Khatri v Minister for Immigration

[2013] FCCA 2059

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHATRI v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2059

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal – whether Tribunal misconstrued or failed to consider the Applicant’s claims. 

Legislation:  

Migration Act 1958 (Cth), s.359AA
Migration Regulations 1994 (Cth)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6

Applicant: DIP KUMAR BHATTARAI KHATRI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1126 of 2013

Judgment of: Judge Barnes

Hearing date: 7 November 2013

Delivered at: Sydney

Delivered on: 5 December 2013

REPRESENTATION

Counsel for the Applicant: Mr J R Young

Solicitors for the Applicant: Shamser Thapa & Associates

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1126 of 2013

DIP KUMAR BHATTARAI KHATRI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an Application for review of a decision of the Migration Review Tribunal dated 26 April 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa. 

2. The Applicant, a citizen of Nepal, arrived in Australia on 19 November 2008 as the holder of a Subclass 572 Student visa which ceased on 15 December 2010. 

3. On 10 December 2010 the Applicant applied for a Subclass 573 Student visa. One of the time of decision criteria for the grant of a Subclass 573 visa is cl.573.235 in Schedule 2 to the Migration Regulations 1994 (Cth) which is as follows:

   If the application was made in Australia, the Applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the Applicant and to any subsequent bridging visa.

4. The Tribunal recorded that the Applicant’s last substantive visa was a Subclass 572 Student visa that was in effect from 11 October 2008 to 15 December 2010. One of the conditions that applied to that visa was condition 8202 in Schedule 2 to the Migration Regulations which, among other things, required the visa holder to be “enrolled in a registered course” (see subcl.8202(2)(a)). 

5. On 6 January 2011 a delegate of the First Respondent refused to grant the Applicant a visa on the basis that he had not complied substantially with this aspect of condition 8202.  The Applicant sought review by the Tribunal.  He attended a Tribunal hearing.  The only evidence of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision.

6. In its reasons for decision the Tribunal set out the relevant law and stated that the issue was whether the Applicant had substantially complied with the criterion in cl.573.235 in relation to the condition in subcl.8202(2)(a). The Tribunal set out the law in relation to the concept of substantial compliance with a visa condition, pointing out that it was a question of fact to be determined having regard to the particular circumstances of the case.

7. The Tribunal recorded that the documentary evidence before it in relation to enrolment by the Applicant in the relevant period did not include any certificates of enrolment for the period from November 2008 to April 2010.  It noted that when such information was sought by the delegate the Applicant had advised that he was “a regular student” at Austech Institute for Further Education (referred to for convenience as Austech) from 24 November 2008 until the end of May 2009 when he heard rumours of bankruptcy and that a few months later Austech closed.  According to the Tribunal, the Applicant then changed his enrolment to the International Institute of Business and Information Technology (IIBIT) from 20 July 2009.  As discussed further below, this information was provided to the delegate in an email of 24 December 2010, a copy of which is before the Court as an annexure to an affidavit of Michelle Elizabeth Stone affirmed on 9 August 2013.

8. As the Tribunal recorded, on 30 December 2010 the delegate again wrote to the Applicant, asking him to clarify what occurred between August 2009 and April 2010, noting that he only studied at IIBIT until August 2009 and then studied again from April 2010.  In a response of 31 December 2010 the Applicant explained his situation and claimed that he was “too stressed, frustrated and depressed to be able to study from August 2009 to April 2010” but that “after a long struggle he [had] convinced himself to enrol at a new college and continue his studies”.  The Tribunal noted that the Applicant had provided no medical evidence to support his claims.

9. The Tribunal observed that by letter of 13 March 2013 the Applicant was invited to a Tribunal hearing, to provide information and evidence about his current enrolment or offers and past studies and an explanation as to why he was not undertaking any course of study in the period 11 October 2010 to 26 April 2010 (sic) and any documentary evidence relevant to this explanation.

10. In response, by letter of 28 March 2013 the Applicant’s representative provided a number of documents in relation to the Applicant’s past and intended study and made a written submission which in most respects repeated an earlier submission that had accompanied the application to the Tribunal.  It was claimed that the Applicant was a “regular student of Diploma of Hospitality” at Austech from 2008 until the end of May 2009 but that:

    Everybody was aware of Austech Institute situation, when he heard some rumours about the bankruptcy of this Institute on that time which make him worried and shattered about his career.  Within just a few months later Austech Institute was shut down without notice.

    The applicant decided to enrol at IIBIT to start his study, before that he has to go through the several process and Transfer of RPL which he have studied.  Though he enrolled at IIBIT (Diploma of Accounting), He still had disturbance from previous college internally and financially.  He still has to pay the tuition fee for the new college.

    After that, the situation was beyond his control.  As being an International Student, the applicant was affected a lot by surrounding circumstances and started to get frustrated and depressed.  The applicant did not have that much excitement as he first came to Australia.

    Everyone was aware of the college closure and the impact on the international student with their financial and career.  There were no safe net from the Authority and strong action taken against the RTO.” (sic)

    Though, the applicant tried to manage himself for couple of months, but level of frustration and depression had started to torture him.  The applicant stayed home feeling guilty and not acting his parents dream and his desire.

    The applicant was also aware that being an International Student he must follow the rules and regulations and continue his study. 

    After long struggle, He convinced himself to enrol at new college and continue his studies.  It is his remarkable decision which really geared him to this level of improvement.  After the completion of his international recognized degree from Australia, He would like to go back to his home country. 

    Now the applicant has successfully finished his Diploma of Business from Pacific College and Pursing his Bachelor degree from Holmes which is almost 50% completed. 

    (Emphasis in original)

11. The Applicant attended a Tribunal hearing on 5 April 2013.  In its reasons for decision the Tribunal summarised the Applicant’s evidence and the issues it raised with him.  Relevantly, the Applicant was said to have confirmed that in May 2009 he was concerned about his school facing bankruptcy, that he began looking for another school and that he enrolled in July 2009 in his new course.  He claimed that he only stayed there for a month “because his mind was disturbed, and he was frustrated and depressed” and that he had “had to make a quick decision to change schools and choose a new course”.

12. The Tribunal recorded that it had noted that Austech had closed on 19 March 2010.  It asked the Applicant whether he saw a doctor about his problems at the time.  He stated that he did not see a doctor but just stayed at home until a friend motivated him to go back to school in April 2010. 

13. The Tribunal also recorded that it put certain information to the Applicant under s.359AA of the Migration Act 1958 (Cth) (the Act) including the fact that his certificate of enrolment at Austech for a period from October 2008 was cancelled for non-commencement of studies, the absence of any certificate of enrolment for the period from 19 November 2008 to 20 July 2009, the fact that Austech ceased operation on 19 March 2010, that his last day of study in the Diploma of Accounting Course at IIBIT was 25 August 2009, that he had notified IIBIT of his cessation of studies and that the next certificate of enrolment was for a Diploma of Business Administration Course commencing on 26 April 2010.

14. The Tribunal recorded that it explained to the Applicant that this information was relevant in that he was not enrolled from the date of his arrival in Australia on 19 November 2008 until 20 July 2009 and then was not enrolled from 25 August 2009 until 26 April 2010 when he enrolled in his new course.

15. The Tribunal also noted that the Applicant claimed he left Austech in May 2009 because of his worries but that the school did not close until 19 March 2010, some ten months later.

16. The Applicant was recorded as claiming in response that he had attended Austech.  He provided the Tribunal with a copy of a statement of attainment dated 29 May 2009.  His representative claimed that Austech took students fees for a year, did not issue any certificates of enrolment and did not give back any of the fees when it closed.

17. The Applicant also claimed that the period of non-enrolment from August 2009 to April 2010 was his “worst period”, that he was not working and stayed at home and survived financially on money borrowed from friends.

18. The Tribunal recorded that it asked the Applicant why he went to the school (clearly a reference to IIBIT) and told them that he was withdrawing.  It put to him that it would have expected that in the circumstances he would have explained his situation and asked for a deferment or postponement of his studies rather than just withdrawing. 

19. The Tribunal advised the Applicant at the hearing that it accepted that he had studied at Austech and did not consider there was a period of non-enrolment prior to his ceasing studies at IIBIT on 25 August 2010.  It gave him a week to provide any other documentary evidence which might support his claims. 

20. After the hearing the Applicant provided the Tribunal with a letter in which he was said to have “emphasised he was a victim of the college closure” (in fact he referred to “college closure rumors” (sic)), that he “took [a] quick decision to change the college without thinking anything” and later realised he came to Australia to study in his area of interest (hospitality) but had gone to study in another field and could not concentrate.  He provided two supporting letters.  These letters are described by the Tribunal.  The first writer claimed in a letter of 12 April 2013 to have known the Applicant for more than four years, that he was a “very happy person” but that “lately” had been “going through the depression and some kind of frustration” and that he was “totally different as he used to be”.  The writer claimed he helped the Applicant by motivating him as he was in financial need.  The other letter, of the same date, referred to the writer lending the Applicant money when he was in need. 

21. In its findings and reasons the Tribunal referred to the requirement in condition 8202(2)(a) that the Applicant be enrolled in a registered course at all times while holding a student visa.  It found on the basis of the evidence before it, including the Applicant’s evidence, that the Applicant was not enrolled to study from 25 August 2009 until 26 April 2010.  It accepted that even though he did not have a certificate of enrolment for an earlier period, he was actually enrolled to study in Austech as evidenced by a statement of attainment and that he chose to leave that school after May 2009.

22. The Tribunal found that the period of non-enrolment from August 2009 to April 2010 was “a significant period to not be enrolled in any course”.  Relevant to the grounds relied on in these proceedings it continued (at paragraphs 57 to 66):

    The applicant’s reasons for not being enrolled are that he was stressed, depressed and frustrated because of what happened at Austech, and had financial problems, but eventually was motivated to study again by his friends.  After the hearing he provided two letters from friends to support his claims.

    However, the Tribunal does not accept the applicant’s reasons for his failure to be enrolled in the above period, and thus does not consider the applicant has complied substantially with his last substantive visa, for the following reasons.

    First, the applicant claims he left Austech because of problems surrounding its closure but the Department information shows that it did not close for some 9-10 months after the applicant had left there.

    The Tribunal finds that, even though there may have been rumours concerning the state of the education provider, the applicant left there of his own volition, and not because the school had closed down.  Based on the evidence before it, it does not accept that he would have lost any money as fees, given he left at a time of his own choosing, well before the school closed down.

    Second, the applicant arranged a new CoE, paid his enrolment fees, and studied at that school until 25 August 2009, being for around 1 month, when he went and told the school he was ceasing studies.  The Tribunal considers this to be implausible behaviour for a person who claims to be traumatised by the problems surrounding his last school.  As raised at the hearing, in such circumstances it would have expected the applicant to have raised his problems with the school and not just gone in there stating he was withdrawing.

    Third, the applicant claims he was stressed, depressed and frustrated after this, but could not provide any medical certificate evidence to support this, as he did not attend a doctor.  The Tribunal asked for supporting sworn evidence from his friends, who he said helped him recover and study again.

    However, the evidence provided by his two friends is vague and undetailed as to the applicant’s state of mind.  The first letter even suggests that he was recently depressed but is recovering slowly, rather than for a specific period in the past corresponding to the relevant period of non-enrolment in 2009/2010.  The other letter says nothing about the applicant’s state of mind at any time.  They both talk about lending the applicant money and him repaying it, but not to a specific period when he needed money, or why he needed it.  Thus the Tribunal puts no weight on this supporting evidence as it does not support the applicant’s specific claims.

    Based on the above, the Tribunal is not satisfied that the applicant was not enrolled in the relevant period because of his stress, depression, frustration and financial problems arising from what had occurred at Austech.

    As it does not consider the applicant to have been truthful, based on the evidence before it the Tribunal cannot determine what the applicant’s real reasons were for not studying in that period.

    Thus the Tribunal is not satisfied that the applicant has complied substantially with the terms of his last substantive student visa.  Hence he does not meet cl.573.235 and the Tribunal affirms the decision before it.

23. The Applicant sought review by Application filed in this Court on 23 May 2013.  He now relies on an Amended Application filed on 22 October 2013.  At the time the First Respondent filed the Courtbook containing relevant documents the departmental file for the Applicant could not be located.  A copy of the departmental file is now before the Court as an annexure to the affidavit of Michelle Elizabeth Stone affirmed on 9 August 2013. 

Whether the Tribunal Misconstrued the Applicant’s Claim

1. The first ground in the Amended Application is as follows:

   The Second Respondent made jurisdictional error by misconstruing the Applicant’s claim that he left his educational institution because of rumours it was about to close.

   Particulars

   a)  At [60] the Tribunal stated that at the time he left, the School had not closed down.  This misconstrued his claim.  He did not claim that the school had closed down at the time he left.

2. The Applicant submitted that at paragraph 60 of its reasons for decision the Tribunal proceeded on the basis that the Applicant’s claim was that he left Austech because the school had closed down.  It was submitted that this misconstrued his claim as the Applicant had not claimed that he left Austech because it had closed down, that it had closed down when he left or that it was in the process of closure, but rather that he left because he was concerned that the school was facing bankruptcy. 

3. It was submitted that the finding at paragraph 60 of the Tribunal’s decision did not deal with the claim that was made by the Applicant that he left Austech and then continued to be affected by issues because of what had happened at Austech.  The Applicant submitted that in misconstruing his claimed reason for non-compliance with condition 8202(2)(a) the Tribunal had failed to consider his reasons for non-compliance and hence fallen into jurisdictional error.

4. The First Respondent submitted that this ground failed at a factual level when regard was had to the claims made by the Applicant and the whole of the Tribunal reasons for decision.

5. It is important to bear in mind that what was in issue for the Tribunal was whether the Applicant had complied substantially with condition 8202(2)(a) during the period from 25 August 2009 until 26 April 2010.  In other words, the period in issue was the time after the Applicant left IIBIT.  The Tribunal proceeded on the basis that there was no issue of non-compliance with this requirement prior to the date on which the Applicant ceased to be enrolled at IIBIT (including in the period after he left Austech and before he started at IIBIT).  The Tribunal accepted that even though the Applicant did not have a certificate of enrolment, he was enrolled to study at Austech and that he chose to leave that institute after May 2009.  In other words, for the purposes of the Tribunal decision it was not the Applicant’s departure from Austech that caused him not to be enrolled in a registered course, but rather his subsequent departure from IIBIT in August 2009. 

6. As counsel for the Applicant accepted, in its findings and reasons the Tribunal accurately summarised the Applicant’s reasons for not being enrolled from 25 August 2009 as claims that he was “stressed, depressed and frustrated because of what happened at Austech; and [that he] had financial problems, but eventually was motivated to study again by his friends” (at paragraph 57).  These reasons were then addressed in the context of the Tribunal’s consideration of whether the Applicant had complied substantially with condition 8202(2)(a). 

7. The Tribunal’s findings at paragraph 60 and its other findings in this part of the decision should be considered in the context of the claims made and explanations provided by the Applicant in relation to the period of non-enrolment in issue, bearing in mind that the Tribunal decision is not to be read with an eye too keenly attuned to error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 at [30] – [31]).

1. In essence, the Applicant’s claim before the Tribunal was that the lasting effect of having to leave Austech because of rumours about its “bankruptcy” was relevant to his failure to be enrolled in a registered course after 25 August 2009.  The Applicant’s claims in this respect were made on several occasions.  First, in response to a request from the Department for evidence of attendance or enrolment from November 2008 to April 2010, in his email of 24 December 2010 the Applicant explained that he was a “regular student” at Austech until the end of May 2009 when he “heard some rumor (sic) about the bankruptcy of this INSTITUTE and few months after it get closed (sic)”.  He then stated that “[a]fter collecting my Statement of Attainment from Austech [which I note he obtained in May 2009], I changed my education provider to IIBIT from 20th July 2009”.  In this email the Applicant did not refer to any other circumstances after his enrolment at IIBIT.  However, in response to the departmental officer pointing out that he only studied at IIBIT until August 2009 and then did not study again until April 2010 and asking about the intervening period, the Applicant explained in an email of 31 December 2010 the circumstances in which he left Austech as follows:

   …I was a regular student of Austech Institute for until end of May 2009, when I heard some rumor (sic) about the bankruptcy of this Institute.  And, just a few months later it get closed which maked me worried about my career.  I made a quick decision to change college before it get closed and enrolled at IIBIT straight way.  Though I enrolled at IIBIT, I still had disturbance from previous college internally and the environment of IIBIT.  After that, the situation was beyond my control.  As being an International Student, I was affected a lot by surrounding circumstances and started to get frustrated and depressed.

   Though, I tried to manage myself for couple of months, but level of frustration and depression had started to torture me.  Because of that, I only stayed home feeling guilty and not acting as my parents dream and my desire.

2. The Applicant went on to explain that he knew he had to study, but “could not do that as [he] was having to start a bad feeling about the situation”.  However, after a “long struggle” he convinced himself to enrol at a new college and continue his studies.

3. The submission accompanying the Applicant’s application to the Tribunal was less clear about whether the Applicant left Austech before it closed.  The Applicant’s advisor stated relevantly:

   The applicant was regular student of Diploma of Hospitality (Austech Institute) for until end of May 2009.  Everybody was aware of Austech Institute situation, when he heard some rumours about the bankruptcy of this Institute on that time which make him worried and shattered about his career.  Within just few months later Austech Institute was shut down without notice.

   The applicant decided to enrol at IIBIT to start his study, before that he has to go through the several process and transfer of RPL which he have studied.  Though he enrolled at IIBIT (Diploma of Accounting), He still had disturbance from previous college internally and financially.  He still has to pay the tuition fee for the new college.

   After that, the situation was beyond his control.  As being an International Student, the applicant was affected a lot by surrounding circumstances and started to get frustrated and depressed...

4. Moreover, in the almost identically worded submission of 28 March 2013 set out at [10] above, the Applicant’s advisor repeated these claims with the added (and emphasised) assertion focussing on the impact of the closure of Austech that:

   Everyone was aware of the college closure and the impact on the international student with their financial (sic) and career.  There were no safe net from the Authority and strong action taken against the RTO. 

5. The only evidence of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision.  The Tribunal recorded that the Applicant confirmed that “[i]n May 2009 he was concerned about his school facing bankruptcy and began looking for another school” and that he enrolled in July 2009 in his new course, but stayed there for only one month:

   …because his mind was disturbed, and he was frustrated and depressed.  He said he had to make a quick decision to change schools and choose a new course.

6. In light of his advisor’s submissions the Tribunal sought clarification of the Applicant’s claims.  As indicated, it put to the Applicant for comment the fact that while he claimed he left Austech in May 2009 because of his worries, Austech did not close until 19 March 2010 some 10 months later. 

7. Relevantly, in response his advisor focused on the financial impact of the closure.  He suggested that Austech took students’ fees for a year, did not issue certificates of enrolment and did not give back any of the fees when it closed. 

8. The Tribunal responded to the issue of a possible financial impact in its suggestion that the Applicant “may have withdrawn from studies in order to work because he had lost money at Austech”.  The Applicant was recorded as responding that there was “some truth to this” but that he had been able to pay the new school fees when he enrolled. 

9. The Tribunal continued:

   The Tribunal said it could understand if he was depressed and frustrated if he had not been able to get into another course, or to pay his fees. As such, it did not consider his claims as to why he was not enrolled to study plausible in the circumstances, without other evidence to support such claims.

10. The Tribunal also raised with the Applicant its understanding that Austech students had received fee refunds from a government insurance fund and had been assisted to find other places to study.  The Applicant stated that “he did not get any help, or recover any of his lost fees”.  His representative said “the applicant was financially disrupted, and was distressed, and had to borrow money from his friends for fees”.

11. The supporting letters provided by the Applicant each referred to providing financial help to him.  Finally, in the post-hearing submission dated 12 April 2013 the Applicant sought to emphasise that he was “victimized of college closure rumors and took quick decision to change the college without thinking anything”.  He continued:

    Later I realized that I came to study my interest skilled course (Hospitality) but went to study another field of study, which diverted my minds (sic) and could not concentrate on the study and went on for a few months.  Finally my friends helped me to overcome the situation…

12. It is apparent the Applicant claimed that he had to make a quick decision to change schools having regard to rumours about it facing bankruptcy.  The Tribunal considered whether such claim was associated with the Applicant’s claim that he was affected financially (and consequently depressed and frustrated).  Such a possibility was canvassed by the Tribunal at the hearing.  His representative said “the applicant was financially disrupted, and was distressed, and had to borrow money from his friends for fees”. 

13. In such circumstances it was open to the Tribunal to understand the Applicant’s claims to include a claim that he left IIBIT because of the lasting impact that his departure from Austech had upon him, including financially.  Included in this claim was a claim that the fact that he had to leave Austech quickly was relevant to his later decision to leave IIBIT and to his subsequent non-enrolment (before he enrolled in Business Administration and Accounting courses). 

14. It has not been established that the Tribunal incorrectly considered that the Applicant’s claim was that Austech had closed down at the time he stopped studying there. 

15. Seen in light of the period in issue and the claims made by the Applicant, read fairly, the Tribunal’s findings at paragraph 59 and 60 reflect its consideration of the Applicant’s claim to have been affected, in particular financially, by the closure of Austech. 

16. Having regard to the Applicant’s advisor’s submissions about the effect of the closure of Austech on persons such as the Applicant, the Applicant’s claims at the Tribunal hearing about lost fees and financial disruption as well as his claim that in May 2009 he was concerned about his school facing bankruptcy and began looking for another school, the fact that at paragraph 59 the Tribunal summarised part of the Applicant’s claim as a claim he left Austech because of problems concerning its closure is not such as to establish a misconstruction of his claim.  The subsequent findings that, as the Applicant had claimed, there may have been rumours concerning the state of Austech, but that he left there of his own volition and at a time of his own choosing and that in such circumstances it did not accept that he would have lost any money as fees addressed the Applicant’s claims in this respect. 

17. It has not been established that the Tribunal misconstrued the Applicant’s claim as a claim that he left the school after it had closed.  Ground one is not made out.

Whether the Tribunal failed to consider the Applicant’s Evidence

1. Ground two in the amended application is that the Tribunal:

   …made jurisdictional error by failing to consider whether it was satisfied that the applicant’s sworn evidence about stress, depression and financial problems was true.

2. The Applicant acknowledged that the Tribunal had dealt with the supporting letters from his two friends in its findings and reasons and that it was open to it to give no weight to such letters.  However it was submitted that the Tribunal had fallen into jurisdictional error by failing to consider the Applicant’s sworn evidence that he was stressed, depressed and frustrated.  It was pointed out that this was not a situation in which the rejection of corroborative evidence would compel a rejection of the Applicant’s claims.  Counsel for the Applicant submitted that having misdirected itself about the Applicant’s reasons for leaving Austech, the Tribunal had found that it was not satisfied about the explanation for the period of non-enrolment solely because there was no corroboration.  In written submissions it appeared to be contended that (at paragraph 64) the Tribunal had stated that because it could put no weight on the supporting evidence it was not satisfied about the connection between the Applicant’s later non-enrolment and what occurred at Austech.  It was further submitted that the statement at paragraph 65 that the Tribunal could not determine the Applicant’s real reasons for not studying as it did not consider him to have been truthful did not follow from what preceded unless the Tribunal had wrongly perceived that the Applicant had claimed that he left Austech because it had closed down. 

3. In the alternative, it was submitted that if the Tribunal’s reference to truthfulness was based on the premise that the supporting letters were vague and not sufficiently precise to corroborate the Applicant’s claim, this amounted to a finding that because his evidence was not corroborated the Applicant was being untruthful.  It was said that such a finding did not follow and hence paragraph 64 revealed a jurisdictional error in that the Tribunal stated that because of its finding that no weight could be placed on the supporting evidence, it could not be satisfied about the Applicant’s claims.

4. In oral submissions counsel for the Applicant appeared to acknowledge that in paragraph 64 of the Tribunal’s reasons for decision, it referred back to all of its earlier findings from paragraph 59 on.  However the Applicant maintained that the Tribunal had failed to deal with his claims that he was stressed, depressed and frustrated.  It was submitted that if the Tribunal was not satisfied with the Applicant’s evidence in relation to his claimed depression, it was obliged to make such a finding and that reciting the fact that the Applicant did not go to the doctor was not of itself such as to necessarily preclude a finding of depression.  Hence it was submitted that the Tribunal had failed to carry out its jurisdictional task by considering a matter it had to consider. 

5. This ground is not made out.  Reading the Tribunal’s decision fairly and as a whole, it is apparent that the Tribunal considered the reasons given by the Applicant for his failure to be enrolled in a registered course from 25 August 2009 until 26 April 2010.  It set out those reasons at paragraph 57 of its decision.  No issue is taken with the accuracy of the account in those reasons.  At paragraph 58 it stated its conclusion that it did not accept the Applicant’s reasons for his failure to be enrolled in that period and hence did not consider he had complied substantially with a condition imposed on his last substantive visa.

6. As set out above, the Tribunal then considered the Applicant’s claim that he had to leave Austech quickly.  It found he left at a time of his own choosing and did not accept that he would have lost any money as fees.  Thus it addressed his claims in relation to the financial impact of the circumstances in which he left Austech.

7. Further, the issue for the Tribunal was not whether the Applicant was suffering from stress, depression and financial difficulties but rather whether such matters were the cause of or a sufficient explanation for his non-enrolment from August 2009 to April 2010 and hence relevant to the issue of substantial compliance.  The Tribunal addressed those issues and considered whether it accepted the Applicant’s evidence in this respect.  It did not disbelieve these claims because it was of the view he claimed he left Austech after it closed.  Nor did it fail to believe him or fail to be satisfied that he had complied substantially with condition 8202(2)(a) simply because his evidence was not corroborated. 

8. The Tribunal considered but found implausible the Applicant’s behaviour in relation to ceasing studies at IIBIT after he had arranged a new certificate of enrolment, paid his enrolment fees and studied for about one month.  The Tribunal was of the view that this was implausible behaviour for a person who claimed to be traumatised by the problems surrounding his last school (as the Applicant did).  It was open to the Tribunal to find that it would have expected that the Applicant would have raised his problems with IIBIT and not just stated he was withdrawing.  The Tribunal’s finding about the implausibility of the Applicant’s behaviour included not only the circumstances of his departure from IIBIT but also the circumstances of his enrolling in IIBIT by arranging for a new certificate of enrolment and paying his enrolment fees and commencing study.  As the Tribunal had pointed out at the hearing, this was not a case in which the Applicant had been unable to get into another course or to pay his fees.  This raised an issue as to whether his claim as to why he was not enrolled after August 2009 was plausible in all the circumstances.

9. Moreover, in paragraph 62 the Tribunal specifically addressed the fact that the Applicant claimed he was stressed, depressed and frustrated, but had regard to the fact that he could not provide any medical evidence as he did not attend a doctor.  In other words, the Tribunal acknowledged that the Applicant made these claims, but found that they were uncorroborated by expert evidence.  The Tribunal went on to find that the evidence provided by friends (at the suggestion of the Tribunal) was “vague and undetailed as to the applicant’s state of mind” and did not address the specific period of non-enrolment in issue and hence gave the letters no weight.

10. Seen in context, the Tribunal’s finding at paragraph 64 is a clear finding that it was not satisfied that the Applicant’s non-enrolment in the relevant period was because of his stress, depression and frustration and financial problems arising from what had occurred at Austech.  Its finding should be understood as a reference to the preceding paragraphs commencing from paragraph 57 in which the Tribunal’s reasons were set out.  The Tribunal’s finding does not only refer to the lack or inadequacy of corroborative evidence as discussed at paragraph 63.  The suggestion that paragraph 64 related only to the Tribunal’s reasoning in relation to the supporting letters from the Applicant’s friends is inconsistent with the Tribunal’s express consideration of the Applicant’s claims about financial problems through lost fees at Austech in paragraphs 59 – 60 of the Tribunal’s reasons.  The Tribunal did not fail to consider the Applicant’s claims in this respect. 

11. There is no basis for the contention that the Tribunal was not satisfied with the truth of the Applicant’s claims only because of the lack of supporting evidence.  Its conclusion about the reasons for non-enrolment was reached for the cumulative reasons discussed at 59 to 63 of its reasons for decision. 

12. At paragraph 65 the Tribunal concluded that it did not consider the Applicant had been truthful.  This is clearly a reference to whether he was truthful in relation to the reasons for his failure to be enrolled in a registered course (not a finding that he claimed he left Austech after it closed).  The Tribunal also found that on the evidence before it it could not determine what his real reasons were for not studying in that period.  These findings were a clear rejection of the Applicant’s evidence as to such matters. 

13. The Tribunal made express findings that it did not accept the Applicant’s reasons for his failure to be enrolled in the relevant period including for reasons of stress, depression, frustration and financial problems arising from what had occurred at Austech.  In these circumstances it cannot be said that the Tribunal failed to consider whether it was satisfied as to the truth of the Applicant’s sworn evidence about stress, depression and financial problems being the reasons for his non-enrolment. 

14. The Tribunal’s finding at paragraph 65 that the Applicant had not been truthful is, read in context, clearly a reference to his evidence as to why he had not been enrolled in a course in the relevant period.  The Tribunal clearly considered, but rejected, the Applicant’s evidence in this regard. 

15. The Applicant contended that the Tribunal failed to consider his evidence regarding his reasons for not being enrolled in the relevant period on the basis that there was an incomplete summary and not a detailed consideration of his evidence.  Contrary to the Applicant’s contention, the Tribunal did consider the Applicant’s evidence, in particular at paragraphs 59 to 62.   The Tribunal summarised the Applicant’s and his advisor’s claims and evidence given at the hearing on this issue earlier in its decision and was not required to repeat the summary of the evidence in its findings.  I am satisfied that the Tribunal’s conclusions clearly rejected the Applicant’s claims and evidence as to why he had not been enrolled in the relevant period insofar as it was necessary to do so having regard to the lack of detail in the Applicant’s claims and his advisor’s submissions to the Tribunal. 

16. As neither of the grounds relied on in the Amended Application is made out the application must be dismissed.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  5 December 2013