Chahal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 670

FEDERAL CIRCUIT COURT OF AUSTRALIA

Chahal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 670

File number(s):

BRG 335 of 2020

Judgment of:

JUDGE EGAN

Date of judgment:

7 April 2021

Catchwords:

MIGRATION – cancellation of Student Visa due to non-enrolment by the applicant – no extenuating circumstances justifying the applicant’s non-enrolment – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s 116(1)(b).

Migration Regulations 1994 (Cth), Sch 8, Condition 8202.

Cases cited:

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

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

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Number of paragraphs:

20

Date of last submission/s:

29 March 2021

Date of hearing:

29 March 2021

Place:

Brisbane

The Applicant:

Mr Chahal

Solicitor for the First Respondent:

Ms Allen of Sparke Helmore

Second Respondent:

Submitting appearance save as to costs

ORDERS

BRG 335 of 2020

BETWEEN:

RANDEEP SINGH CHAHAL

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	7 APRIL 2021

IT IS ORDERED THAT:

1.The Second Further Amended Application for Review filed on 6 February 2021 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $6,500.00.

REASONS FOR JUDGMENT

JUDGE EGAN:

1. The applicant is a citizen of India who was granted a Student (Class TU) (Subclass 500) Visa on 11 July 2017. The applicant arrived in Australia on 23 July 2017 having been enrolled to study a Master of Professional Accounting Degree.

2. On 3 May 2018, the applicant’s enrolment in his course of study was cancelled because of non-commencement of studies.

3. On 20 March 2019, the applicant was issued with a Notice of Intention to Consider Cancellation of the Visa (‘NOICC’). The notice recorded that there was a ground for cancellation of the visa pursuant to the provisions of s. 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’) because the applicant’s Provider Registration and International Student Management System (‘PRISMS’) records indicated that the applicant had not been enrolled in any course after 3 May 2018 in breach of Condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Condition 8202 relevantly provided as follows:

   “8202

   (1) The holder must be enrolled in a full-time course of study or training if the holder is:

   (a)       a Defence student; or

   (b)       a Foreign Affairs student; or

   (c)       a secondary exchange student.

   (2)      A holder not covered by subclause (1)

   (a)       must be enrolled in a full-time registered course.”

4. The applicant did not respond to the NOICC within the required five (5) day period, but upon request for an extension of time, the applicant was granted an extension of a further five (5) days until 3 April 2019. Though a representative of the applicant lodged a Form 956 Notice of Representation document on 2 April 2019, no response was ever received to the NOICC, and nor was any further extension requested.

5. On 11 April 2019, a delegate of the Minister cancelled the applicant’s visa pursuant to the provisions of s. 116(1)(b) of the Act.

6. On 17 April 2019, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate. On 21 May 2020, the applicant appeared before the Tribunal, at which time he gave evidence and presented his arguments.

7. On 27 May 2020, the Tribunal affirmed the decision of the delegate to cancel the visa.

8. Having confirmed that the applicant had failed to comply with Condition 8202(2)(a) of Schedule 8 to the Regulations, the Tribunal then considered whether it ought to consider to exercise its discretion to not cancel the visa.

9. At [15] – [16] of its reasons, the Tribunal recorded the applicant’s relevant study history in Australia as follows:

   “[15] The applicant arrived in Sydney, Australia, in July 2017 and commenced a Master of Professional Accounting. The applicant indicated in the hearing that he found the course difficult and struggled to adapt to learning in Australia, particularly in an online environment. The applicant indicated that at the end of the semester, he failed all three units. The applicant indicated that this caused him to withdraw from the course. The Provider Registration and International Student Management System (PRISMS) indicates that this course was cancelled on 29 November 2017 because of notification of cessation of studies.

   [16] In the hearing, the applicant indicated that he decided to relocate to Brisbane where his brother was located. The applicant enrolled in another Master of Professional Accounting degree with another education provider. PRISMS indicates that this was due to commence on 12 March 2018. This enrolment was cancelled on 3 May 2018 on the basis of the applicant not commencing this course. This is the cause of the visa being cancelled based on not being enrolled in a registered course.”

10. At [18] – [21] inclusive of its reasons, the Tribunal explored with the applicant whether there were any valid reasons for his not having maintained enrolment in a qualifying course of study as was required by the conditions attached to his visa. At [23] of its reasons, when considering whether there were any extenuating circumstances that could have justified the non-enrolment by the applicant in a course of study, the Tribunal said as follows:

    “[23] Considering all of the claims and evidence, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant's control that explain or justify the significant period that the applicant has not been enrolled in a registered course. The applicant should have explored options of a deferral with the education provider or explored other education options if the particular Masters course was not suitable. The Tribunal is not satisfied that family disputes and mental pressure which was not medically treated justifies the applicant not being enrolled in a registered course for 11 months and not studying for longer. This is significantly adverse to the applicant in the exercise of the Tribunal's discretion.”

11. The Tribunal was not satisfied that the applicant had considered any alternative plan in the light of his having had his visa cancelled in April 2019. The Tribunal further noted that though it accepted that the applicant would suffer some hardship by returning to India, such hardship was limited due to the applicant not having any then definitive plan as to what his future intentions were. At [30] of its reasons, the Tribunal recorded that the applicant had no children living in Australia whose interests could be effected by any visa cancellation. The Tribunal, at [32] of its reasons, recorded that the applicant might consider lodging a protection application in the event that his Application for Review of the cancellation of his Student Visa was unsuccessful.

12. At [35] – [38] inclusive of its reasons, the Tribunal found that there were no extenuating circumstances justifying the exercise of its discretion to overturn the decision of the delegate. The Tribunal said as follows:

    “[35] In summary, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant's control that justify or explain his failure to be enrolled in a registered course for a period of approximately11 months while he held the visa. This is significantly adverse to the applicant. Also adverse to the applicant is his failure to have engaged in any study in the period after enrolment was cancelled, including after the visa was cancelled. Adverse to the applicant is the fact that the applicant has no clear plan as to what he would wish to study or otherwise do in Australia if the visa was reinstated.

    [36] The Tribunal accepts some limited hardship to the applicant if the visa remains cancelled in terms of having to return to India while wishing to remain in Australia. The extent of this hardship is limited because the applicant has no current clear future plans in Australia. The Tribunal accepts other hardship in terms of limitations on applying for future visas onshore in Australia if the visa remains cancelled.

    [37]The Tribunal is not satisfied that possible harm in India towards the applicant based on his brother being gay is an overly relevant discretionary factor in this matter because the option of applying for a protection visa would facilitate possible sanctuary in Australia.

    [38]Weighing matters adverse to the applicant against various hardships that the applicant would face if the visa remains cancelled and other matters favourable to the applicant, the Tribunal readily determines that the balance lies in favour of cancelling the visa.”

    Grounds for Review

13. Having twice been ordered to file an Amended Application for Review with detailed particulars of the grounds of review, the applicant filed a Second Further Amended Application for Review on 6 February 2021. The grounds for review, though largely a historical recitation of what the applicant considered to be his relevant past history, were as follows:

    “Grounds of application

    1. Administrative Appeals Tribunal made Juridicial error by not providing me extra time to enrol in course.

    2. Dear Sir

    I came to Australia in july 2017 & was enrolled to master of accounting. I came here alone & knew nobody here.

    Being here was refreshing but also a cultural shock in terms of how people live here, jobs & how colleges run here. It was very different. I was feeling really hard in fitting in & accepting the new environment in & outside the college. I failed in all subjects of my 1st semester's exam & it was 1st time i failed academically in my life. It was really shocking for me. I wanted to change my course & wanted to take something easier but my visa terms & conditions didn't allow me to do it & i had to enroll in the same course again.

    I moved from Sydney to brisbane for a fresh start, enrolled myself again into the same course & started looking for a job & couldn't find a job for a long time. This added up to the mental pressure i was already dealing with. I had so much pressure from my mother & brother's side regarding failing academically & not being able to find a job. I never had a good relationship with my mother & brother & i still don't have a good & healthy relationship with both of them & then just before my course was about to begin I got a news from back home that my grandmother is really sick & is admitted me to the hospital. She already had a medical history of being sick in the past. That night couldn't sleep & this added more & more on my brain. I am very close to my grandmother. She's the number 1 reason I'm here in Australia. My father expired when i was 14 & after that she helped me a lot in my life. She's the one who sponsored me & helped me financially for my studies here. And after i got the news of she being sick & being admitted to hospital it was too much for me to handle mentally. She's been consistently sick from last 2 years. All this affected my mental health drastically but also affected my physical health as well. I have a heart problem & was admitted to prince Charles hospital, brisbane a year back. It's a condition where my hearts beat goes really high than a normal rate & I'm unable to breath properly. All these things lead me to current situation.

    I have attached all the medical reports of my grandmother & her ID below I have also attached my medical reports from the prince Charles hospital. And I have also attached the hospital application form below as well.

    I just need a second chance. Hopefully you’ll understand & I’ll really appreciate a 2^nd chance.

    Thankyou

    Regards

    Randeep Singh Chahal

    3.AAT's decision was wrong because they didn't tried to look into my situation completely. I told them everything about my situation. why it happened, under what circumstances it happened and still they still didn't ask me for any evidence to support my statement and situation. I even told them that i tried to change my study course into something easier because i was really struggling with my on going study course, the new environment of college and Australia & the way things are run here. But I couldn't change my study course into something easier because my student visa conditions didn't allow me to do so. I failed in my 1st semesters exams which was very shocking for me. I have also attached my Student Academic Record from Kings Own Institute (Sydney,Australia) which was my 1st college here in Australia. The Record clearly shows that i failed in all of my subjects because i found them really hard. I made efforts from myside and wanted to go for something easier to begin with but my visa conditions didn't allow me to do so. And with ongoing really stressful situation with mother, brother, my grandmother's health, my health and having no job I couldn't take it and lead me to this situation. The AA T should have noted

    •under what circumstances i went through & why it happened.

    •They should have shown some compassion for my whole situation and circumstances.

    •They should noted that i was attending to my 1st college and i gave my 1st semesters exams and i failed in all of my subjects because i found them really hard.(My Student Academic Record Attached below as an evidence)

    •They should have noted that i made efforts to change study course but I couldn't because of my student visa conditions which is absolutely a genuine reason.

    •They should have asked me to submit some evidence to support my statement & situation which they didn't but now when i was asked to submit evidence i did submit all the evidences on time in support of my situation and circumstances(All evidences are attached below)

    •They should have offered some kind of help to change my study course into some easier but they didn't.

    I believe they dismissed my matter very quickly without even fully looking into it. They should have really considered and looked into my situation & circumstances for more properly and offered me some help to change my study course to something easier. I humbly request please consider everything that I have presented, my situation, my circumstances and my efforts and please give me a second to make it better. And i know i can do this.

    Thankyou

    Regards

    Randeep”

14. The Court considered the applicant’s claims in their entirety, and as they were articulated against the dot points under Ground 3 of the Second Further Amended Application for Review. There was no merit to such grounds. The Tribunal carefully considered the applicant’s relevant educational history in Australia and noted that the applicant had not been involved in any study subsequent to November 2017. The Tribunal invited the applicant to provide some reasons as to why the Tribunal ought to exercise its discretion to overturn the decision of the delegate on the basis that there were extenuating circumstances in the case of the applicant, but the applicant was unable to provide any compelling reason why the Tribunal should do so.

15. The Tribunal weighed up all of the evidence before it and found against the applicant as it was entitled to do.  It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] - [27], where it was said:

    “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

    [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

16. Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:

    “[130] 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.

    [131] 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.

    …

    [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. 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 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 the 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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

1. Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76]      As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

2. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

3. The Second Further Amended Application for Review is without merit and is dismissed.

4. The Court will hear the parties as to costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       7 April 2021