Shrestha v Minister for Immigration & Anor - [2013] FCCA 710

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHRESTHA v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 710

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – consideration of ‘exceptional circumstance’ and whether ‘exceptional circumstances outside the applicant’s control’ – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.116, 360, 476
Migration Regulations 1994 (Cth), r.2.43

Cases cited:
Yoshua v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1553
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486
SZIMM v Minister for Immigration & Anor [2008] FMCA 34
SZQSP v Minister for Immigration & Anor [2012] FMCA 890
SZRRX v Minister for Immigration & Anor [2013] FMCA 84
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214
Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166
SGBB v Minister for Immigration & Multicultural Affairs [2003] FCA 709; (2003) 199 ALR 364

Applicant:

SUDEEP SHRESTHA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2920 of 2012

Judgment of:

Judge Nicholls

Hearing date:

26 April 2013

Date of Last Submission:

26April 2013

Delivered at:

Sydney

Delivered on:

5 July 2013

REPRESENTATION

Counsel for the Applicant:

Mr C Jackson

Solicitors for the Applicant:

Kazi & Associates, Solicitors and Public Notary

Appearing for the Respondents:

Ms N Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application made on 11 December 2012, amended on 5 March 2013 and further amended on 22 April 2013 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5400.00

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 2920 of 2012

SUDEEP SHRESTHA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 11 December 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), amended on 5 March 2013 and further amended on 22 April 2013, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 15 November 2012, to affirm the decision of the delegate of the respondent Minister, to cancel the applicant’s Higher Education Sector (Subclass 573) visa (“the visa”).

Background

The applicant is a citizen of Nepal (Court Book – “CB” – CB 12 and CB 25). On 19 February 2009 he was granted the visa (CB 1 and CB 25). Amongst other matters, the visa was subject to a condition that the relevant education provider not certify that the applicant had not achieved satisfactory progress in the education course in which he was enrolled (condition 8202).
On 27 April 2011, the Central Queensland University (“the education provider”), at which the applicant had been enrolled as a student, certified that the applicant was “not achieving satisfactory course progress” (CB 17). The Minister’s delegate subsequently notified the applicant that his visa would be considered for cancellation. The applicant was invited to give a response as to why his visa should not be cancelled (CB 1 to CB 4).
Condition 8202 (at the relevant time) was as follows:
“(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student – the holder is enrolled in a full-time course of study or training.
(3) A holder meets the requirements of this subclause if neither of the following applies:
(a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.
(4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa – the holder is enrolled in a full-time course of study or training.”
Section 116 of the Act gives the Minister the power to cancel visas on certain grounds. Relevantly:
“116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa; or
…
(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.”
Regulation 2.43 of the Migration Regulations 1994 (Cth) (“the Regulations”) is relevant to s.116(3) of the Act. It is, relevantly, in the following terms:
“2.43 Grounds for cancellation of visa (Act, s116)
(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
…
(b) in the case of a Student (Temporary) (Class TU) visa:
(i) that the Minister is satisfied that the visa holder has not complied with conditions 8104 or 8105 (if the condition applies to the visa); or
(ii) that the Minister is satisfied that:
(A) the visa holder has not complied with condition 8202; and
(B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.”

The Delegate

The delegate cancelled the applicant’s visa on 30 June 2011 in accordance with s.116(1) and (3) of the Act and r.2.43(2)(b)(ii) of the Regulations. The reasons for the cancellation were that the applicant had breached condition 8202(3) and his non-compliance with that condition was not due to circumstances beyond his control (CB 25 to CB 29).
Aspects of the delegate’s decision were:
1)That he had had regard to the conduct of the applicant’s education provider in providing warnings and counselling to the applicant (CB 27.5).
2)That the applicant had made no reference in his response to the Department’s notice of intent to consider cancellation of his visa to “any reasons of any nature” as to why he did “not meet his visa obligations” (CB 27.7).

The Tribunal

On 5 July 2011, the applicant applied to the Tribunal for review of the delegate’s decision (CB 30 to CB 45, including a copy of the delegate’s decision). The applicant was assisted in making that application by a registered migration agent (CB 46 and CB 47).
On 22 June 2012, the Tribunal wrote to the applicant’s education provider, inviting it to provide certain information relevant to the applicant’s education history with the education provider (CB 59 to CB 61). This included specific questions asked by the Tribunal. The education provider’s response is reproduced at CB 66 to CB 87. The applicant made written submissions to the Tribunal dated 19 September 2012 (CB 93 to CB 136, with annexures).
The applicant attended a hearing before the Tribunal on 28 September 2012. Although the applicant’s representative did not attend, his uncle and aunt attended as witnesses (CB 137). Both the Tribunal’s account of the hearing contained in its decision record ([38] at CB 166 to [49] at CB 168), and the transcript (“T”) of the hearing annexed to the affidavit of Deepak Kumar Chettri, translator, sworn on 19 March 2013 [taken into evidence, no objection by the Minister], reveal that the Tribunal put certain information to the applicant for comment. In particular, this was the information provided by the education provider to the Tribunal.
During the course of the Tribunal hearing, the applicant’s uncle and aunt made reference to the following (T24.8 to T25.1):
“[Uncle]…I’m sorry member…also I forget to mention that when he was attacked in the train on the way back home from university from that day he was…ah…so much upset and so
[Aunt] Yeah after that he distracted…
[Uncle]After that incident he was so much…so distracted and…
[Aunt] Yeah forgot to mention that…
I don’t know if that would be the contributing factor or…
Since…that time he’s…I don’t know…after that he’s change because of that he was attacked in the train… someone… three guys hit, punch him and took his everything… that was the first year when when he get…after that yeah…
I… I forgot…October or November 2009
[Uncle]I don’t know whether that would be the contributing factor..
Your listen to me…too much like that…something like that…”
[I note that, in the transcript, “W1” refers to the applicant’s uncle and “W2” refers to the applicant’s aunt – see T7.2. In the judgment, for ease and clarity, I have used “[Uncle]” and “[Aunt]” respectively.]
The applicant subsequently sought to explain and pursue this matter. In essence, this was that he had been assaulted and robbed on a train in October 2009, and that that had affected his educational course progress (see, generally, beginning at T25) (“the train assault incident”). The Tribunal gave the applicant a period of four weeks to provide supporting evidence in relation to this train assault incident (T35).
The Tribunal account contained in its decision record explains this matter ([49] at CB 168):
“At the end of the hearing the applicant also said that there is another incident that happened in his life in Australia that affected his course progress. He said that he was assaulted and robbed on a train. He said that another passenger on the train came to his assistance and the robbers fled the scene at the next station and that passenger called the police and the police came and took him to Cabramatta police station. He said that his aunt attending the hearing also knew about the matter because when the incident started he was talking with her over the phone and she could hear the noise. She was worried and so she called the police and the police subsequently told her that he was at the Cabramatta police station. Then his aunt went to the Cabramatta police station. He said that at that police station he gave a statement and the police arranged an ambulance to come and give him treatment. He said that subsequently the matter went to court and he gave evidence. He obtained further medical treatment from doctors subsequently. He said that the psychological impact of the incident was significant on him and he started to fear that someone was going to attack him whenever he went out after this incident. His aunt then said that she would like to provide a written statement about her observations of him following the incident. The applicant’s uncle then requested the Tribunal to adjourn the review for a period of 4 weeks so the applicant can provide supporting evidence in regard to the incident including medical evidence. The Tribunal then adjourned the review until 28 October 2012.”
The applicant subsequently provided a number of documents, including police reports (CB 139 to CB 156), to the Tribunal.
The Tribunal’s decision was made on 15 November 2012. The Tribunal set out its relevant understanding of the law, and its application, in its decision record ([6] at CB 160 to [24] at CB 164). The Tribunal, relevantly, understood that ([8] – [9] at CB 161):
“[8] The effect of s.116(1)(b) and r.2.43(2)(b)(ii) is that the visa must be cancelled if the Tribunal is satisfied that the visa holder has not complied with condition 8202, and that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.
[9] In broad terms, the questions that arise for consideration under r.2.43(2)(b)(ii) are (A) whether the applicant failed to comply with condition 8202; and if so (B) whether the non-compliance was due to exceptional circumstances beyond the applicant’s control.”
In relation to condition 8202, the Tribunal noted that ([13] at CB 162):
“…while the condition relates to course progress and attendance, it is the certification by the education provider as to breach of its course progress or attendance policies that constitutes the breach of condition, and not the unsatisfactory progress or attendance itself: Maan v MIAC (2009) 179 FCR 581 at [44]-[45].”
In relation to exceptional circumstances beyond the applicant control, the Tribunal understood ([23] – [24] at CB 164):
“[23] … the Tribunal is required to consider ‘all of the facts of the case in total’ and come to its own conclusion as to whether the applicant satisfies it that the breach was due to exceptional circumstances beyond his or her control.
[24] If the Tribunal is satisfied that the applicant did not comply with condition 8202, but is not satisfied that it was not due to exceptional circumstances beyond the applicant’s control, the prescribed circumstances under which the visa must be cancelled under s.116(3) do not exist. The absence of prescribed circumstances leaves intact the power in s.116(1), under which the Tribunal may cancel the visa. This requires the Tribunal to decide whether to cancel the visa having regard to all the circumstances.”
[Emphasis in the original.]
The Tribunal understood the applicant’s claim, relating to the train assault incident, to be ([59] at CB 170):
“…Seventh, he was assaulted and robbed on a train in late September 2009 and psychological impact of this was profound and adversely affected his CQU’s course progress subsequently.”
In relation to the train assault incident, the Tribunal found ([67] at CB 170):
“The Tribunal accepts on the basis of the evidence from the NSW Police, the applicant and the applicant’s aunt that on 22 September 2009 the applicant was assaulted and robbed. However, the Tribunal does not accept the essential claim of the applicant which has been supported by his aunt that this incident affected him so profoundly psychologically, that it was beyond his control or that he could not prevent failing 8 out of 10 units that he attempted in Term 3 – 2009, Term 1 – 2010 and Term 2 – 2010. The Tribunal makes this finding on the basis that there is no medical evidence supporting the applicant’s claim. The Tribunal adjourned the hearing for the applicant to provide evidence, including such evidence, and he did not provide any such evidence. The other reason for which the Tribunal does not accept the applicant’s claim is because if he was profoundly affected by this incident, it is unlikely that he would have performed so well, compared to his results in the subsequent terms, in his studies at the CQU in Term 2 – 2009, being from July 2009 to 30 October 2009. In this Term he attempted 4 units and he passed 3 of these units.”
[Emphasis added. Footnote omitted.]
Finally, the Tribunal concluded ([68] at CB 171):
“For these reasons … the applicant’s non-compliance with condition 8202(3)(a) was not due to exceptional circumstances beyond his control within the meaning of r.2.43(2)(b)(ii)(B).”

Before the Court

At the hearing of this matter, Mr C Jackson of counsel appeared for the applicant. Ms N Johnson appeared for the respondent Minister.
The applicant sought leave to rely on a further amended application. Leave was granted. The further amended application is in the following terms:
“Ground one.
1. The Tribunal asked the wrong question, and/or misapplied the law to the facts, and/or erred in law, that error going to jurisdiction, in its application of regulation 2.43 of the Migration Regulations (at page 161 [8]).
Ground two.
2. The Tribunal misapplied the law to the facts, misunderstood the nature of the task it had to undertake, or asked the wrong question when determining whether the Applicant’s non-compliance with a student visa condition ‘was due to exceptional circumstances beyond his control’, and thus his visa had to be cancelled in accordance with section 116(3) of the Act.
Particulars
2.1 The Tribunal asked was whether his violent assault and robbery in September 2009 had ‘affected him so profoundly psychologically, that it was beyond his control or that he could not prevent failing 8 out of the 10 units that he attempted…..’ at CGU (at Court Book, page 170, [67] (‘CBp171 [67]’)).
2.2 The correct question was;
(i) whether the violent assault and robbery was ‘an exceptional circumstance beyond his control’; and
(ii) whether the violent assault and robbery caused, in whole or in part, i.e., contributed to, his failure to make satisfactory academic progress at CGU.
Ground three.
3. The Tribunal failed to comply with section 360 of the Act in failing to put to the Applicant particulars of issues which arose out of the review (but which did not form part of the reasoning of the delegate) in order to allow the Applicant to comment on them (SZBEL (2006) 228 CLR 152 (at [42], [43] and [47]).
Particulars.
3.1 The Tribunal should have warned the Applicant that it considered that a corroborated account of psychological harm as result of a violent assault and robbery required ‘medical evidence’ in order to be accepted (at CB 170 [67]).
3.2 The Tribunal should have warned the Applicant (the relevant findings are all at CB 170 [67]);
(i) that its own enquiries about the period of term two at CQU put the end of term at 30 October 2009, AND
(ii) that it intended to implicitly infer that the exams for the three courses the Applicant passed in term two were all after his robbery and assault on a train in late September 2009, AND
(iii) that it intended implicitly to infer that the courses he passed were assessed purely on the basis of performance in the exams, AND
(iv) that a consequence of those findings, it intended to find that the Applicant’s passing of those courses after the assault and robbery indicate that ‘he was not profoundly affected by’ the assault and robbery.”

Submissions as to the Context of the Grounds

The applicant submitted that the context from which “the issue” (the train assault incident) in this case developed can be seen with reference to the transcript beginning at T24.8 to T25.1 (see [12] above).
In essence, that is the reference at the Tribunal hearing to the train assault incident, first raised by the applicant’s uncle and his aunt. They said that that incident may have distracted the applicant from his studies.
The applicant then referred the Court to his own evidence to the Tribunal about the incident (T25 to T30), and the Tribunal’s subsequent questions (T33.8 to T33.9):
“[Tribunal]:      Do you want to make a submission…I can adjourn review for a period…you…provide a submission explaining how this has affected you
..
And include supporting evidence…evidence form the police… event number and copy of the statement… evidence that you attended court …and evidence of how it affected you… you said you have been to a doctor… umm…do…would you like that…and then I can adhere the review for a period and then I will make my decision …taking to account this evidence as well
A:  Yeah
[Aunt]:              Yeah?
[Tribunal]:       Yes
How long do you need?
[Aunt]:Try as soon as possible… you’re gonna do it straight away if possible…we will do it as soon as possible…”
[I note that “M” is used in the Transcript to denote the Tribunal member speaking. For ease and clarity, in the judgment, I have used “[Tribunal]”.]

Consideration

Ground One

In ground one the applicant contends that the Tribunal variously erred in relation to the application of r.2.43 of the Regulations (see as set out at [6] above). In submissions, the applicant referred to [8] of the Tribunal’s decision record (see as set out at [16] above).
The applicant’s argument was that, with reference to r.2.43(2)(a) of the Regulations, the effect of s.116(1)(b) of the Act is that before “mandatory” cancellation can be effected there must be a finding that both s.116(1)(a) and (1)(b) are engaged. That is, that the Tribunal must first make findings as to whether a visa condition has not been complied with, and that the circumstances which permitted the grant of the visa no longer exist. This depends on a reading of r.2.43 of the Regulations as requiring that each of the subclauses be understood as needing to be read together and thereby creating a cumulative test.
Before the Court, it was eventually conceded by the applicant, that the reference to r.2.43(2)(a) of the Regulations did not assist him in the current circumstances. As the Minister submitted, each of the subclauses at r.2.43(2)(a), (aa) and (b) are not to be read as cumulative. Rather, they are alternatives relevant to particular, and separate, circumstances. As was said in Yoshua v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1553 at [27] per French J (as he then was):
“The proposition has only to be stated to be exposed as absurd. Regulation 2.43(2) sets out, in the alternative, circumstances upon which the Minister is required to cancel a visa. The use of the word ‘and’ at the end of reg 2.43(2)(a) merely connects two classes of different circumstances each of which can give rise to a mandatory cancellation.”
Nor does r.2.43(2) of the Regulations refer back to s.116(1)(b) of the Act in the way the applicant initially contended. Rather, as the Tribunal correctly set out, s.116 of the Act, and relevantly s.116(3), provides for mandatory cancellation of the relevant visa if the relevant circumstances (as prescribed in r.2.43 of the Regulations) exist. In the current case, the relevant visa was of a class to which r.2.43(2)(b) applied. The Tribunal properly referred to, and considered, the elements at r.2.43(2)(b)(ii)(A) and (B) of the Regulations.
Ground one is not made out.

Ground Two

Ground two asserts various legal errors on the part of the Tribunal in its determination that the applicant’s non-compliance with visa condition 8202 was not due to “exceptional circumstances” beyond the applicant’s control. That is, that the Tribunal, variously applied an incorrect test, misapplied the fact to the law or asked the wrong question.
The applicant referred to the Tribunal’s decision record at [67] (at CB 170) (as set out at [20] above).
While it appeared that the applicant sought to derive some advantage from the word “it” as it appears in the extract from the Tribunal’s analysis set out above, the thrust of the applicant’s complaint, (with reference to [67] at CB 170) is that the Tribunal erroneously approached its task in the following way.
First, for the purposes of r.2.43(2)(b)(ii)(B) of the Regulations, the applicant submitted that non-compliance has to be due to exceptional circumstances and, separately, that those exceptional circumstances must be beyond the visa holder’s control. The argument was that the applicant’s non-compliance must be due to both these elements.
Second, the applicant submitted that the Tribunal failed to address its task in that fashion. The applicant submitted that the Tribunal restricted itself to a different question. That is, it asked and answered the question of whether the applicant was so affected by the train assault incident that it was beyond his control to pass more than two “units” out of ten in his academic studies from term 3, 2009 to term 2, 2010.
Tribunal decision records should be read holistically, and each constituent part should be understood in context. This is implicit, at least, in the notion of a fair reading (Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 at [48]) (“Wu Shan Liang”)).
In the current case, the Tribunal set out the correct question to be asked in the circumstances presented by the application before it. That is, with reference to the relevant statutory, and for the purposes of ground two regulatory, scheme ([57] at CB 169):
“Is the Tribunal satisfied that the non-compliance was not due to exceptional circumstances beyond the applicant’s control?
[57] The Tribunal will now determine whether it is satisfied that the applicant’s non-compliance with condition 8202 was not due to exceptional circumstances beyond his control (sub-paragraph 2.43(2)(b)(ii)(B) of the Regulations).”
[Emphasis in the original.]
There is no error in the Tribunal’s expression of the relevant question here.
In this context, the Tribunal considered, properly, the various matters relevantly raised by the applicant, and the circumstances of his case. The Tribunal identified seven matters that could be said to be “…[the applicant’s] claimed exceptional circumstances beyond his control” ([59] at CB 169).
It is the seventh matter which concerns us here ([59] at CB 170.2) (see [19] above). The Tribunal’s consideration of that matter is at [67] (at CB 170) (see above at [20]). No error was asserted by the applicant before the Court in relation to the other six matters.
The applicant says that the word “it” (as it appears at the fourth line of [67] at CB 170) reveals the asserted error. That is, the Tribunal considered whether the train assault incident (to which he says the “it” refers) affected the applicant so profoundly that it was beyond his control that he failed so many units of his course. That is, the Tribunal did not ask, or consider, the two elements of what the applicant says is the “correct” relevant question. Namely, whether the train assault incident, itself, was an exceptional circumstance beyond the applicant’s control, and whether the train assault incident contributed to the applicant’s failure to make satisfactory course progress.
Regard must be had to exactly what the applicant (and his uncle and aunt on his behalf) presented to the Tribunal. Reference to this train assault incident and to its emergence as a matter for consideration, for the first time, at the hearing before the Tribunal has already been made elsewhere in this judgment (see [12] above).
The Tribunal’s own account of the hearing is consistent with the transcript of the hearing. There is no misrepresentation by, or misunderstanding of, the applicant’s claims in this regard ([49] at CB 168 and see also the applicant’s post hearing submissions CB 139 and [50] at CB 168 to [54] at CB 169). The Tribunal’s summary of this claim at [59] (at CB 170) (see [19] above) is consistent with the applicant’s presentation of it in his post hearing submissions (CB 139).
I do not agree with the applicant that the Tribunal was required to separately focus on whether the train assault incident was an exceptional circumstance and then to separately ask whether, as an exceptional circumstance, it affected the applicant’s academic progress.
The applicant’s claim was not simply the occurrence of the train assault incident. His claim was that the psychological impact of this train assault incident was so profound that it had an adverse impact on the applicant’s academic progress, such that his failing so many subjects was beyond his control.
The applicant’s focus on the train assault incident in his suggested “correct question” is, in my view, not an accurate reflection of the claim as presented (see particulars to ground two in the further amended application).
When read fairly, in context, the word “it” at [67] (at CB 170) refers, in the circumstances, to the psychological impact of the train assault incident on the applicant. As the Minister submits, the applicant did not claim that he breached the relevant visa condition because of the train assault incident in isolation. His claim was that the subsequent psychological impact, and continuing effect of the incident on him, were the causes of the breach of the relevant visa condition.
In terms of the relevant question to be asked, the Tribunal’s concluding answer also reveals it asked, and answered, the correct question ([68] at CB 171) (see as set out at [21] above).
Nor is there any error apparent in the Tribunal’s analysis at [67] (at CB 170) as to how it went about answering the correct question. At least on a fair reading, the Tribunal accepted that the train assault incident occurred. However, it did not accept that the train assault incident so profoundly psychologically affected the applicant that it was beyond his control that he failed eight out of ten subjects in three academic terms (term 3, 2009 to term 2, 2010) as a result. (That is, that he could not prevent the academic failures after the train assault incident.)
Before the Court the applicant’s counsel urged that a “fair” reading did not mean that any ambiguity in the Tribunal’s expression of its reasoning in its decision record could be excused. I agree with that proposition (SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9 per Stone J).
Further, the applicant submitted, for example, that the second sentence at [67] (at CB 170) allowed for some doubt as to what exactly the Tribunal did not accept and what it was that was beyond the applicant’s control. That is, whether the attack on the train, the subsequent psychological impact, the failing of the “units”, or all of those matters, were beyond the applicant’s control.
Ultimately, and on balance, I was persuaded by the Minister that while the Tribunal’s relevant analysis “deserves reading a few times”, when understood in the context of the claims made by the applicant, and the sequence of the claimed events, the Tribunal’s analysis does not reveal ambiguity. It survives the “fair” reading requirement.
The Minister’s reading of the Tribunal’s decision record, with which I ultimately agree, was as follows. The Tribunal accepted the train assault incident occurred. It did not accept that it affected the applicant “so profoundly psychologically” as the applicant asserted. That is, to the extent claimed by the applicant. Third, it did not accept that, in the circumstances claimed, any psychological affect was beyond the applicant’s control. Fourth, it did not accept that the applicant could not prevent, in this context, failing eight out of his ten educational units in term 3, 2009 to term 2, 2010.
In essence, the Minister’s submissions was that the diffidence in the Tribunal’s expression was explained when it was understood that the Tribunal made a number of separate findings as set out above. I accept the Minister’s submissions in this regard as being a fair reading of the Tribunal’s analysis.
The correct question for the Tribunal was whether the applicant’s

non-compliance with visa condition 8202 was due to exceptional circumstances beyond his control. The Tribunal was required to answer that question with reference to the applicant’s actual claim. That is, that the effect of the incident on his academic progress, not just the incident itself, was an exceptional circumstance beyond his control.
Having asked the right question and applied it to the claim as presented by the applicant, the Tribunal made factual findings reasonably open to it on what was before it. Ground two does not succeed.

Ground Three

Ground three asserts a breach of s.360 of the Act. The particulars to the ground assert that the Tribunal “failed to warn”, and thereby denied the applicant the opportunity to comment, on five matters. Those five matters were said to be:
1)For the applicant’s claim of psychological harm to be accepted, it required corroboration in the form of “medical evidence” (see [67] at CB 170).
2)The Tribunal’s own enquiries revealed that the end of term two, 2009 in the applicant’s course of study at the education provider was 30 October 2009.
3)The Tribunal intended to infer that the three courses the applicant had passed in term two, 2009 were after the train assault incident.
4)The Tribunal intended to infer that the courses the applicant passed were assessed purely on final examination performance, or substantively weighted to final exam performance.
5)That, as a result, the Tribunal intended to find that the applicant passing these courses, after the train assault incident meant that the applicant was not profoundly affected by the incident.
The applicant’s ground as stated, and his submission in support, reveal two things. First, a lack of understanding of s.360 of the Act and the explanation given by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) as to the obligation imposed on the Tribunal by that section. Second it must be said, a consequent misrepresentation of what relevantly occurred at the hearing before the Tribunal. These two elements give rise to the following.
First, the understanding of the obligation in s.360 of the Act provided by SZBEL requires the Tribunal to give an applicant the opportunity to give evidence, and present arguments, in relation to the issue, or issues, that arise in relation to the decision under review. That is, those issues not already apparent as a result of the delegate’s decision and which are dispositive, or determinative, of the review.
Second, there is a distinction between an issue, or issues, in the review and the substratum of facts underlying each issue. The Tribunal’s obligation in s.360 is directed to the former, not the latter (SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 per Bennett J, SZIMM v Minister for Immigration & Anor [2008] FMCA 34 at [41] – [72] per Judge Barnes, SZQSP v Minister for Immigration & Anor [2012] FMCA 890 and SZRRX v Minister for Immigration & Anor [2013] FMCA 84).
Third, as the Minister submits, the Tribunal is not obliged to “warn” an applicant about what it may, or may not, find in light of the evidence given. That is, the Tribunal is not required, at the hearing, to put its “thought process” to an applicant for comment so as to give the applicant a running commentary about what it thinks about what the applicant is putting to it. As the Minister also submits, such a course may give rise to conveying an impression of pre-judgment (Wu Shan Liang).
Fourth, the relevant issue arising in relation to the visa decision under review in the current case was whether the applicant had breached visa condition 8202 and, if so, was his non-compliance due to exceptional circumstances beyond his control? Those issues were certainly live issues as a result of the delegate’s decision (CB 43.8). In any event, the Tribunal made them clear to the applicant at the commencement of the hearing (see T2 – T3).
It is, in the circumstances presented in this case, a “moot” point whether the train assault incident was an issue (for the purposes of s.360 and SZBEL), or one of the seven sets of the substratum of facts underlying the issue (as explained at [60] above).
In his submissions the Minister appears to concede that the train assault incident, and the psychological impact on the applicant, were issues in their own right. However, even proceeding on that basis, the applicant’s third ground is not made out.
Once the matter was raised (first by the applicant’s uncle and

aunt – T24.8). and evidence given in this regard, the Tribunal put to the applicant that this claim was “something new” (raised for the first time well into the Tribunal hearing) and the Tribunal asked the applicant “…why didn’t you mention it before” (T25.6). At this time the Tribunal’s concern was whether the incident had occurred: “Did it happen?” (T25.6).
It is important to note (given the charge of a breach of s.360 of the Act, and the relationship between that section and procedural fairness) that the applicant was given the opportunity at this point of the hearing to give his evidence, and make his argument, in relation to the train assault incident (T25 to T29). The applicant was on notice of the relevance of corroboration: “Do you have any supporting evidence?” (see twice at T29.2). It is clear at this point that the supporting evidence was aimed at the question of whether the incident had occurred (police or court documents – T29.3).
The Tribunal subsequently received some relevant documents (police reports and the like) and, on this basis and on the applicant’s aunt’s evidence, accepted that the train assault incident had occurred ([67] at CB 170).
In the meantime, at the hearing the Tribunal proceeded on another, and ultimately important, matter: the applicant’s health (“…Did you see a doctor…you said he saw a doctor…” – T30.4 – recorded as having been asked by the applicant’s aunt, but in context, given the nature of the question, it must have been the Tribunal member).
Increasingly from this point, the hearing continued to focus on the impact of the incident on the applicant. In any event, the matter is put beyond doubt when the Tribunal asked the applicant: “Ummm…what happened to you after that…how did you feel…” (T31.9) and further (T32.9 to T33.9):
“[Tribunal]:     Why didn’t you mention? …see what I have to do is …is assess whether… that incident… had any bearing on your course progress… during…really the… the previous three terms before the certification… so essentially from say from beginning from March to beginning of two-thousand and ten… the whole year of two thousand and ten… now you’re doing badly in your course performance…and for that you are having these
Consultations with the…with the…CQU but there is no mention of… if it affected you that badly, you would have… discussed this with them…did you discuss?
A:  No, I did not mention that to the…
[Tribunal]:So how can I take that as…as…uh…that it affected you so badly …that your course progress was…
A:After that …uh…I didn’t feel safe to come in the train from my home to station Town hall
[Tribunal]:       Yeah
A:So I need to at least take a hour…uh…train ride so…umm…even to go to uni…and kind of have a fear that I have to go to a train station…
[Tribunal]:Okay so but why didn’t you mention this?
[Aunt]:You should mention to your…yeah
[Tribunal]Uh…one of two things could have happened…
One is that you didn’t really bother you anymore… you recovered that’s why you didn’t mention…the other is that you mentioned but they didn’t put it in there
[Uncle]:Maybe they didn’t put it here…because umm…you tend to classes you tell them, look I was attacked in the train…he say look I lost everything I need…by but I you must give it my homework, I lost it, I lost my bag, I lost all my assignment book and everything…and obviously he said look I don’t even have a ID card so when he got consultation courses probably they just mentioned whatever relevant…
[Tribunal]:You’re guessing…your speculating
[Uncle]:That’s probably what happened…he don’t want to
[Tribunal]:But you’re guessing Mr. Shrestha
[Uncle]:Well I do have to…I mean…he show the result…don’t wanna talk, this is the…this is his problem…he show result he never gonna tell anything…
[Aunt]:That’s the thinking all the time…Happening…
What uh…ummm…
[Tribunal]:Do you want to make a submission…I can adjourn review for a period…you…provide a submission explaining how this affected you
And include supporting evidence… evidence form the police…event number and copy of the statement…evidence that you attended court…and evidence of how it affected you…you said you had been to a doctor…umm… do…would you like that…and then I can adhere the review for a period and then I will make my decision…taking to account this evidence as well”
In light of this, it is difficult to see how the applicant can now complain that he was not “warned” of the relevance to the Tribunal’s consideration of the “supporting evidence”, including medical evidence, to the question of the impact of the psychological affect of the train assault incident on him. Further, if there was such an impact, the relationship between that impact and exceptional circumstances beyond the applicant’s control.

The applicant would have been on notice at the hearing that the matter to be considered by the Tribunal was whether the applicant’s

non-compliance with visa condition 8202 was due to the psychological effects of the train assault incident on him and whether that affect was an exceptional circumstance beyond his control. As the Minister submitted, not only was the applicant given time at the hearing to give evidence on that “issue”, but he was given a reasonable period after the hearing to provide supporting evidence on the issue. In this light, none of the particulars assist the applicant.
Given what is set out above, in addition, in relation to particulars 3.1 and 3.2(iv) the applicant was on notice as to the need for supporting evidence. There is no obligation on the Tribunal to then state the obvious that the absence of such evidence would not assist him. Once given the opportunity, it was up to the applicant to provide the detail required such as to satisfy the Tribunal (Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214). Having been put on notice, it was the applicant’s responsibility to make out his case such that the Tribunal could reach the requisite level of satisfaction in his favour.
If there was medical evidence in existence in support of the psychological impact of the train assault incident, as appears implicit in the applicant’s attack now, then he should have given it to the Tribunal (Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 and SGBB v Minister for Immigration & Multicultural Affairs [2003] FCA 709; (2003) 199 ALR 364). I agree with the Minister that the absence of such evidence before the Tribunal, despite opportunity given to the applicant, means that the Tribunal’s findings were reasonably open to it on what was (and was not put) before it.
Ground three is not made.

Conclusion

None of the three grounds of the application to the Court, as further amended, have been made out. In the circumstances, the application should be dismissed. I will make an order accordingly.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 5 July 2013