Luitel v Minister for Immigration

[2016] FCCA 3018

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUITEL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3018

Catchwords:
MIGRATION – Application to review decision of former Migration Review Tribunal (now the Administrative Appeals Tribunal) – whether the Tribunal erred in law in drawing adverse inferences.

Legislation:

Migration Act 1958 (Cth), ss.116, 140, 359A 360

Migration Regulations 1994 (Cth), condition 8202

Cases cited:

Associated Provincial Picture Houses Ltd v Wednesbury Corp (1947) 45 LGR

635; [1947] 2 All ER 680

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170
Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; [2014] FCAFC 1
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611;

[2010] HCA 16
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26

SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012]

FCAFC 58

VAF v Minister of Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549; [2004] FCAFC 123

Applicant: ASHOK KUMAR LUITEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3041 of 2014

Judgment of: Judge Barnes

Hearing date: 4 December 2015

Date of Last Submission: 14 January 2016

Delivered at: Sydney

Delivered on: 24 November 2016

REPRESENTATION

Solicitors for the Applicant: Newman & Associates

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3041 of 2014

ASHOK KUMAR LUITEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal, dated 2 October 2014 affirming a decision of a delegate of the First Respondent to cancel a Class TU Student visa held by the Applicant.

2. The Applicant, Mr Luitel, is a citizen of Nepal who came to Australia as the holder of a Student visa in March 2009.  He was granted the Subclass 573 Student visa in question on 19 June 2012.  It was subject to condition 8202 which required, among other things, that the visa holder “is enrolled in a registered course” (condition 8202(2)(a) in Schedule 8 of the Migration Regulations 1994 (Cth) (Migration Regulations) as it stood at the relevant time).

3. At the time Mr Luitel was granted the Subclass 573 visa he was enrolled in a Bachelor of Business course at the Holmes Institute with a start date of 9 April 2012 and an end date of 31 July 2014. 

4. However on 12 August 2013 the Department issued a Notice of Intention to Consider Cancellation (NOICC) to Mr Luitel on the basis that it appeared that he had not been enrolled in a registered course of study since 20 September 2012 and hence that he did not meet the requirements of condition 8202 so that his visa may be cancelled under s.116(1)(b) of the Migration Act 1958 (Cth) (the Act). Mr Luitel was afforded an opportunity to comment on the ground for cancellation and to give reasons why his visa should not be cancelled. His attention was drawn to the fact that the delegate would take certain matters into account (including the purpose of his travel to and stay in Australia).

5. Mr Luitel responded to the NOICC by letter received by the Department on 19 August 2013.  He claimed that his agent had informed him in August 2012 that the Holmes Institute had cancelled his enrolment and that the Institute had later suggested he join the course the next semester, but that it had failed to return a subject fee he had paid.

6. Mr Luitel claimed he had been under mental pressure and could not continue studying.  He acknowledged that he had breached the visa condition, but claimed he was mentally and physically weak.  He explained that his father had left his job in Nepal and started practising yoga, that he had neglected the family and the family business and that, in the meantime, his family also had to meet the expenses of his sister’s wedding.  The Applicant claimed that his father was angry because of his slow rate of progress in study in four years of Australia.  He submitted that cancellation of his visa would push him further towards mental pressure and depression.

7. In addition, in an email dated 30 September 2013 Mr Luitel’s mother stated that the family had experienced a dramatic decline in their financial situation which had affected her son’s study.  She reiterated the claims about the Applicant’s father and the marriage of the Applicant’s sister.  She claimed that the situation had been hard for her son since August 2012 and that it was hard for her to send him money.  She expressed concern about the impact of the pressure her son was experiencing.

8. On 1 October 2013 a delegate of the First Respondent cancelled Mr Luitel’s Student visa.  He sought review by the Tribunal. 

9. Mr Luitel attended a hearing before the Tribunal as originally constituted (T1) on 4 February 2014. T1 found that he had breached condition 8202. It exercised its discretion under s.116 of the Act to cancel the visa.

10. Mr Luitel sought judicial review.  On 30 June 2014 orders were made by consent remitting the matter to the Tribunal for reconsideration in circumstances where the Minister conceded that T1 had erred by not considering the email from the Applicant’s mother.  It had made no reference to this email and had found that the Applicant had provided no documentary evidence in support of his claims.

11. After the matter was remitted to the Tribunal for reconsideration, the Tribunal as reconstituted invited the Applicant (through his migration agent) to a hearing on 26 September 2014.  In its invitation of 23 July 2014 the Tribunal requested that he provide any additional documents or information he may wish to rely on during the hearing be provided by 19 September 2014.  The Applicant did not provide any additional information by 19 September 2014.  However, he attended the Tribunal hearing and at the hearing provided information from the Evolution Hospitality website about Certificate and Diploma courses in Hospitality and an email from Evolution dated 17 September 2014 acknowledging receipt of his enrolment application.  Further references to “the Tribunal” are to the Tribunal as reconstituted. 

Tribunal decision

1. In its reasons for decision of 2 October 2014 the Tribunal set out the background to the proceedings, including the previous student visas held by Mr Luitel; the grant of the student visa in June 2012 subject to condition 8202; the issue of the NOICC; Mr Luitel’s response and the submission from his mother; the delegate’s decision; the review by T1 and the remittal to the Tribunal for reconsideration. 

2. It recorded that it had listened to the recording of the T1 hearing and that Mr Luitel had also attended a hearing before it on 26 September 2014.

3. The Tribunal stated that the issue was whether the Applicant, as the holder of a student visa, had breached condition 8202 in Schedule 8 to the Migration Regulations. It observed that if he had breached that condition, under s.116(1) of the Act the visa may be cancelled.

4. The Tribunal observed that the Applicant’s visa had been cancelled by the delegate on the basis that he was not enrolled in a registered course.  The delegate’s decision (a copy of which Mr Luitel had provided to the Tribunal) indicated that he had not been enrolled in any registered course since 20 September 2012.  The Tribunal observed that the Applicant had confirmed that this was correct. 

5. The Tribunal had regard to the fact that at the September 2014 hearing Mr Luitel said that he was still not enrolled in any registered course.  He provided evidence that he had recently applied for enrolment in a Certificate III Hospitality (Commercial Cookery) course, but said that he was not yet formally enrolled in the course.

6. On the basis of this evidence the Tribunal found that the Applicant had ceased to be enrolled in a registered course in September 2012 and had remained without any enrolment for more than two years. It found that he had breached condition 8202(2)(a) and that there was a ground for cancellation under s.116(1)(b) of the Act.

7. The Tribunal considered whether to exercise its discretion to cancel the visa.  It stated that it had had regard to matters raised by the Applicant as to why the visa should not be cancelled and to government policy guidelines in the Department’s Procedures Advice Manual.

8. The Tribunal had regard to the fact that the purpose of a student visa was to enable the visa holder to undertake studies in Australia.  It found that the evidence before it indicated that the Applicant had ceased to be enrolled in a registered course on 20 September 2012; that when the NOICC was issued in August 2013 he had remained in Australia for almost a year as a holder of a student visa while not enrolled in any registered course; and that (as he had confirmed in his oral evidence in September 2014) that situation remained unchanged, so that at the time of the Tribunal decision the Applicant had been living in Australia for approximately two years while not enrolled in a registered course or undertaking any study.  The Tribunal observed that even if the Applicant were to secure enrolment in a Certificate III in Hospitality (Commercial Cookery) course as he had foreshadowed, that would not be a course of study in the Higher Education Sector (as required for the grant of a Subclass 573 visa).  The Tribunal found that, given that the Applicant had not undertaken any study in Australia for such a lengthy period, he was not fulfilling the purpose of a student visa and the purpose of his travel to and stay in Australia.

9. The Tribunal considered the breach of condition 8202 was significant given the importance of enrolment to a student visa and the lengthy period of time in which the Applicant had not maintained enrolment.

10. The Tribunal addressed the reasons provided by the Applicant for his failure to maintain enrolment.  It had regard to the fact that in his response to the NOICC and his oral evidence to both Tribunals Mr Luitel had stated that the main reason was that his father had abandoned the family business and the family and had refused to provide financial support for his study and had also claimed that his sister’s marriage had caused the family to incur expenses.  The Tribunal acknowledged that the Applicant also claimed that as a result he felt financial and psychological pressure. 

11. However, for reasons which it gave, the Tribunal did not accept these claims.  First, while it accepted that there was no onus on an applicant to provide evidence to support his claims, the Tribunal noted that the only evidence about the Applicant’s loss of funds or loss of financial support from his family was the submission by his mother in which she asserted that the difficulty arose because her husband had abandoned his responsibilities.  The Tribunal was of the view that had the family’s financial situation deteriorated as claimed, it would have expected the Applicant to have been able to provide some relevant evidence from sources outside the family.  It had regard to the fact that T1 had raised this point with the Applicant at the first hearing and was of the view that if the Applicant’s claims were correct, such evidence should have been readily available to him, for example, in the form of bank statements for the family business and for him.

12. The Tribunal also had regard to the fact that Mr Luitel had told T1 (at the hearing in February 2014) that at that time his mother had effectively taken over the family business and that she had been in a position to provide him with financial support since around early November 2013.  However, despite being asked on several occasions, he had been unable to provide any convincing reason why, if financial support was now available, he had not re-enrolled in a course of study when the funds became available again.  He also told the Tribunal in September 2014 that funds were available from his mother, but had said that he had not asked her for money while he was not studying and instead was supporting himself by working 20 hours a week as a cleaner.

13. The Tribunal addressed the Applicant’s claim that he had been too depressed by the cancellation of his visa to know what to do and that he had no one to advise him.  It also had regard to his acknowledgment that he now had the services of a migration agent who had advised him to re-enrol in a course and was said to have suggested that, given his mental state, he should first enrol in a course which involved minimal theoretical knowledge and more practical skills, as he could enrol in a degree course at a later stage.  The Tribunal was of the view that if that had been so, it would have expected the Applicant to have sought enrolment much earlier, whereas the evidence indicated that he only sought enrolment in a Certificate III course less than two weeks before the scheduled September 2014 hearing.

14. The Tribunal placed “considerable weight” on the fact that the Applicant did not enrol in an appropriate course soon after November 2013, the time at which he said that funds had become available again.  This led it to disbelieve the Applicant’s claims regarding the circumstances leading to a temporary lack of financial support between 2012 and 2013.  It therefore gave little weight to his mother’s submission.

15. The Tribunal also had regard to the fact that the Subclass 573 visa was granted in mid-June 2012, which was only three months before the Applicant’s enrolment ceased.  It found that the Applicant had not presented convincing evidence that his financial circumstances had changed in such a short period after the visa was granted to him to the extent that he was no longer capable of maintaining his enrolment in September 2012.  It also observed that while the Applicant’s evidence was that his father had changed his employment in April 2012 and that this resulted in financial difficulties, in order to be granted his visa in June 2012 he would have had to show that he had sufficient funds to support his stay in Australia and study and if he had had any financial difficulties at that time he would not have been able to obtain the Subclass 573 visa.  Insofar as the Applicant claimed to T1 that his family had last given him money in April 2012, the Tribunal was of the view that if this were so, the Applicant would have known before the visa was granted that he had no funds to support his study.  However it found that there was nothing to suggest that Mr Luitel had informed the Department that his circumstances had changed and that he was no longer able to pay for the course.  He had confirmed at the hearing that he had not so informed the Department. 

16. The Tribunal was of the view that either the Applicant had misled the Department when he was applying for the student visa (if he no longer had the funds to support his study) or his claim that he had no funds with which to sustain his study in late 2012 was false.  It considered the latter situation to be more likely, particularly given that the Applicant now claimed that financial support had been available to him since late 2013, but he had not yet enrolled in any course.  The Tribunal did not accept the explanation the Applicant gave at the T1 hearing (that he was waiting for the result of his application to the Tribunal), being of the view that in the time since he claimed to have had available financial support he could have undertaken almost a year of academic study and that “there would have been no barrier to him doing so”.

17. The Tribunal acknowledged that the Applicant had told T1 that in April 2012 he had a promise of financial support and the last payment from his parents, but claimed that as no further support was provided after he was granted the visa, he could not pay for the next semester.  However, insofar as the Applicant claimed that his mother had now agreed to support him again, the Tribunal had regard to the absence of any evidence presented by the Applicant to support such an assertion and the fact that the mother’s submission of September 2013 made no offer of further financial support. 

18. Moreover, the Tribunal did not consider it plausible that at precisely the time the Applicant was seeking the student visa he was able to gain the promise of financial support from his parents, but that such support ceased as soon as he was granted the visa, only to be offered again when the matter was under review by the Tribunal.  The Tribunal was of the view that the Applicant was not being truthful in his claims. 

19. In all the circumstances the Tribunal did not accept that Mr Luitel had any financial difficulties or that any such financial difficulties caused him to cease being enrolled.

20. The Tribunal addressed the Applicant’s claims to have been depressed as follows (at paragraphs 30-34):

    30.  The applicant has claimed to have been depressed as a result of his financial difficulties and his relationship with his father and the cancellation of the visa.  The Tribunal has rejected the applicant’s claim that he had any financial difficulties and it does not accept that he has experienced any mental health issues.  First, if he had been genuinely affected by any health issues, the Tribunal would have expected him to have sought professional advice but he informed T1 that he did not do so.  In the absence of any relevant medical evidence, the Tribunal does not accept that the applicant was unable to maintain his enrolment and continue (or resume) his studies for any medical reason.

    31. Second, the applicant would have been well-aware as a holder of a Student visa, he had to maintain enrolment in a relevant course and actively engage in studies.  If he had been unable to do that, for any reason, there would have been no basis for him to remain in Australia.  He could have returned to his home country and sought to come back to Australia in the event that he was able to resume his studies.  The fact that he chose to remain in Australia suggests to the Tribunal either that the applicant was able to, and felt able to, continue with his studies or that the purpose of his presence in Australia was for reasons other than study.

    32. Third, while the applicant told T1 that he was ‘a little depressed’ and did not want to leave home [i.e. his place of residence in Australia], he also said that he continued with his employment.  He has told the Tribunal that he has been working as a cleaner for, 20 hours a week.  The Tribunal does not accept that the applicant was so unwell that he did not want to leave when he had to attend to his studies but has no difficulties leaving home when he had to work.  The fact that the applicant was able to continue with his employment supports the Tribunal’s view that he did not have any emotional difficulties or psychological illness, whether as a result of financial hardship, the cancellation of his visa, his father’s alleged refusal to support him, his relationship with his father or indeed for any other reason.

    33. Further, when asked by T1 why he was able to work but not to study, the [Applicant] said that he had to work to support himself and it was a necessity.  The context of his remarks indicated that, at the time, he did not regard study as a necessity.  This suggests to the Tribunal that the applicant is not a genuine student and that he decided to remain in Australia for reasons other than study.  The fact that he is now seeking to engage in study in a completely different field to that in which he originally sought to study supports the Tribunal’s view that his belated approach to an education provider is more to do with his desire to remain in Australia than with a desire to pursue a clear career goal.

    34. Overall, the Tribunal does not accept the applicant’s evidence that he had any financial difficulties since mid-2012 which caused him to be ‘a little depressed’.  The Tribunal has formed the view that the applicant had not been truthful when explaining the reasons for his failure to maintain his enrolment.  The length of time during which the applicant did not maintained (sic) enrolment, coupled with the applicant’s regular employment during the same period, suggests to the Tribunal that the applicant has had little interest in pursuing study since September 2012 and that the reason he remained in Australia was not for the purpose of studying. 

1. The Tribunal was not convinced that the breach occurred in circumstances beyond the Applicant’s control and did not consider that there were extenuating or compassionate circumstances that outweighed the grounds for cancelling the visa.

2. The Tribunal addressed Mr Luitel’s claims that if he returned home without a bachelor’s degree he would not be able to get a job and that his father wanted him to get a degree.  The Tribunal was of the view that if that were so it would not have expected him to have sought to enrol in a vocational course in the hospitality field. 

3. The Tribunal acknowledged that some hardship would be caused to the Applicant by cancellation, as he would not be able to complete his study in Australia at the degree level.  However it had regard to his evidence at the hearing about the two qualifications he had achieved at  the Certificate IV level, which it considered were valuable qualifications despite being at a lower level than a degree.  The Tribunal did not accept the Applicant’s suggestion to T1 that he would not be able to get a job and live independently from his father with nothing more than his current qualifications. 

4. The Tribunal accepted that there was nothing adverse known about the Applicant’s past and present behaviour towards the Department. It found that there were no other persons whose visas may be cancelled under s.140 of the Act and that there was nothing to suggest that Australia had obligations under relevant international agreements that would be breached as a result of the visa cancellation.

5. The Tribunal considered the Applicant’s evidence to T1 that he may experience family violence from his father.  It was of the view that he had not been truthful in his claims of financial hardship and did not accept that he was being truthful with this claim.  In any event, the Tribunal did not accept that the Applicant would be unable to live apart from his father if that was what he ultimately decided he wanted to do.

6. The Tribunal reiterated that it had found that the Applicant had breached condition 8202 and that it considered the breach to be significant given the importance of enrolment to a student visa and the lengthy period in which the Applicant was not enrolled in any course.

7. It summarised its conclusions as follows at paragraphs 40-41:

   40. The Tribunal is not convinced that the applicant was experiencing financial hardship or that he was suffering from any mental health issues that prevented him from being able to maintain enrolment.  The Tribunal places weight on the fact that in the same period the applicant was able to engage in employment and that he appeared to perceive employment, but not enrolment, as a necessity.  The Tribunal has formed the view that the breach did not occur in circumstances beyond the applicant’s control.  It is not convinced that undue hardship will be caused by the cancellation.  It does not consider that any extenuating or compassionate circumstances outweigh the grounds for cancelling the visa.  Cancellation would not breach Australia’s obligations under international agreements and there are no other people whose visas might be cancelled as a result of cancellation of the applicant’s visa.

   41. The Tribunal places considerable weight on the fact that the applicant had not engaged in any study since September 2012.  The Tribunal has formed the view that the applicant is no longer a genuine student.  In the Tribunal’s view, these matters outweigh all other consideration.  Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.   

8. The Tribunal affirmed the decision to cancel Mr Luitel’s Class TU visa. 

These Proceedings

1. Mr Luitel sought review by application filed on 3 November 2014.  At that time he was self-represented.  He did not file pre-hearing written submissions.  The First Respondent filed written submissions addressing the grounds in the application.

2. Shortly before the hearing the Applicant obtained legal representation.  Mr Newman, the Applicant’s solicitor, filed a notice of acting – appointment of lawyer and an outline of written submissions (the “outline”) on the day of the hearing.  The outline of submissions did not address the grounds in the original application, but raised what appeared to be other bases on which jurisdictional error was asserted.  In the hearing I sought clarification from Mr Newman as to the precise grounds intended to be addressed in his outline and submissions.  The First Respondent made oral submissions addressing the issues raised for the Applicant in the outline and in oral submissions. 

3. I gave the Applicant leave to file an Amended Application after the hearing to reflect the grounds addressed in the outline and in oral submissions (with the opportunity afforded to both parties to file and serve written submissions further addressing the grounds as particularised in the Amended Application).  After an Amended Application was filed, both parties filed further written submissions.   

Ground One

1. Ground one in the Amended Application is as follows (errors in original):

   1. The Tribunal erred in law and in its jurisdiction when it drew adverse inferences from the fact that the applicant had not enrolled at a college for some considerable period of time ignoring the impediment the applicant laboured under, viz., the lack of any lawful entitlement to study owing to the earlier cancellation of his student visa. 

   PARTICULARS

   (a) The applicant relies on a passage from Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30;  206 CLR 323;  180 ALR 1;  75 ALJR 1105 (31 May 2001), where in the joint judgment of McHugh, Gummow and Hayne JJs Craig v S. Australia is cited:

   “ in Craig v South Australia [50], if an administrative tribunal (like the Tribunal) falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

   (b) The applicant’s student visa was cancelled on 1.10.2013 – see Delegate’s letter of same date at CB 27.  At para 15 of the Tribunal’s decision of 2.10.14 at CB135, the tribunal noting that the applicant had ceased enrollment on 20.12.2012, said, “…so he has now been living in Australia for approximately two years while not enrolled in a registered course and undertaking any study”.  See also para 12.  NB:  Proceedings commenced in this Court in or about February 2014. [emphasis added].  See also the opening remarks at para 16 CB135.

2. In the Applicant’s written outline issue was taken with paragraph 19 of the Tribunal decision, which was as follows:

   At the first hearing, the applicant told T1 that his mother had now effectively taken over the business and had been in a position to provide him with financial support since approximately 3 months earlier that is to say since around early November 2013.  However, despite being asked on several occasions, he was unable to provide any convincing reason why, if financial support was now available he had not re-enrolled in a course of study when the funds became available again.  He told the Tribunal in September 2014 that funds were available from his mother but he had not asked her for money while he was not studying.  Instead, he was supporting himself by working 20 h per week as a cleaner. 

3. It was submitted that the Tribunal had “erred in law” when it found that an issue of credibility arose because of the failure of the Applicant to engage in study after his visa was cancelled.  The Applicant contended that “[t]he answer surely is that the student had no legal right to engage in study” and asked, rhetorically, how a college would enrol him and if he managed to enrol how he could have been expected to engage in study and expend considerable funds of his parents without a valid student visa. 

4. Mr Newman submitted (without reference to any statutory provision or authority) that “the law of student visas” was that “to study in this country you have to have a visa”. 

5. In post-hearing written submissions, the Applicant contended that in deliberating upon its discretionary powers in relation to cancellation the Tribunal had taken into account the period of time the Applicant did not possess a student visa in considering the time he did not attend college.  This was said to amount to ignoring relevant material in the sense considered in Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 on the basis that in the absence of such a visa the Applicant would not have had permission to study. The Applicant did not seek to put any evidence before the court in relation to any conditions to which any bridging visa he held was, or may have been, subject.

6. Insofar as the Minister had contended that it would have been open for a bridging visa which did not prevent study to be granted to the Applicant, it was submitted that were this so it would undermine the Department’s powers to impose sanctions. 

7. The Applicant also clarified that his submission in relation to ground one was “not really about illogicality or unreasonableness”.  However the Applicant contended that if he was mistaken and the issue was really about unreasonableness, then the Tribunal’s thinking was so unreasonable as to amount to Wednesbury unreasonableness.  This argument was put on the basis that, in effect, the Tribunal had stated that it was not going to invoke its discretionary powers to reinstate the student visa because of what it saw as a flagrant abuse by the Applicant and also because he had not attended college while he held a bridging visa after losing his student visa for not attending college.  It was submitted that there was “a step missing” in such reasoning, being the question of whether there was a condition on the Applicant’s bridging visa that would allow him to attend college.  It was pointed out that the Minister had not asserted that there was such a condition, but only “fancifully” that there could have been.  The Applicant’s submission in response was “Dream on!” (sic). 

8. The Applicant also submitted that the Minister had adopted a relativistic approach in submitting that what was unreasonable to one person may be considered reasonable by another and that the court should not intervene by imposing its own standard.  It was submitted that the Minister’s submissions had no basis in law and that the cases relied on by the Minister offered no support.  It was, however, acknowledged that the court should be slow to interfere in an appropriate case when there was illogicality and pointed out that in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Crennan and Bell JJ had indicated at [133] that the correct approach was:

   …to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. 

9. The Applicant submitted that there was no evidence before the Tribunal that his bridging visa allowed study. Insofar as the Minister had argued that this could be inferred, it was submitted that if this was what the Tribunal had done, it should have spelt out its reasoning clearly in conformity with its statutory duty in s.430(1) of the Act.

10. At the hearing it had appeared that the asserted error was characterised as one of illogicality in the sense considered in SZMDS.  The First Respondent made post-hearing submissions on this basis, referring to the discussion by McKerracher J in SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58 at [82]-[85] of the principles in SZMDS.

11. The First Respondent submitted that although it was now contended by the Applicant that he did not have “any” legal entitlement to study in part of the period considered by the Tribunal, there was no evidence to this effect before the Tribunal.  It was further submitted that the fact that the Applicant’s student visa had been cancelled did not entail the conclusion as a matter of law that he held no visa at all, nor that he had no right to study.  In particular, given the provisions in the Regulations in relation to bridging visas (considered below), it was submitted that there was no legal basis for the proposition that a person whose student visa had been cancelled was prohibited from undertaking study or being enrolled in a course of study.

12. The First Respondent also submitted that in this case the circumstances and claims of the Applicant as presented to the Tribunal did not in any way suggest that he was not legally entitled to study, so that there was no reason for the Tribunal to consider whether he had no right to study after his student visa was cancelled. 

13. In these circumstances, the First Respondent submitted that it could not be said that there was no logical connection between the evidence before the Tribunal and the inferences and conclusions it drew or that it was not open to the Tribunal to rely on the Applicant’s non-enrolment after his student visa was cancelled.  It was submitted that the decision was not illogical in the sense considered in SZMDS. 

Consideration

1. Particular (b) to this ground incorrectly asserted that the Tribunal noted (at paragraph 15) that the Applicant had ceased enrolment “on 20.12.2012 (sic)” and appeared to take issue with the Tribunal’s finding that he had been living in Australia for approximately “two” years while not enrolled or studying.  In fact, the Tribunal correctly recorded (both in paragraphs 12 and 15) that the Applicant ceased to be enrolled on 20 September 2012.  Given that the Tribunal decision was made on 2 October 2014 there was no error (whether of fact or law or in any inference drawn) in the Tribunal’s finding that the Applicant had remained in Australia without enrolment or study for approximately two years. 

2. The reference in particular (b) to proceedings commenced in this court in or about “February 2014” was not explained, but nothing turns on this.  The present proceedings were commenced on 3 November 2014. 

3. I also note that the reference in the Applicant’s submissions to s.430(1) of the Migration Act 1958 (Cth) was presumably intended to be a reference to the equivalent provision in s.368 as it stood at the relevant time.

4. In any event, it has not been established that the Tribunal ignored relevant material in a manner constituting jurisdictional error.  Nor has illogicality or legal unreasonableness been established on the basis contended for in ground one. 

5. As pleaded, this ground asserts a jurisdictional error of the nature considered in Craig v South Australia as referred to in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30. Relevantly, in Yusuf McHugh, Gummow and Hayne JJ stated at [82]:

   It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)

   “falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

   “Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.

6. The Applicant did not otherwise address authorities in relation to ignoring relevant material (see for example Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 and Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16).

7. In essence, the Applicant’s contention was that the Tribunal had “ignored” what was said to be “the law” that a person on a bridging visa would not be permitted to study under conditions imposed on such a visa. 

8. The fundamental difficulty that faces the Applicant is that the premise that underlies this contention that as a matter of law he must have been unable to study lawfully after his student visa was cancelled is not made out. 

9. As the First Respondent submitted, when regard is had to the Migration Regulations, it is clear that the fact that an applicant’s student visa has been cancelled does not entail the conclusion as a matter of law either that such person held no visa at all or, more pertinently, that he or she had no right to study.

10. A person in the position of the Applicant would normally have been entitled to be granted a bridging visa after his or her student visa was cancelled (see cl.050.212(4)(b) of Schedule 2 to the Migration Regulations). Visas are subject to conditions with which visa holders are required to comply. Visa conditions are set out in Schedule 8 of the Regulations. It is the case that condition 8207, which prohibits visa holders to whom it applies from undertaking studies in Australia, may be imposed on a bridging visa. For example cl.050.6 in Schedule 2 to the Regulations provides that any one or more of specified conditions (including condition 8207) “may” be imposed on a Subclass 050 Bridging Visa.  However, the imposition of this condition is not mandatory in all cases.  A bridging visa can be granted without this condition being imposed, in which case the holder of the visa would not be prevented from studying.  The Applicant’s general contentions about the likelihood that the Department would impose such a condition do not amount to a legal basis for the proposition that a person whose student visa has been cancelled would be prohibited as a matter of law (or practice) from undertaking any study or being enrolled in a course of study. 

11. In other words, it does not necessarily follow that the Applicant did not have any legal entitlement to study after his student visa was cancelled.  The Applicant has not established any legal basis for the proposition that a person whose student visa had been cancelled would be prohibited from undertaking study or being enrolled in a course of study.  Although his student visa had been cancelled, this did not entail the conclusion that as a matter of law he had no right to study. 

12. If in referring to the Tribunal drawing adverse inferences, the Applicant intended to take issue with the Tribunal’s finding that he breached condition 8202(2)(a) (which requires that the visa holder be enrolled in a registered course), the Tribunal made its finding in that respect on the basis that the Applicant had not been enrolled in any registered course since 20 September 2012.  The Tribunal had regard to the fact that the requirements of condition 8202 did not allow a visa holder to cease to be enrolled in a course (see Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170), but in finding there was a breach of this condition it did not draw any inference from the fact that the Applicant’s visa had been cancelled or ignore relevant material in a manner constituting jurisdictional error. Rather, it accepted the Applicant’s evidence that he had not been enrolled in a course since September 2012 and was still not enrolled in any registered course.

1. Moreover, it has not been established that there was any evidence or claim to the effect that the Applicant had no lawful entitlement to study before the Tribunal, either in relation to the law generally or the lawful entitlement of this Applicant to enrol in or undertake a course of study after his student visa was cancelled.  On the contrary.  The Applicant told the Tribunal in September 2014 (at a time when he did not hold a student visa) that he had applied for enrolment in a Certificate III course.  Moreover, when asked by T1 why he was able to work, but not study, he had not pointed to visa conditions as an explanation for his failure to study.  Nor is there any evidence that he claimed to either Tribunal that the reasons he had not enrolled in any course since September 2012 included a lack of permission to study. 

2. The Applicant has not put evidence before the court to show that material was before the Tribunal in relation to the conditions on any bridging visa he held after cancellation of his student visa (or in relation to whether any such conditions did in fact mean he had no legal entitlement to study).

3. There is no evidence to support any claim that the Tribunal ignored or failed to have regard to any material before it relevant to the Applicant’s ability to study legally.  As pleaded, ground one is not made out. 

4. Strictly speaking it may not be necessary to consider illogicality or unreasonableness in this context, as the Applicant appeared to disavow reliance on such contentions.  However, as his solicitor had appeared to raise an issue of illogicality at the hearing and “responded” to the First Respondent’s submissions in this regard, I have considered this issue insofar as possible on the submissions of the parties. 

5. In SZMDS Crennan and Bell JJ considered the “grounds” of illogicality and irrationality.  They stated at [129]-[131]:

   It can be acknowledged that the contemporary invocation of “illogicality” or “irrationality” as a basis for judicial review may well have first emerged in Australia, as intimated by Gleeson CJ in S20, as a reaction to the ouster of the review ground of “Wednesbury unreasonableness” in immigration law. Equally it may be that the development of “irrationality” as a basis for judicial review in England grew out of dissatisfaction with the inherent circularity of the Wednesbury test and the implicit suggestion in Wednesbury that there were degrees or grades of unreasonableness.  Be that as it may, accepting that an allegation of “illogicality” or “irrationality” must mean something other than emphatic disagreement as explained above by reference to Eshetu and S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do “illogicality” and “irrationality” fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is “clearly unjust”, “arbitrary”, “capricious” or “Wednesbury unreasonable”?

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

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

6. As pointed out by McKerracher J in SZOOR at [84]-[85]:

   In SZMDS, none of the three majority judges discerned illogicality in the reasoning of the Tribunal. The test which emerged as to the circumstances in which illogicality would give rise to jurisdictional error emphasises that a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion (Crennan and Bell JJ at [131]). As stated subsequently (at [135]):

   Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision maker might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if a decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

   What was said by Heydon J at [78], cited above (at [54]), in my view, while differently expressed, is not at odds with what was said by Crennan and Bell JJ. Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision. See, for example, SZOCT (at [84]) per Nicholas J and SZMWQ (at [55]) per Rares J.

7. The circumstances and claims of the Applicant as presented to the Tribunal did not suggest in any way that he was not legally entitled to undertake study after his visa was cancelled.  There is no absolute prohibition on study for all bridging visa holders in all circumstances.  The Applicant told the Tribunal that he had been working for 20 hours a week (at paragraph 32 of the Tribunal’s reasons).  This provided a logical basis for an assumption that the Applicant had a visa which, subject to conditions, allowed him certain rights, in particular work rights (and hence may possibly have afforded him other rights such as a lawful entitlement to study).  More particularly, when asked why he was able to work and not study, it appears from the Tribunal’s account of the hearing that the Applicant did not point to his visa conditions as being relevant (see paragraph 33 of the Tribunal’s reasons).  When the Tribunal discussed the issue of enrolment with the Applicant he confirmed that he had not enrolled in any course since September 2012, but he did not make a claim that this was because he had no right to enrol in or study in a course (see paragraphs 15 and 19 of the Tribunal’s reasons).  Finally, the Applicant advised the Tribunal that he had received advice from a migration agent that he should enrol in a course and, importantly, provided evidence that he had sought enrolment in a Certificate III course about two weeks before the September 2014 Tribunal hearing (CB 136 [20] and CB 127-129).  He made no claim that he had only done so at that stage because of earlier restrictions on his visa in relation to his entitlement to study. 

8. In these circumstances it cannot be said that on the evidence before it it was not reasonably open to the Tribunal to rely on the Applicant’s lengthy period of non-enrolment after his student visa was cancelled in considering whether to exercise its discretion to cancel his visa.  It cannot be said that only one conclusion was open, that the decision was not open on the evidence before the Tribunal, that there was no logical connection between the evidence and the inferences and conclusions reached by the Tribunal (SZMDS at [135]) or that no rational or logical decision-maker could have arrived at the same conclusion on the same evidence (see SZMDS at [130]).

9. Insofar as the Applicant referred generally to Wednesbury unreasonableness, as pointed out in SZOOR at [83]:

   …it has been made clear by the High Court that Wednesbury unreasonableness applies only to determining the validity of discretionary decisions rather than the fact finding leading to those decisions.  The fact finding itself can only be impugned where the factual determination is “illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds”.  This is the test developed from S20 (at [52]) per McHugh and Gummow JJ and with whom Callinan J agreed. 

10. In this case the Applicant’s concern appears to relate to the Tribunal’s fact finding and inferences it is said to have drawn, but in any event it has not been established that the Tribunal decision was unreasonable in the sense considered in Associated Provincial Picture Houses Ltd v Wednesbury Corp (1947) 45 LGR 635; [1947] 2 All ER 680, SZMDS or otherwise (see in particular Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [63]-[66] and [72] and Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; [2014] FCAFC 1 at [43]-[51]).

11. Having regard to the law discussed above in relation to conditions on bridging visas, the Tribunal’s reasoning process leading to the exercise of its discretionary power to cancel the student visa (see s.116(1) of the Act) in circumstances where there was a failure by the Applicant to comply with a condition that required him to be enrolled in a registered course has not been shown to lack an evident and intelligible justification or to be otherwise irrational, illogical or legally unreasonable (see Singh at [44]-[48]).

12. Ground 1 in the Amended Application is not made out. 

Ground two

1. Ground two in the Amended Application is as follows:

   The Tribunal erred in law and in its jurisdiction when it drew adverse inferences from the fact the applicant had no medical evidence to support his claim that he had suffered from depression and was unable to attend to his studies despite making no call for such evidentiary material when it wrote to the Applicant on 9 July 2014 – CB 80 advising that it “may do one of” four things, namely (inter alia) “seek your comments or response to particular information” particularly when in para 30 CB137 it partly founded its decision to disbelieve the applicant because at the T1 stage he stated that he had not sought professional advice.

2. As the First Respondent pointed out, this ground fails to articulate clearly the nature of the jurisdictional error being alleged. 

3. In his written outline of submissions the Applicant asserted that he had presented a “picture of one of (sic) bewilderment/depression” at the hearing before T1 caused by “an anomic (sic) situation of his father abandoning his paternal obligations to take up some alternative lifestyle”.  It was pointed out that there was a remittal by consent.  However there is no suggestion or evidence that the remittal was based on any acceptance by the Minister (or the court) of jurisdictional error relating to the conduct of the hearing by T1 or to its consideration of the Applicant’s claimed depression.  Rather, as the First Respondent explained in submissions, the concession was that T1 had erred by not considering the email from the Applicant’s mother provided to the delegate stating that the Applicant’s family experienced financial difficulties which affected his studies from August 2012.

4. It also appeared to be contended in the Applicant’s outline of submissions that in circumstances where T1 had noted the absence of documentary evidence to support the Applicant’s claims of loss of financial support and the second Tribunal’s hearing invitation was expressed in general terms, the Tribunal was obliged to give the Applicant “particulars” under s.359A of the Act. It was submitted that while the Tribunal had conceded that an applicant bore no onus to provide evidence in support of his claims: “Inconsistently with this concession the Tribunal made the extraordinary claim that it was entitled to disbelieve him because of his failure to produce any such financial statements.” 

5. The outline of submissions also took issue with what was said to be a failure by the Tribunal to “offer the applicant the opportunity of having the hearing adjourned for a day or two to enable financial documents to be emailed from Nepal.”

6. Insofar as these submissions related to the absence of financial documents, ground two relates only to the absence of medical evidence. 

7. Issue was also initially taken with what was said to be a Tribunal finding that the Applicant was not psychologically unwell.  It was submitted that such finding was based on the irrelevant consideration that he had managed to work part time and was made possible by the Tribunal failing to articulate the matters that it had in mind.  The contention that the Tribunal had regard to an irrelevant consideration was not maintained in the Amended Application. 

8. Relevant to ground two as pleaded, the Applicant made the following submissions in his written outline:

   5. The Tribunal knew in advance the circumstances of the applicant: someone who claimed depression, anxiety and bewilderment.  Rather than perform its statutory duty to give clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. (The applicant’s behaviour towards the Department had been impeccable.)

   6.  The decision in question was something from another age-see CB52-53 wherein no weight was given to the applicant’s sudden change of fortune nor to his mental and physical weakness, the latter being discarded as an irrelevance for the dubious reason that he did not seek out medical advice.  His mother had considered him suicidal.  One wonders what Beyondblue would make of that!

9. During the hearing the Applicant also submitted that the Tribunal had failed to comply with s.359A of the Migration Act by failing to put to him in writing that he claimed to be depressed, but that there was no medical evidence.

10. Reliance also appeared to be placed on s.360 of the Act.  It was submitted that (notwithstanding that no transcript of the Tribunal hearing was in evidence) it could be inferred from the Tribunal’s reasons for decision, that the Tribunal had not raised dispositive issues with the Applicant which were said to consist of the absence of supporting documentary evidence, in particular in relation to his claim of depression.

11. In any event, it was submitted that the need for supporting documentary medical evidence (in relation to the Applicant’s claims of depression) should have been referred to specifically in the hearing invitation letter.  In support of this proposition reliance was placed on the fact that the Tribunal’s initial letter to the Applicant of 9 July 2014 (after the matter was remitted for reconsideration) indicated that the Tribunal member to whom the matter was reallocated “may do one or more of the following:

    ·seek further information

    ·seek your comments or response to particular information

    ·invite you to attend a hearing

    ·make a decision”

12. It was submitted that the Tribunal had failed to seek further information from the Applicant and that this had “lulled” him into thinking that nothing was required of him. The Applicant contended that the hearing invitation did not comply with the requirements of the Migration Act and that as a matter of procedural fairness the Tribunal was obliged to specify that there was a need for documentary evidence.

13. Mr Newman did not address the procedural requirements of s.360A of the Act or the relevance of s.357A of the Act.  He explained that his submission was simply that if the Tribunal was going to attack the credibility of an applicant on the basis of written evidence, it must, or at least should, give the applicant the opportunity to avail himself of an opportunity to provide such evidence.  It was submitted that in this case the simplest way of doing this would have been to alert the Applicant prior to the hearing.

14. The Applicant submitted that it would not have sufficed if the Tribunal had raised with him at the hearing his claim about depression and whether he had any evidence of having been to a doctor or whether he had been to a doctor, because this would not take into account the lethargy which was said to characterise depression.  It was contended that the Tribunal had to identify the issues arising in relation to the decision under review in its hearing invitation letter. 

15. In oral submissions the Applicant also contended that the Tribunal should have offered him the opportunity of having the hearing adjourned to provide documentary evidence.  It was submitted generally that as a matter of procedural fairness the Tribunal ought to have invited the Applicant to produce medical evidence. 

16. In the Amended Application these arguments were reformulated as a contention that the Tribunal erred in drawing adverse inferences from the absence of medical evidence, despite making no call for such evidentiary material in the initial letter of 9 July 2014. 

17. Ground two in the Amended Application is not expressed in terms of a concern about the Tribunal’s compliance with statutory procedures or procedural fairness.  Rather, it asserts an “error of law” in the Tribunal’s reasoning in drawing inferences in the circumstances alluded to therein.  The Applicant did not address the ground as pleaded in his further written submissions. 

18. First, if this ground was intended to maintain the contention that the Tribunal failed to comply with s.359A of the Act, as the First Respondent submitted, the Applicant has failed to identify any information which would give rise to an obligation under s.359A(1) of the Act. Insofar as the Applicant’s assertion was to the effect that the absence of documentary evidence (whether financial or medical) was information that should have been put to the Applicant under the Act, a lack of information does not amount to information within s.359A of the Act (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26). There is no obligation on the Tribunal under s.359A of the Act to alert an applicant to “gaps” in his evidence (see VAF v Minister of Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549; [2004] FCAFC 123 at [24] per Finn and Stone JJ cited in SZBYR at [18]). There was no obligation on the Tribunal under s.359A of the Act to ask the Applicant to provide evidence of his claimed depression (or, for that matter, for documentary evidence in support of his claims about his financial situation) or to inform him that his failure to do so was adverse to his case.

19. The Applicant was on notice of the inadequacy of his supporting documents (in particular the lack of medical evidence) from the delegate’s decision and the decision of T1.  Insofar as it was submitted that the letter of 9 July 2014 somehow “lulled” the Applicant into thinking that he was not required to submit any information (apparently a procedural fairness argument), I do not accept that the statement that the Tribunal member may take one or more specified actions in some way misled the Applicant about what he may do.  If it was intended to be suggested that procedural fairness required the Tribunal to make a specific request for “particular” information from the Applicant, either at that time or thereafter, there was no such obligation.   

1. The letter of 9 July 2014 did not address what the Applicant might or should do, or whether he could or should provide evidence to the Tribunal, but rather what the Tribunal member may do procedurally on remittal.  More generally, the Tribunal is under no general obligation to advise an applicant of its provisional reasoning or to prompt or stimulate an explanation or the provision of further information.  The Tribunal informed the Applicant in its hearing invitation letter that any documents he wished to rely on during the hearing should be provided by a specified date and also gave him the opportunity to provide any “additional information … requests or any new information which you wish the Tribunal to consider”. 

2. To the extent that the Applicant intended to maintain reliance on an assertion that the Tribunal had failed to put dispositive issues to him under s.360 of the Act, such claim is not made out.  Insofar as this claim may be seen as relating to the Tribunal hearing, there is no evidentiary basis for such an assertion in the absence of a transcript of the hearing. 

3. In any event, the Applicant was on notice of the significance of the absence of medical evidence from the delegate’s decision and the decision of T1 which found (and this finding was not the basis for the remittal) that it did not accept that the Applicant had experienced any mental health issues for several reasons, including the fact that he had not presented any evidence he was suffering from any ailment, including any mental condition, that would affect his ability to enrol in a course.  T1 was of the view that if the Applicant was genuinely affected by any health issues he would have sought professional advice, but recorded that he had told it that he had not done so.  T1 then stated clearly: “[t]he Tribunal is not prepared to accept this claim on the basis of nothing more than the Applicant’s assertion.” 

4. Nor has it otherwise been established that the Tribunal failed to raise dispositive issues with the Applicant in a manner constituting jurisdictional error (see SZBEL). Neither s.360 nor any of the other provisions in the relevant part of the Migration Act (or procedural fairness generally) imposes a general requirement on the Tribunal to request or “call for” particular documentary information (such as medical evidence) in its hearing invitation.  As the First Respondent submitted, there was no general obligation on the Tribunal to ask the Applicant to provide evidence of his claimed depression or to inform him that his failure to do so was adverse to his case. 

5. It was also claimed that the Tribunal had erred in failing to offer the Applicant further time to submit any documentary evidence.  However there is no evidence that the Applicant sought any further time to submit any documentary evidence.  The Tribunal was not under an obligation to grant additional time of its own volition (see Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41).

6. If ground two is intended to go beyond the matters addressed by the Applicant in his submissions and assert illogicality or unreasonableness, it is not made out.  The Applicant’s post-hearing submissions in relation to unreasonableness and illogicality related only to ground one.  In any event, the fact that the Tribunal drew an adverse inference from the absence of medical evidence to support the Applicant’s claim of depression (despite not calling for such evidentiary material in its letter of 9 July 2014) has not been shown to be irrational, illogical or legally unreasonable, whether in the sense considered in SZMDS or otherwise. 

7. It has not been established that there was any irrationality, illogicality or legal unreasonableness in the manner in which the Tribunal reasoned, made its findings, or in the exercise of its discretion.  In particular, its findings were reasonably open to it on the material before it for the reasons which it gave and were not such that no reasonable decision-maker could have reached such a view on the evidence before the Tribunal (see Li and Singh).

8. In conclusion, to the extent that ground two is intended to contend that there was a failure by the Tribunal to comply with statutory obligations or to afford the Applicant procedural fairness, it is not made out.  Nor has it been established that the Tribunal erred in law in having regard to the fact that the Applicant had provided no medical evidence to support his claim that he had suffered from depression.  It was reasonably open to the Tribunal to find, in the absence of any relevant medical evidence (and in circumstances where the Applicant had indicated that he had not sought professional assistance), that it did not accept that the Applicant was unable to maintain his enrolment and continue or resume his studies for any medical reason. 

9. The Tribunal did not reach its conclusion based solely on the absence of supporting medical evidence.  It also had regard to other matters (as set out above), in considering the exercise of its discretion to cancel the visa.  There was an evident and intelligible justification for the Tribunal’s reasoning and the exercise of discretion.  I am not persuaded that the Tribunal’s letter to the Applicant of 9 July 2014 was such that it gave rise to an obligation on the Tribunal to call for evidentiary material in relation to the Applicant’s claimed medical condition (or, for that matter, any financial change of circumstances) in the manner contended for by the Applicant.  Ground two is not made out.

10. As no jurisdictional error has been established on any basis contended for by the Applicant, the application must be dismissed.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 24 November 2016