (Temporary) (Class TU) visa:
(i) that the Minister is satisfied that the visa holder has not complied with conditions 8104 or 8105 (if the condition applies to the visa); or
(ii)    that the Minister is satisfied that:
(A)    the visa holder has not complied with condition 8202; and
(B)    the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
The notice of intention to consider cancellation was returned to the Department on 22 February 2010 marked “unclaimed”. The applicant did not respond to this notice.
In written submissions the applicant suggested that the delegate had re-sent the notice of intention to consider cancellation on or after 23 February 2010. However the evidence before the court is that on 23 February 2010 the Minister’s delegate wrote to the applicant notifying him of the cancellation of his visa under s.116(1) and s.116(3) of the Act. The visa was cancelled on the basis that the applicant had completed his course at Carrick on 27 November 2009 and there was no evidence before the Department to indicate that he had been enrolled in a registered course of study since that date. The delegate was satisfied that the non-compliance was not due to exceptional circumstances beyond Mr Feng’s control.
The applicant sought review by application lodged with the Tribunal on 15 March 2010. He was invited to and attended a Tribunal hearing on 7 June 2010 and a further hearing on 12 July 2010. He provided the Tribunal with a Confirmation of Enrolment form issued on 4 March 2010 which showed that he had enrolled to study in a Diploma of Accounting course at Australian Nationwide College that commenced on 22 February 2010. The applicant also provided the Tribunal with evidence of satisfactory completion of the Advanced Diploma of Hospitality Management at the Carrick Institute.

The Tribunal decision

In its reasons for decision the Tribunal set out the applicable law, including in relation to the meaning of the term “exceptional circumstances”. It outlined the applicant’s claims and evidence. It set out in detail the evidence given by him at the Tribunal hearings, including his evidence that while the Diploma of Accounting course had started on 22 February 2010, he had not started there until some two weeks later because he did not want to enrol until he knew the outcome of his court case. He confirmed that the Department’s notice of intention to cancel and decision letters were sent to his correct address.
The applicant told the Tribunal that he did an English language course over summer of 2009-2010 which finished in late February 2010, but that he could not recall the name of the school. The Tribunal recorded that the applicant also said that he had to postpone his enrolment until he had enough money to apply to study. His original plan had been to sit for an IELTS test and apply for other types of visas. This had not been possible, as he had to have his passport to sit for an IELTS test. It had been taken by the police. He claimed he had been under a lot of pressure for six months.
The Tribunal gave the applicant the opportunity to provide further evidence before it made the decision, such as evidence from his current school that he was attending and performing satisfactorily and evidence of the claimed English language study from December 2009 to February 2010 and the outcome of that study.
The Tribunal recorded that no information was forthcoming from the applicant or his representative by the due date. However the Tribunal decided as a matter of fairness to hold another hearing at which it discussed further with the applicant whether there were exceptional circumstances beyond his control which led to his failure to be enrolled in a registered course. The applicant claimed that he had asked for an extension of his student visa and did not know it had been cancelled. He thought he had until 15 March 2010 to sort out his studies. He did not have the money to enrol until the end of February 2010 and was waiting for the outcome of his court case. He had not seen his agent until 21 February 2010. The current course was the only one that would let him enrol. His understanding was that his visa was to expire on 15 March 2010. He had hoped to lodge a skilled migration visa application on the basis of IELTS test results, but had not had time to do so.
After that hearing the applicant provided the Tribunal with a letter from Australian Nationwide College which stated that he was enrolled in the Diploma of Accounting course and also that he had satisfactory attendance and performance as at 30 July 2010. He did not provide evidence of his claimed English language study.

The Tribunal Decision

In its findings and reasons the Tribunal accepted that the applicant was enrolled in a registered course until 27 November 2009 and accepted his oral evidence that he enrolled in a further registered course (the Diploma of Accounting at Australian Nationwide College) on or around 4 March 2010. However it found that there was no documentary evidence before it to show that the applicant was enrolled in a registered course between 27 November 2009 and around 4 March 2010. While the Tribunal acknowledged that the applicant had claimed he was enrolled in an English course in that period, it also recorded that he had not claimed it was a registered course. Nor had he provided the Tribunal with any documentary evidence to support his claims, despite being invited twice at hearing to do so.
The Tribunal found that on the date the delegate made the decision to cancel the applicant’s visa (23 February 2010) the applicant was not enrolled in a registered course. It found that the applicant had not complied with this aspect of condition 8202. Hence it went on to consider whether the applicant’s visa must be cancelled under s.116(3) of the Act in light of reg.2.43. In that context the Tribunal considered whether the non-compliance was due to exceptional circumstances beyond the applicant’s control. The Tribunal addressed the applicant’s explanations for his non-compliance: that he was “awaiting the outcome of a criminal court case before he enrolled and, also that he did not have the money to pay for the school fees at that time”.
It stated that it turned directly to the issue of whether the circumstances were “beyond the applicant’s control”. The Tribunal referred to the approach taken by Smith FM in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318. His Honour had stated (at [17]) that the test of whether something was beyond the control of a person required “consideration of whether that person, in his or her own particular circumstances, might have been able to do so something to prevent the relevant event occurring”.
The Tribunal was of the view that there was “nothing preventing the applicant from enrolling in a course prior to his court case being finalised”. It accepted that he may have received a custodial court penalty which could have prevented his “attending” study, but found that this did not prevent him from “enrolling” as required by visa condition 8202 and commencing his studies at an earlier time. The Tribunal found that it was the applicant’s choice to not enrol until after his court case was finalised.
In relation to the applicant’s claim that he did not have the funds to enrol at an earlier time, the Tribunal stated:
The applicant’s evidence is that he asked his parents for the money after his court case had been finalised. Again, there was nothing stopping the applicant asking for these funds at an earlier time and hence enrolling at an earlier time. It was only his wish to not pay for a course which he may not have been able to attend if he received a custodial court penalty which prevented him from doing so.
The Tribunal found that the applicant’s decision not to enrol in a registered course after 27 November 2009 and before 4 March 2010 was “wholly within his control”.
The Tribunal also addressed the applicant’s claim that he did not receive either the Department’s notice of intention to cancel his visa or the visa cancellation letter (both of which were sent by registered post) and his claim that he would have enrolled in a registered course if he had known that his visa was to be cancelled.
The applicant claimed that his mail may have been stolen. The Tribunal had regard to the fact that the applicant had acknowledged that both the Departmental letters were correctly addressed. It accepted that the applicant was not aware of the Department’s intention to cancel his visa as that letter was returned marked “unclaimed”. However it found that the decision letter had not been returned to sender. As it was sent by registered post that must be signed for, the Tribunal concluded that this letter was received by the applicant, albeit by this time it was too late for him to do anything about the cancellation.
The Tribunal was not satisfied that the Australia Post collection card in relation to the notice of intention to cancel letter had been stolen as the applicant suggested. It had regard to the fact that it had found that the applicant received the visa cancellation decision letter and considered it more likely that the earlier collection card had been misplaced inside his home. In any event, in the circumstances of the case the Tribunal did not consider that the applicant’s inability to be aware of his mail and hence of a possible visa cancellation letter was something beyond his control.
The Tribunal also considered Ministerial Direction No 38 Guidelines for Considering Cancellation of Student Visas, but found no information before it as to particular political upheaval or natural disaster in the applicant’s country of origin (China) which had affected his ability to comply with condition 8202.
The Tribunal concluded that it was satisfied that Mr Feng had not complied with condition 8202 and that the non-compliance was not due to exceptional circumstances beyond his control. Hence it affirmed the decision to cancel the applicant’s student visa.

These Proceedings

The applicant sought judicial review by application filed in this court on 24 August 2010. Subsequently he filed an amended application which contained four grounds. In written submissions for the applicant it was stated that ground three was not pressed. Counsel for the applicant also clarified that insofar as ground one raised issues of “substantial compliance”, those contentions were not pressed.
In the course of the hearing Mr Bevan for the first respondent drew to the attention of the court the decision of Lander J in Leung v Minister for Immigration and Citizenship (2010) 114 ALD 255; [2020] FCA 268, which had been referred to in the respondent’s pre-hearing written submissions as a case in which the provisions in s.116 of the Migration Act and reg.2.43 of the Migration Regulations had been considered. Leung had not been addressed in the submissions for the applicant, but, Mr Bevan raised the issue of whether the applicant sought to address the possible application of the approach taken in Leung to the present circumstances.
At that stage, Mr Kumar for the applicant indicated that he sought leave to file a further amended application raising an additional ground. Leave was granted. A further amended application was filed on 4 March 2011. The parties were given, and took, the opportunity to make post-hearing written submissions in relation to the additional ground. While the amended application stated that the applicant sought an extension of time under s.477 of the Migration Act, the application was filed within the time provided in s.477(1) of the Act. No extension of time is required.

Whether the Tribunal failed to have regard to a relevant consideration

Ground one in the further amended application is as follows:
The Tribunal committed jurisdictional error by failing to consider the impossibility of the applicant enrolling in a registered course so that the applicant was compliant with the applicant’s subclass 572 visa [and condition 8202 of the Regulations] the Tribunal failed to have regard to the impossibility of the applicant obtaining enrolment when the applicant did not have his passport in the relevant period the applicant was allegedly non-compliant and has thus erred in taking into account (sic) an exceptional circumstance beyond the applicant’s control and/or has failed to properly construe Reg 2.43(b)(ii) (sic) when the applicant had completed the term and the courses he was enrolled in and otherwise precluded by the exceptional circumstances.
Particulars
The Tribunal failed to take into account that pursuant to ESOS Act & Regulations the applicant, without the passport being on hand precluded the applicant from enrolling in a registered course or applying for another category of visa.
The (sic) misconstrued the law as requiring the Tribunal to strictly construe the applicant’s non-enrolment for a very short period when the holiday had ensued and failed to have regards (sic) to the fact that the applicant was in substantial compliance with sub-class 572 visa and in particular failed to have regards to the fact that the applicant had completed 2009 academic year and was on holidays when the visa was cancelled (erred in applying Liu att [64] and Jayasegara’s (sic) case).
Other than giving consideration to compliance, the Tribunal only had regard to some aspects of exceptional circumstances but did not give consideration to all the facts required of it to consider whether there was substantial compliance (such as the significance, whether there was deliberate flouting of the law together with the nature of the breach or the degree of
non-compliance when the applicant was precluded from enrolling owing to a related requirement (ESOS Act/Regulations).
In oral submissions counsel for the applicant confirmed that despite the particulars and his written submission to the effect that the issue of “substantial compliance” was of significance, those contentions were not pursued. Such a concession was correctly made. Insofar as counsel for the applicant nevertheless sought to address issues of substantial compliance, as counsel for the first respondent submitted, there is no room for the operation of the doctrine of “substantial compliance” in relation to the decision as to cancellation of Mr Feng’s student visa. The applicant’s contentions appear to be based on the fact that the criteria for a subclass 572 visa contained in Schedule 2 to the Migration Regulations include a criterion (in cl.572.333) that the visa applicant has “complied substantially” with the conditions that apply or applied to the last substantive visa held by the visa applicant and to any subsequent bridging visa. However such a criterion applies to the grant of a visa. In this case what is in issue is not the refusal of a visa application but rather a visa cancellation. The concept of “substantial compliance” in cl.572.333 has no relevance to the grounds for cancellation. What was in issue was whether the visa holder was enrolled in a registered course, not whether he had substantially complied with the conditions to which his visa was subject. Moreover, there is no suggestion that the applicant raised with the Tribunal an issue of substantial compliance amounting to exceptional circumstances beyond his control as a reason for his non-enrolment.

Insofar as this (and the next) ground may be seen as purporting to raise discretionary considerations relevant to a cancellation under s.116(1)(b) of the Act where a visa holder has not complied with a condition of the visa, in this case the Tribunal found that s.116(3) was applicable. That subsection provides:
….If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
The arguments put for the applicant in relation to his asserted “substantial compliance” may be matters that could be raised with the Minister under s.351 of the Act. However the Tribunal was not required to consider whether there was substantial compliance with condition 8202(2)(a) when determining whether it was satisfied that the visa holder had not complied with condition 8202 and that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control such as to constitute prescribed circumstances within reg.2.43(2) in which the visa must be cancelled.
Counsel for the applicant also submitted that the applicant had advised the Tribunal that he could not enrol in a registered course without his passport, but that the Tribunal had failed to consider this matter.
The only evidence of what occurred in the Tribunal hearings is the Tribunal reasons for decision. The material before the court does not establish that the applicant put to the Tribunal any claim that he could not enrol in a course of study because he had surrendered his passport. Rather, the Tribunal recorded that the applicant referred to the fact that his passport was held by the police as an obstacle that had prevented him from sitting an English language test (an IELTS test) as a prerequisite to a possible application for another type of visa. This was said to be his “original plan” before he was charged and his passport confiscated. He also told the Tribunal there were “new laws” that meant he had to study again in 2010. This appears to be a reference to changes in the circumstances in which holders of student visas could apply for permanent residence. In other words, the evidence before the court is that the absence of a passport was not raised (either expressly or impliedly) as an explanation for non-compliance with condition 8202 consisting of the applicant’s failure to be enrolled in a registered course of study.
The essential reasons given by the applicant for his non-compliance with cl.8202(2)(a) were that he was awaiting the outcome of his criminal court case and that he did not have the money to enrol in his course. Despite ample opportunity over the course of two hearings to raise any other issues, there is no evidence before the court that the applicant put to the Tribunal that another reason for his non-enrolment was because he did not have his passport. There is no evidence that possession of a passport was a necessary prerequisite to enrolment in a registered course or that such a claim was made to the Tribunal such as to oblige the Tribunal to consider whether the fact that the police held the applicant’s passport was an exceptional circumstance beyond his control that caused his failure to be enrolled in a registered course. In these circumstances it has not been established that the Tribunal erred in failing to consider a proposition or circumstance that was not put to it.
The applicant also sought to rely on the fact that certain information has to be provided to the Secretary of the Department of Education, Employment and Workplace Relations by the education provider under s.19(1) of the Education Services for Overseas Students Act2000 (Cth) (ESOS Act) and reg.3.01 of Division 3.1 of Part 1 of the Education Services for Overseas Students Regulations 2001 (Cth). It was submitted that some of the information required under the regulations could only be provided by reference to a passport, which the applicant did not have with him in the relevant period.
Again, no such contention was put to the Tribunal. In any event, what the ESOS Act and Regulations require is that the student’s passport number and visa number be recorded. They do not, on their face, impose a requirement to produce the passport itself. It has not been established that the Tribunal erred in failing to consider expressly whether pursuant to the ESOS Act and Regulations (or otherwise) the applicant was precluded from enrolling in a registered course by the fact that he did not have possession of his passport.
Insofar as the applicant’s submissions take issue with whether the delegate had regard to such matters, the application before the court is for review of the Tribunal decision.
Counsel for the applicant seemed to suggest that the Tribunal was obliged to consider whether the absence of a passport prevented the applicant from applying for another category of visa. However what was in issue was whether the applicant’s failure to be enrolled in a registered course was due to exceptional circumstances beyond his control, not whether his inability to sit for an IELTS test (and hence apply for another type of visa) was due to the absence of a passport.
On the material before the court it has not been established that the Tribunal erred in not considering or taking into account as an exceptional circumstance beyond the applicant’s control what was described for the applicant as the “passport issue”, given the applicant’s failure to raise such an issue with the Tribunal and the absence of any claim or evidence to suggest that the fact that he did not have his passport in his possession would have prevented him from enrolling in a registered course of study.
Ground one is not made out.

Whether the Tribunal misconstrued the law

The second ground in the further amended application is as follows:
…the Tribunal’s decision is affected by jurisdictional error in failing to have regard to the fact that the applicant, at the conclusion of the term and the completion of the applicant’s (sic) was entitled to apply other categories (sic) of visa should have found that the non-enrolment was owing to the term not commencing and at time when the applicant could remain unenrolled for period of 6 months to apply. The Tribunal misconstrued the law.
Particulars
The applicant says that the applicant was entitled to lodge Subclass 885 visa (per “eligible visa”). The Tribunal further erred in failing to have regard to whether within 6 months from the completion of previous course and the applicant had current visa expiring on 15 March 2010 which permitted the applicant to lodge the above visa and these regulations have been incorrectly interpreted by the Tribunal and it erred in the consideration of the law as the applicant had completed Diploma in Hospitality Management that he was eligible within 6 months following completion to lodge for the above subclasses (sic) (this erring in the interpretation of the law); the Tribunal also did not also have regard to the consideration that the applicant needed the passport to make the application. Such application requiring the applicant to have the passport (sic).
As counsel for the first respondent submitted, the precise legal error alleged by this ground is far from clear. Much of what is contained in the applicant’s written submissions appears to relate more to ground one than to ground two. I have, however, considered the submissions in light of ground two as well as ground one.
Insofar as the applicant repeated arguments already addressed in relation to ground one concerning the absence of his passport those arguments do not establish jurisdictional error on the basis contended for in ground two.
Counsel for the applicant submitted that the Tribunal “erred in strictly construing the applicant’s non enrolment for a very short period” when the academic year had ended and a holiday ensued, that it failed to have regard to the fact that the applicant was in substantial compliance with his subclass 572 visa conditions, or to the fact that he had completed the course on 27 November 2009 and was on holidays when his visa was cancelled. It must be said that this submission also appears to relate more to the particulars to ground one and, as set out above, the issue of substantial compliance is not of direct relevance in relation to mandatory cancellation of a visa under s.116(3) of the Act.
The main aspect of this ground is a contention that the Tribunal erred in construing cl.8202(2)(a) as requiring the applicant to be enrolled at all times in circumstances in which Departmental policy was said to impose no such requirement.
The applicant submitted that the Tribunal had erred in interpreting the Regulations and the Act and in its application of Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170, and Jayasekara v Minister for Immigration and Citizenship (2006) 156 FCR 199; [2006] FCAFC 167 as requiring the visa holder to be enrolled at all times. It was contended that the “proper legal position” was encapsulated in Departmental policy.
The applicant submitted that Liu’s case was distinguishable “as the student in that case was not enrolled whilst the student had continuing with the degree and was some way towards completing a Bachelor’s degree (sic)”. It was contended that Mr Feng had completed the course for which the visa was issued, that different considerations applied, that Liu’s case turned on a different set of facts and that the Tribunal erred in following Liu’s case.
It was also submitted that the requirement in condition 8202 should be read “liberally”. Reliance was placed on the decision of the Federal Court in Shrestha v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 669; [2001] FCA 359 at [17]. The applicant again contended that he was substantially compliant and submitted that Jayasekara ought to be distinguished. The applicant submitted that it was relevant that his visa was to expire on 15 March 2010, that he had previously been enrolled in a course and that he completed the study for which the visa in question was issued.
In written submissions it was contended that implicit in the visa period was that there was an “additional period that is available is to enable the students to organise departure or indeed make application for further studies” consistent with Departmental policy in the Department’s Procedures Advice Manual (PAM) entitled “Student Visa Holders and Applications for Skilled Migration – Guidelines on Compliance with 8202”. It was said that the Department had issued such policy and that it was correctly formulated in accordance with law. That policy relevantly states that:
…The general principle is that students who complete the full course of study for which they were granted a student visa should be allowed to remain on a student visa…
It was submitted that the Tribunal fell into jurisdictional error in interpreting the “relevant legislation” by neglecting to follow such policy and holding that during what was said to be a short period following completion of the applicant’s studies before the visa expiry date the applicant had to be continuously enrolled. It was contended that there was no breach within s.116 of the Act.
The applicant contended first that the Tribunal had failed to address whether there was a possibility of the applicant enrolling in a registered course so that the applicant was compliant with his visa in the short period of Christmas and New Year holidays as well as whether it was possible for him to obtain enrolment when he did not have his passport during such period.
The applicant also submitted that at the conclusion of the course he was entitled to apply for another category of visa, that the subsequent term had not commenced and that he could remain unenrolled for a period to apply for another student visa.
It was submitted that the Tribunal erred in failing to properly construe reg.2.43(b)(ii) (which is clearly intended to be a reference to reg.2.43(2)(b)(ii)) when the applicant had completed the course he was enrolled in and was precluded from enrolling in another course by what were said to be exceptional circumstances such as the need to have his passport to enrol.
More generally it was submitted that the applicant had a valid visa, he just completed his studies and that it was not consistent with the Migration Act, in circumstances where there was no evidence of unsatisfactory completion of the course, for the visa to be cancelled simply because the applicant was not enrolled in a course and that s.116 should not be construed in such a manner.
First, insofar as it was suggested that the Tribunal erred in referring to Liu as requiring continuous enrolment, the context in which it referred to Liu was as follows:
Condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA 2003 FCA 1170.
In Liu, Cooper J considered a slightly different version of condition 8202 in the context of judicial review of a decision of the Tribunal affirming a delegate’s decision to cancel a student visa based on a breach of the requirement in condition 8202(2)(a) that the visa holder “is enrolled in a registered course”. That is the requirement in issue in this case. Hence Liu is directly in point.
The applicant in Liu did not enrol in the May 2002 semester at the university he had previously been attending and was not, at the time of cancellation of his visa, enrolled in a registered course. The applicant had told the Tribunal that he intended to change his course. After the date of cancellation he accepted an offer of a place in a different university course. The Tribunal found that he had not complied with condition 8202(2)(a).
In Liu, as in this case, the issue before the court was whether the Tribunal had erred in interpreting condition 8202 as requiring that the applicant must maintain enrolment in a registered course at all times during the currency of the visa, rather than interpreting it as not prohibiting short gaps in enrolment in a registered course in certain circumstances. It had been submitted that the Tribunal had erred in failing to interpret s.116(1) of the Act and reg.2.43(2)(b) of the Regulations in such a way that those provisions would not necessarily be breached where there was a short and temporary gap in a student’s enrolment in a registered course. The same argument is put in this case.
Similarly, it was also contended before the Federal Court in Liu that a purposive construction to the legislation should be adopted, consistent with what had been said by Madgwick J in Shrestha, on the basis that a literal construction of condition 8202 would be inconsistent with the purpose of student visas (at [12]).
However, relevantly, Cooper J pointed out in Liu at [13] that:
The power to cancel a visa requires satisfaction of the applicable provisions of s 116 of the Act. That requires that the Minister (or his or her delegate) be satisfied of one of the circumstances specified in s 116(1). For present purposes that involves satisfaction that the ‘holder has not complied with a condition of a visa’. The ordinary meaning of the words in the context does not mean that the Minister be satisfied that there be substantial non-compliance. It requires simply that the requirements of the condition of the visa be ascertained as a matter of the proper construction of the visa condition and, that having been done, it be determined whether the factual circumstances as found by the Minister satisfy him or her that the holder of the visa has not complied with the condition.
The same may be said in this case. Liu was a decision at first instance. Whether or not I am, strictly speaking, bound to follow such a decision (see Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 141 FCR 586; [2005] FCAFC 41 at [35] – [39] but cf. Suh v Minister for Immigration and Citizenship (2009) 175 FCR 515; [2009] FCAFC 42 at [29]) I am not persuaded either that it is clearly wrong or that it can be distinguished as suggested for the applicant. It is directly in point. Even if I am not bound by the approach taken by Cooper J in Liu (a matter on which I was not addressed) I would nonetheless follow it in the interests of judicial comity (see Muliyana v Minister for Immigration & Anor [2009] FMCA 691 at [35] – [37]). It has not been established that the Tribunal erred in interpreting condition 8202(2)(a) as requiring the applicant to be enrolled at all times in accordance with Liu.
In Liu Cooper J referred to both the discretionary power to cancel a visa under s.116(1) and the mandatory power under s.116(3) of the Act. In that context, and relevant to the applicant’s contentions in this case, his Honour pointed out that reg.2.43(2) was to give effect to s.116(3) of the Act and found (at [14]) that that regulation did not, as a matter of construction, import a requirement of substantial non-compliance. On this basis his Honour found, and the same may be said in this case, that the issue for the Tribunal was to determine “what the requirements in condition 8202 consisted of, and whether, on the facts as found, the decision maker was or was not satisfied that the applicant had complied with those conditions” (at [16]).
Cooper J construed condition 8202 in the context of the legislative objective of the provision of student visas for overseas students for the purpose of study in Australia. His Honour had regard to the language of condition 8202 in finding that each of the requirements of the condition as it then stood (including that the holder “is enrolled in a registered course” which is the same as the present requirement in condition 8202(2)(a)) related to a “continuing state of affairs” (at [19]). This was said to be directly referable to the purpose for which the visa was granted, being satisfactory progress to and towards completion of a full time course of study or a registered course.
His Honour continued in Liu at [19]:
Failure to satisfactorily pursue such a course by reference to the criteria contained in condition 8202 is a failure to comply with the condition. In the context of condition 8202, enrolment in a course is a continuing requirement. It is a precondition to the later requirements of satisfactory attendance and academic achievement. Whether or not the holder of a student visa is enrolled in a full time course of study or is enrolled in a registered course, is a question of fact in each case.
In my view, the same must be said in relation to condition 8202(2)(a) as presently worded. Moreover, as Cooper J observed in Liu at [20], such a construction:
…renders no hardship on a student visa holder who wishes to discontinue a course or enrol in another registered course different from that in which the holder was enrolled at the time of the grant of the visa. It requires simply that the visa holder take such steps as are necessary under the Act to ensure that he or she has or obtains an appropriate visa to enable the holder to discontinue a course or enrol in another registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course. Nor is such a construction inconsistent with the statutory purpose of the grant of student visas; nor inconsistent with the terms of s116(1) and s116(3) of the Act.
There is no basis to distinguish the approach taken in Liu and the Tribunal’s application of Liu discloses no error. On the approach taken in Liu (with which I agree) ground two is not made out.
The decision in Shrestha concerned the question of satisfactory attendance under an earlier version of condition 8202 in the context of a statutory regime which is no longer applicable (see Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 at [58]-[59]). It does not assist the applicant. Jayasekara involved an application for a visa. The Court was concerned with whether the applicant had complied substantially with the condition which required him to achieve an academic result that was certified by the education provider to be at least satisfactory. That is of no relevance in the present circumstances.

The applicant also contended that the Tribunal erred in failing to have regard to whether he was entitled to apply for another visa or visas within the six months following either the completion of his course or the expiration of his visa (consistent with what was said to be Departmental policy). However I accept that, as submitted for the first respondent, the applicant’s reliance on Departmental policy in this respect is misplaced.
A copy of part of the Departmental policy from the Department’s PAM was tendered at the hearing. The part of the PAM relied on by the applicant was section 113 (not 115) of the part of policy relating to “Condition 8202 – Enrolment and Course Requirements” at the time of cancellation. It was subsequently numbered 115. The relevant section was entitled “Student Visa Holders and Applications for Skilled Migration – Guidelines on Compliance with 8202” and was as follows at the time of cancellation of Mr Feng’s visa:
Where a student completes their course of study and lodges an application for skilled migration, they will be granted a Bridging Visa A in association with the application. The BVA however, will not come into effect until the Student Visa expires. Therefore, the applicant remains subject to student visa conditions until such a time as their visa expires, or their application for skilled migration is granted.
The following guidelines provide advice for officers in relation to dealing with students who remain on a student visa while awaiting an outcome on a skilled migration application. The general principle is that students who complete the full course of study for which they were granted a student visa should be allowed to remain on a student visa, while visa cancellation and subsequent bridging visa applications should be considered for those who don't complete the full course of studies for which they were visaed. (Emphasis added).
In other words, the part of the policy relied on was policy applicable where a student had completed his or her course of study and had lodged an application for skilled migration. That was not the situation in the present case. The applicant had not made an application for a skilled migration visa. Absent any evidence of a valid application for a skilled migration visa at the time in question there is nothing implicit in the student visa or the conditions applicable which contemplates an allowance of an additional period of time after any enrolment had ceased to enable students to re-enrol or to make a further visa application (see Liu). Moreover, even if there were an inconsistency between the statutory regime and policy, the statutory regime would prevail.
Whether or not the applicant could apply for a different class of visa in order to maintain his status as a lawful non-citizen is not indicative of jurisdictional error on the part of the Tribunal in relation to the decision in question. Such a possibility has no bearing upon whether the applicant complied with condition 8202 or on whether any non-compliance with the requirement that he be enrolled in a registered course was due to exceptional circumstances beyond his control.
As indicated above, the evidence does not establish that a student visa holder had to have possession of his or her passport to enrol in a registered course. Further, there was no obligation on the Tribunal to make inquiries about possible courses of study in which the applicant might have enrolled.
It has not been established that the Tribunal erred in finding that the applicant was not enrolled in a registered course on 23 February 2010 and that he therefore was not in compliance with cl.8202(2)(a).
Ground two is not made out.
Ground three was not pressed.

Section 359A of the Migration Act

The fourth ground in the amended application was that the Tribunal committed jurisdictional error in failing to comply with s.359A of the Migration Act in that it:
failed to give particulars and invite the applicant to state why there was (sic) no “exceptional circumstances” and that it was considering making a finding on this basis.
In written submissions counsel for the applicant also raised an alternative contention that the Tribunal breached s.360 of the Migration Act. However in oral submissions he confirmed that he did not press the submission. Somewhat surprisingly in these circumstances and outside the leave granted in relation to the further amended application, the further amended application contains an additional claim in ground four that the Tribunal also failed to comply with s.360 of the Act. This purported addition was not addressed in the applicant’s outline of supplementary submissions. It is not clear why, contrary to the acknowledgment by counsel for the applicant in oral submissions that any contention that there was a breach of s.360 was not pressed, it now appears in the further amended application.
In any event, to the extent that this involves a submission that the Tribunal “failed to allow the applicant” to provide evidence in relation to matters on which the decision turned, such a contention is not made out. There is nothing in the material before the court to support any contention that the Tribunal failed to comply with s.360 of the Act or to raise with the applicant determinative or dispositive issues in the course of the hearing (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63). The only evidence before the court of what occurred in the Tribunal hearings is the Tribunal reasons for decision. It appears from that evidence that there were two hearings before the Tribunal and the applicant was given every opportunity to address his claims and to submit further material after each hearing. It can be inferred that the Tribunal raised with the applicant the issue of whether there were exceptional circumstances beyond his control which led to the breach of condition 8202, that is, not being enrolled in a registered course.
Insofar as it is alleged that the Tribunal failed to comply with s.359A of the Act, this submission appears to be made on the basis that the Tribunal was under an obligation to inform the applicant that it was considering making a finding on the basis that there were no exceptional circumstances. As pleaded, this ground does not identify any information within s.359A(1) of the Act. There was no obligation on the Tribunal to disclose its subjective appraisals, thought processes or determinations (See SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [17] to [18]).
In oral submissions, counsel for the applicant appeared to submit that there was a failure by the Tribunal to comply with s.359A of the Act in circumstances where there was said to be a departure from the ordinary policy, as reflected in the PAM referred to above. However, as discussed above, that policy relates to situations where there is an application for a skilled migration visa on foot. It is not applicable in the present case and there is nothing in the circumstances of this case to support any contention that the Tribunal was in some way obliged to put this policy or an intended departure from this policy to the applicant for comment under s.359A as the reason or part of the reason for affirming the decision under review. Ground four is not made out.

Whether jurisdictional error in the manner in which the Tribunal made findings about the matters in reg.2.43(2)

As indicated, after Mr Bevan for the first respondent drew to the court’s attention issues raised by the decision of the Federal Court in Leung, Mr Kumar for the applicant sought leave to rely on a further amended application raising an additional ground. Leave was granted. The additional ground in the further amended application is as follows:
The Tribunal committed jurisdictional error when it failed to properly ascertain, assess and make finding in respect of issues raised by the applicant which were matters going to issue of exceptional circumstances in relation to the non-enrolment by the applicant, in particular matters (instead addressing irrelevant considerations and coming to the conclusion without properly addressing these matters in “logical fashion”) or failing to consider relevant considerations:
(1)    Holding of the passport by the Police (“passport issue”);
(2)    Court proceeding and pending sentence (“court proceeding and sentencing issue”);
(3)    The lack of funds to enrol in a registered course (“lack of funds” issue);
(4)    Whether any registered course was available in the period in which the applicant was not enrolled.
Particulars
In relation to these relevant matters, the Tribunal failed in identifying those matters relating to the issue of exceptional circumstances; the Tribunal failed to make the finding whether these matters constituted exceptional circumstances and the Tribunal failed to logically address whether these matters were matters within the applicant’s control. The Tribunal erred in affirming the First respondent’s finding (the consequence the applicant was not enrolled, therefore, breach of condition 8202 had occurred (sic)); the Tribunal failed to address whether any of the issues impacted on ability to enrol in a registered course and/or failing to address the question of control in relation to these issues.
In post-hearing written submissions the applicant contended that the Tribunal committed jurisdictional error in its assessment and findings in relation to exceptional circumstances, as it was required to address the issues going to exceptional circumstances in a “logical fashion” and also to provide the applicant with the opportunity to address these issues. Insofar as the second part of this submission is an attempt to justify the inclusion of a reference to s.360 in ground four of the further amended application, as indicated, the evidence before the court does not establish that the Tribunal failed to bring dispositive issues to the attention of the applicant during the hearing.
The crux of this ground appears to be a contention that the Tribunal failed to properly ascertain, assess and make findings in respect of matters said to have been raised by the applicant going to whether there were exceptional circumstances in relation to his non-enrolment. Reliance was placed on Leung insofar as it was contended that the Tribunal addressed irrelevant considerations and came to a conclusion without addressing the necessary matters in a logical fashion.
The applicant claimed that the Tribunal failed to consider relevant matters in relation to the fact his passport was held by the Police, the court proceedings and sentencing, his claimed lack of funds to enrol and whether any registered course was available in the period in which the applicant was not enrolled.
The applicant reiterated his earlier submissions in relation to his passport. The Tribunal was said to have failed to address whether this matter constituted exceptional circumstances that was beyond his control in the context of reg.2.43. It was submitted that the Tribunal was required to assess whether the holding of the applicant’s passport by the police was the cause of the applicant’s non-compliance with condition 8202. It was also said that the Tribunal had failed to address whether this was a matter within the control of the applicant. The applicant’s written submissions continued:
In relation to the passport issue the applicant contends that Tribunal erred in identifying as a matter being squarely put as affecting the ability to enrol in a registered course (sic). The Tribunal did not address this matter contributed to the applicant’s non-compliance with condition 8202 (sic).
This submission is not clear, but it appears that it is intended to be contended that the Tribunal erred in not considering such a matter as a possible exceptional circumstance as it arose squarely on the material before the Court. It was also submitted that the Tribunal had failed to carry out its task in relation to the passport issue, instead preferring “a global approach” in arriving at its findings.
In addition, counsel for the applicant submitted that the Tribunal erred in making a finding that there was nothing preventing the applicant from enrolling in another course without properly addressing whether the pending court proceeding and sentencing matter was an exceptional circumstance that prevented the applicant from enrolling and that this was not dealt with in a logical fashion.
Further, it was contended that as the applicant put to the Tribunal that his lack of funds to enrol in a registered course was an explanation for why he was not enrolled, the Tribunal should have addressed whether this constituted exceptional circumstances and whether it was within the applicant’s control, but that it had failed to address this issue in the manner required or in a “logical fashion” as stated by Lander J in Leung. It was contended that although the Tribunal made the finding that “…there was nothing preventing the applicant asking for these funds at an earlier time…” that did not address the issue of whether this was beyond the applicant’s control. It was also submitted that the Tribunal had failed to approach this issue in the “appropriate fashion” by making inquiries and a finding as to whether this issue constituted exceptional circumstances which contributed to the failure to comply and whether this was within the applicant’s control.
The applicant also contended that the Tribunal ought to have “enquired” whether any registered course was available in the period the applicant was not enrolled and that it ought to have addressed this issue in “formalistic fashion” as was said to be stated in Leung. It was submitted that the fact that the applicant enrolled in the 2010 course slightly late was otherwise an irrelevant consideration.
The essence of the applicant’s contention in ground 5 is that the Tribunal erred by failing to make findings as to whether each of these particular circumstances were exceptional; whether they were the cause of the non-compliance with condition 8202; or whether they were each beyond the applicant’s control. It was suggested that in finding the “applicant’s decision not to enrol in a registered course after 27 November 2009, and before 4 March 2010, to be wholly within his control” the Tribunal erred in dealing with the matter globally instead of identifying and dealing with the matters that impacted on the issue of control. The applicant’s post-hearing submissions referred to Leung at [41] in this context and to Leung at [33] and [41] in support of the proposition that the Tribunal was required to address the issues going to exceptional circumstances in a “logical fashion”. The first respondent’s subsequent supplementary submissions addressed Leung in more detail, contending that it could be distinguished. The applicant then responded. I have considered all of the submissions in this respect.
In Leung, the breach of condition 8202 that gave rise to cancellation of the student visa in question was that the educational institution had certified that the visa holder had not achieved satisfactory course attendance for s.19 of the ESOS Act and Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Overseas Students. This was a breach of condition 8202(3)(b) (which refers to such a certification by the education provider as constituting a breach). In contrast, in this case condition 8202(2)(a) was breached because the visa holder was not enrolled in a registered course.
Nonetheless in Leung, as in this case, the effect of sections 116(1)(b) and 116(3) and reg.2.43(2)(b)(ii) was that the visa must be cancelled if the decision-maker was satisfied that the visa holder had not complied with condition 8202 and that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
Relevantly, Mr Leung had raised with the delegate the distance he had to travel from his home to college, the fact that weather and traffic meant he often got to college late and was marked as being late and also that he had absented himself from lectures because of stomach problems. The Migration Review Tribunal concluded that neither of those reasons amounted to exceptional circumstances. No issue was taken with that aspect of the Tribunal findings on judicial review.
Before the Tribunal, the appellant in Leung had also claimed the real reason he was unable to attend to his studies was his grandmother’s illness. He claimed that his grandmother had become ill, that he wanted to return to Hong Kong, but his parents insisted he continue with his studies, his grandmother died, he became depressed and that his illness made him homesick which affected his studies.
Notwithstanding doubts about the credibility of this claim, the Tribunal did not reject Mr Leung’s claim about his grandmother’s illness and death and the effect upon his health. It accepted that it was genuine (Leung at [22]). However the Tribunal concluded that Mr Leung was aware that the impact of his grandmother’s illness was affecting his studies (including his attendance) and found that it was within his control to seek assistance, whether from the college or a medical professional to address his problem. The Tribunal in Leung also considered it was in the applicant’s control to raise the issue of the effect of his grandmother’s illness on his attendance when he lodged an internal appeal with his education provider and to provide details of the circumstances he considered caused his poor attendance to the Department when responding to its notice of intention to consider cancellation (Leung at [21]).
It appears that this was the full extent of the Tribunal’s consideration of these issues in Leung. According to Lander J at [27] the Tribunal:
…proceeded upon the unstated assumptions that the circumstances, which included the appellant’s unhappiness and depressed mood and resultant homesickness, amounted to exceptional circumstances and that they had led to the appellant’s non-compliance with Condition 8202, and addressed the question whether those exceptional circumstances were beyond the appellant’s control.
Importantly, his Honour was of the view that the Tribunal had concluded that these circumstances were not beyond Mr Leung’s control “because he could have taken the actions referred to…to alleviate his unhappiness and depressed mood” (at [28]). In other words, the Tribunal had addressed whether it was within the applicant’s control to seek assistance from the education provider, raise the issue on appeal with the education provider or to provide details of the circumstances to the Department. It had not addressed whether the non-compliance in question (the certification that Mr Leung had not achieved satisfactory course attendance) was due to his grandmother’s illness and death and the effect on Mr Leung’s health.
It was in this context that Lander J stated at [30] – [31] that, assuming the Tribunal had proceeded on the unstated assumption that the grandmother’s illness and death and the effect upon the applicant’s health were exceptional circumstances, it needed to consider whether his non-compliance with condition 8202 was due to these exceptional circumstances and, if so, whether the exceptional circumstances were beyond the appellant’s control. However the Tribunal had not made any findings as to whether the non-compliance was due to the exceptional circumstances, but rather had proceeded to consider the issue of control.
In the particular circumstances of Leung Lander J considered (at [32] – [33]) that the Tribunal should have made findings as to whether it accepted that Mr Leung had made out “exceptional circumstances”; whether it accepted his non-compliance with condition 8202 was due to those exceptional circumstances and that lastly it should have addressed the question of control. Relevantly, his Honour suggested in Leung at [33] that it was necessary to proceed in that “logical fashion” because each finding informed the issues that followed.

What was meant by this is apparent when consideration is given to the actual circumstances and findings in question in Leung. As Lander J pointed out at [34] – [40], the non-compliance in question in Leung was the education provider giving a certificate that Mr Leung had not achieved satisfactory progress. However, while the Tribunal had considered whether the appellant’s health was within his control, it made no finding that if he had sought assistance from his education provider or a medical professional he would have received such treatment that would have enabled him to keep an attendance record that would have meant that he complied with the part of condition 8202 in issue in Leung. His Honour found (at [37]) that, in the absence of such a finding, the Tribunal had in fact failed to address the issue of control, even if it assumed the matters of exceptional circumstances and that the non-compliance was due to the exceptional circumstances. In other words, there was a lack of logic in the Tribunal’s reasoning in relation to whether the particular breach in issue was caused by circumstances beyond the applicant’s control.
Moreover, his Honour suggested at [38] – [39] that the fact that the appellant could have raised the issue of the impact of his grandmother’s illness with his education provider and the Department were not relevant considerations, as the certification and prescribed circumstances which obliged the Minister to cancel the visa had already occurred at the time the Tribunal said Mr Leung could have raised these issues with his education provider or with the Department. Lander J pointed out that the Tribunal had not made any finding that if the visa holder had taken the action suggested by it that the certification could or would have been withdrawn or that the visa cancellation could or would have not occurred (at [40]).
It was in those particular circumstances that Lander J found in Leung that the Tribunal “did not decide all three issues that needed to be addressed to determine whether reg 2.43 was engaged” (at [41]). His Honour concluded that the Tribunal had not determined whether the circumstances relied on by the appellant were exceptional circumstances and whether those circumstances were the cause of non-compliance with condition 8202 and critically, that although it “purported to inquire into whether the circumstances which it accepted were beyond the appellant’s control” it “did not complete the inquiry” (at [41]).
In this instance, in its findings and reasons the Tribunal considered the applicant’s stated reasons for non-compliance (the fact that he was awaiting the outcome of the criminal case before he enrolled and also that he did not have money to pay for the school fees) by turning directly to the issue of whether those circumstances were beyond the applicant’s control. The applicant’s contention appears to be that the Tribunal was required to address expressly whether these matters, the “passport issue” and the question of whether other registered courses were available were exceptional circumstances and whether they were the cause of non-compliance with condition 8202 and then whether the circumstances which it accepted were beyond Mr Feng’s control.
First, insofar as the applicant contended that the Tribunal erred in relation to what is described as the “passport issue”, as discussed above the applicant did not suggest to the Tribunal that a reason for his non-enrolment was because he did not have his passport. The fact that he raised the absence of his passport in connection with an alleged inability to undergo an IELTS test as a step towards a possible application for some other kind of visa was not such as to raise for consideration by the Tribunal whether it was satisfied that this was a reason for the applicant’s non-compliance with the condition on his student visa that required him to be enrolled in a registered course. Insofar as the applicant appears to suggest that the Tribunal was put on inquiry as to whether the absence of the applicant’s passport was an issue relating to exceptional circumstances, although it was raised in another context, the applicant did not claim that the absence of his passport was a reason for non-enrolment. Rather, he said he knew he had to study in 2010 (not only because he needed a passport to sit an IELTS test, but also because there were new laws about applications for other types of visas). The fact that the issue of the police holding the applicant’s passport was raised in relation to whether the applicant could undertake an IELTS test does not mean that the Tribunal erred in failing to consider it as a potential exceptional circumstance causing his non-enrolment. The Tribunal was aware of this claim when it made its finding that it was of the view that there was nothing preventing the applicant from enrolling in a course prior to his court case being finalised. There is no evidence that there was anything before the Tribunal to suggest that a student visa holder could not enrol in a course in circumstances where he did not personally hold his passport at the time of enrolment. Such a contention is not made out.
Insofar as the applicant’s submissions appear to suggest that he was self-represented, I note that the applicant had the assistance of a registered migration agent during the course of the Tribunal review.
The applicant also submitted that the Tribunal erred in its failure to consider whether any registered course was available in the period in which the applicant was not enrolled as a matter relevant to reg.2.43(2)(b)(ii). Again this is not a matter that was put to the Tribunal by the applicant as a reason for his non-enrolment. The Tribunal was under no duty to make inquiries about such an issue (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39). The mere fact that the applicant had finished his current course and had to be enrolled in a registered course in order to comply with condition 8202 was not such as to oblige the Tribunal to make inquiries as to whether any registered course was available in which he could enrol at the relevant time.
Hence no issue of jurisdictional error on the basis contended for in ground 5 arises in relation to either of those issues. Insofar as it is contended that the Tribunal failed to have regard to relevant considerations in this respect this ground is not made out.
What remains for consideration is whether the reasoning in Leung compels a conclusion that the Tribunal fell into jurisdictional error in the manner in which it considered the factors that were raised by the applicant as reasons for his failure to enrol in a new course, in particular his claims he did not have enough money for his fees and that he was waiting for the outcome of his court case. In my view it does not.
In considering the Tribunal’s approach to whether it was satisfied that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control, it is necessary first to identify the particular non-compliance with condition 8202 that is in issue. Leung involved a breach of condition 8202(3)(b) which occurred when the education provider certified Mr Leung as failing to achieve satisfactory course attendance. In contrast in this case the part of condition 8202 that was in issue was cl.8202(2)(a) which relevantly provides that a holder meets the requirements of that subclause if “the holder is enrolled in a registered course”. In other words, no step by a third party intermediary (such as by way of provision of a certification) is involved. This is an important difference when considering the need for the Tribunal to proceed in a logical fashion to avoid falling into jurisdictional error by failing to complete the inquiry required by reg.2.43(3) (see Leung at [41]) or failing to exercise its jurisdiction in the manner in which it determined whether it was satisfied of the matters in reg.2.43(2)(b) in the particular circumstances of the case before it.
The Tribunal did state that it turned directly to the issue of whether the circumstances were beyond the applicant’s control, rather than setting out explicit findings in relation to whether the claimed circumstances were exceptional and whether such circumstances were the cause of the applicant’s failure to be involved in a registered course before then considering whether the circumstances were beyond Mr Feng’s control. However it is apparent on a fair reading of the decision that the Tribunal in fact considered both whether the circumstances in issue were beyond the applicant’s control and whether the non-compliance was due to circumstances beyond the applicant’s control and that its consideration does not involve any lack of logic, let alone a failure to exercise its jurisdiction.
A fair reading of the Tribunal reasons for decision as a whole is such as to satisfy me that the Tribunal assumed for the purposes of the decision or impliedly found that the two matters raised by the applicant were exceptional circumstances that were the cause of the non-compliance. It proceeded on that basis. In contrast to the circumstances considered in Leung this is not a case in which error or a lack of logic can be seen to have arisen in the absence of an express consideration of whether the circumstances were exceptional circumstances or whether they were the cause of the non-compliance.
A critical distinction between this case and Leung is that, as the reasons for judgment in Leung made clear, the Tribunal in that case did not properly address the question of control. As Lander J pointed out at [37], even if the Tribunal in Leung assumed that the circumstances were exceptional circumstances and that the non-compliance was due to the exceptional circumstances, it had failed to address the issue of control. However in this case not only can it be inferred that the matters raised by the applicant were considered by the Tribunal on the basis that if they were exceptional circumstances they were not circumstances beyond the applicant’s control that caused the non-compliance, but also no error is apparent in the Tribunal’s consideration of the issue of control.
In Leung the Tribunal had purported to inquire into whether the circumstances which it accepted were beyond the appellant’s control, but as Lander J found, it did not complete that inquiry. In essence, the Tribunal in Leung failed to address the issue of whether the non-compliance was due to exceptional circumstances beyond the visa holder’s control in light of its previous findings of fact. As Lander J pointed out at [37], the Tribunal had made no finding that if the appellant had sought assistance from the education provider or a medical professional, he would have received such treatment that would have enabled him to keep an attendance record that would have meant he complied with condition 8202. It was in the absence of a finding that he would have been able to keep an attendance record that would have meant that he had not breached condition 8202 that the Tribunal had failed to address the question of control in the manner in which his Honour saw as necessary, even if it assumed the other matters. Further, insofar as the Tribunal decided that the appellant could have raised the issue about the impact of his grandmother’s health with the education provider and the Department, this was said not to be a relevant consideration as the certification had already occurred at the time the Tribunal said he could have taken such action (at [39] – [40]).
However in this case the Tribunal squarely addressed the circumstances upon which the applicant relied, that is that he was awaiting the outcome of his criminal case and his lack of funds, in considering whether the non-compliance (the failure to be enrolled) was due to exceptional circumstances beyond the applicant’s control. Not only did the Tribunal find that it was the applicant’s choice not to enrol before the court case was finalised (in acknowledgment of his claim that the court case was said to be a reason for his non-enrolment) but also it did not accept that there was anything preventing the applicant from enrolling in a registered course prior to his court case being finalised. Contrary to the applicant’s contention, it addressed whether this issue “impacted” on his ability to enrol in a registered course. It rejected the contention that the non-compliance was due to circumstances beyond the applicant’s control.
Similarly, the Tribunal clearly accepted the applicant’s claim that he did not have funds, on the basis of his evidence that he asked his parents for the money after his court case had been finalised, hence also impliedly accepting that this was a reason for his non-enrolment. However it was of the view that the applicant's lack of funds at that time was not a matter beyond his control, because there was nothing stopping him from asking for the funds at an earlier time and hence enrolling at an earlier time. This finding must be seen in light of the fact that the Tribunal had evidence before it at the time of the hearing that the applicant had in fact enrolled in another course, so it cannot be said that there was an ongoing issue of a lack of funds (as distinct from an issue about the timing of seeking funds from the applicant’s parents).
I do not understand Leung to be authority for the proposition that in every case involving reg.2.43(2) a Tribunal must make express findings first as to whether it accepts that the applicant has made out exceptional circumstances, then as to whether it accepts that the non-compliance with condition 8202 was due to those exceptional circumstances and then inquiring into whether the circumstances which it has accepted were beyond the applicant’s control. In many cases an adverse finding about one element of the matters in reg.2.43(2) will provide a basis for the Tribunal’s satisfaction that the non-compliance was not due to exceptional circumstances beyond the applicant’s control. While it may often be preferable for the Tribunal to proceed in the logical manner suggested by Lander J in Leung, particularly where the non-compliance in question is a certification by an education provider (and such an approach would have avoided the sort of error in reasoning considered in Leung), it has not been established that the Tribunal in this case fell into jurisdictional error by failing to make express findings in the manner contended for in ground 5.
This is not a case in which the Tribunal failed to consider or to complete the inquiry as to whether it was satisfied that the applicant’s non-compliance with condition 8202 was due to exceptional circumstances beyond the applicant’s control. The fact that a logical approach would involve the Tribunal in addressing the issues in the sequence suggested by Lander J is not in itself (and was not said by his Honour to be) such as to mean that a Tribunal would necessarily fall into jurisdictional error in every case in which it failed to deal expressly with each of these issues in the manner considered necessary in the particular circumstances of Leung.
Insofar as the applicant appeared to contend generally that a Tribunal would fall into jurisdictional error if it failed to deal with an issue in a logical fashion, “not every lapse in logic will give rise to jurisdictional error” (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130] per Crennan and Bell JJ). In any event no such illogicality has been established in this case. In this case, in contrast to the position in Leung, the Tribunal did decide the matter that it needed to decide under reg.2.43. It completed its inquiry and did not fail to exercise jurisdiction. It has not been established that it addressed irrelevant considerations or failed to consider relevant considerations. This ground is not made out.
As no jurisdictional error has been established, the application must be dismissed.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 27 July 2011