Khatri v Minister for Immigration

The Federal Circuit Court of Australia heard an application by Mr Dip Kumar Bhattarai Khatri (the Applicant) to review a decision of the Migration Review Tribunal (the Tribunal). The Tribunal had affirmed a delegate's decision not to grant the Applicant a Student (Temporary) (Class TU) visa. The Applicant, a citizen of Nepal, had applied for a Subclass 573 Student visa after his previous Subclass 572 Student visa expired. A key criterion for the new visa was that the Applicant must have substantially complied with the conditions of his previous substantive visa.

The legal issue before the Court was whether the Tribunal had made a jurisdictional error by misconstruing the Applicant's claims regarding his reasons for not being enrolled in a registered course, thereby failing to consider those claims. Specifically, the Applicant contended that the Tribunal erred by finding he claimed to have left his educational institution, Austech, because it had closed down, when his actual claim was that he left due to concerns about its impending bankruptcy. This alleged misconstruction, the Applicant argued, led to a failure to properly consider his reasons for non-compliance with visa condition 8202(2)(a).

The Court considered the Applicant's various statements and submissions made to the delegate and the Tribunal. It noted that the Applicant had claimed to leave Austech in May 2009 due to rumours of bankruptcy and subsequently enrolled at another institution, IIBIT, in July 2009. However, the Tribunal found that Austech did not close until March 2010, some ten months after the Applicant left. The Tribunal also noted that the Applicant ceased studies at IIBIT in August 2009 and was not enrolled in any course until April 2010. The Tribunal ultimately found that the Applicant had not substantially complied with his visa conditions, as it did not accept his reasons for the period of non-enrolment between August 2009 and April 2010, finding them implausible without further supporting evidence, particularly the lack of medical documentation for his claimed stress and depression.

The Court dismissed the application. It found that the Tribunal's reasons, when read as a whole and in light of the Applicant's submissions, did not demonstrate a misconstruction of his claim. The Tribunal's findings at paragraph 60, which noted that Austech had not closed when the Applicant left, were made in the context of assessing the Applicant's overall explanation for the period of non-enrolment after August 2009. The Court applied the principle from *Minister for Immigration and Ethnic Affairs v Wu Shan Liang* that decisions should not be read with an overly critical eye for error. The Tribunal had addressed the Applicant's stated reasons for non-enrolment, even if it ultimately rejected them based on the evidence.