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

BACKGROUND 4 The appellant, who is a citizen of India, arrived in Australia on 23 July 2017. The appellant was the holder of a Student (Temporary) (class TU) Student (subclass 500) visa which was based upon his enrolment in a course of study - a Master of Professional Accounting degree. The visa was granted on 11 July 2017. 5 On 3 May 2018, the appellant's enrolment was cancelled with the reason being "non-commencement of studies" (see AB p 5). 6 On 20 March 2019, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) issued a Notice of Intention to Consider Cancellation (NOICC) of Student (Temporary) (class TU) Student (subclass 500) visa under s 116 (General Power) of the Migration Act 1958 (Cth). The appellant was advised that "there appears to be a ground for cancellation of your visa under paragraph 116(1)(b) of the Migration Act" on the basis that the appellant had not complied with a condition attached to the visa, namely that, according to the appellant's Provider Registration and International Student Management System (PRISMS) records, the appellant was not enrolled in a full-time registered course from 3 May 2018, which was a breach of condition 8202(2)(a). 7 A response was required within five working days. 8 Following a request for an extension of time by the appellant, an extension was granted until 3 April 2019. 9 On 2 April 2019, the appellant's representative provided an "Advice by a migration agent/exempt person of providing immigration assistance". The person nominated as providing the migration assistance was Mr Shuonan Zhao, a solicitor and migration agent, from Brightstone Legal who, in an email sent on the same day, said: "We have been instructed to disseminate to and receive correspondence from the Department [of Home Affairs] on Mr. Singh's behalf in this matter. In the premises, please direct all future correspondence to our office". No response was received to the NOICC. 10 On 11 April 2019, the delegate to the Minister made a decision to cancel the appellant's visa and the appellant was informed of this decision on the same day. The delegate concluded that: "After weighing up all of the information available, I was satisfied the grounds for cancelling your visa outweighed the reasons for not cancelling". The basis of the cancellation was that the appellant had not complied with subclause 8202(2)(a) of condition 8202 attached to the appellant's visa. On 11 April 2019, an email was sent to Mr Zhao at Brightstone Legal informing the appellant of the decision and enclosing the decision record. 11 On 17 April 2019, the appellant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision. 12 The application for review contained information indicating that the appellant was represented by a registered migration agent, Mr Harjeet Singh of Visa Explore Migration and Education Services, with an email address of visaexploreaustralia@gmail.com. The Tribunal acknowledged receipt on 18 April 2019 to Mr Harjeet Singh enclosing a letter addressed to the appellant, noting that, "as the authorised recipient of the [appellant]", the Tribunal was required to give to Mr Harjeet Singh, instead of the appellant, any document that would otherwise have been given to the appellant. The enclosed letter indicated that: "If you wish to provide material or written arguments for us to consider, you should do so as soon as possible". The letter concluded by providing an email address and a national enquiry line telephone number if the appellant had any questions. 13 On 6 May 2020, the Tribunal forwarded a letter to Mr Harjeet Singh enclosing a letter addressed to the appellant providing details of the hearing date on 21 May 2020. 14 The letter advised the appellant to: "Please provide all documents you intend to rely on to establish that you meet the criteria for the visa at least 7 days before the hearing". Again, reference was made to an email address and the Tribunal's national enquiry line telephone number in the event that the appellant had any questions. A "Response to hearing invitation" was enclosed for completion by the appellant and return. 15 A further email was forwarded to Mr Harjeet Singh on 19 May 2020 confirming the hearing on 21 May 2020 and seeking the "Response to hearing invitation" completed by the appellant. 16 In the response of 19 May 2020, the appellant indicated that he would be participating in the hearing, but that his representative, Mr Harjeet Singh, would not be participating. 17 In response to the question under "Part 3 - Documents to be relied on at the hearing" - "Do you intend to rely on any documents at the hearing, e.g. written witness statements, written submissions, country information or other evidence?" - the appellant ticked "No". 18 On 21 May 2020, the appellant appeared before the Tribunal, gave evidence and made submissions. 19 On 27 May 2020, the Tribunal affirmed the delegate's decision to cancel the appellant's visa. A letter was forwarded to Mr Harjeet Singh dated 27 May 2020 which enclosed a letter to the appellant of the same date as well as the decision record dated 27 May 2020. 20 On 18 June 2020, the appellant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal's decision, filing a further amended application on 6 February 2021. 21 The primary judge concluded that the appellant had failed to establish jurisdictional error on the part of the Tribunal and dismissed the application. 22 The appellant appeals from the decision of the primary judge to this Court.

THE TRIBUNAL DECISION 23 The Tribunal noted that the issue was whether the appellant, as holder of a student visa, had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). 24 The Tribunal noted that the appellant's visa was cancelled on the basis that the appellant was not enrolled in a full-time registered course. The appellant acknowledged that he had ceased to be enrolled in the registered course. The Tribunal concluded that, on the evidence before the Tribunal, the appellant was not enrolled in a registered course and accordingly had not complied with condition 8202(2). 25 Having made that finding, the Tribunal considered whether to exercise its discretion to cancel the visa. 26 In doing this, the Tribunal had regard to the matters raised by the appellant as to why the visa should not be cancelled and government policy guidelines contained in the Department of Home Affairs' Procedures Advice Manual. These matters were listed to include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose (whether there were extenuating circumstances beyond the visa holder's control); the visa holder's past and present behaviour towards the Department of Home Affairs; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (that is, consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations); provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation; whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters. 27 The Tribunal noted that the appellant gave evidence that he found the course difficult and struggled to adapt to learning in Australia, particularly in an online environment, with the result that, at the end of the first semester, he failed all three units. The appellant gave evidence that this caused him to withdraw from the course. 28 The appellant gave evidence that he decided to relocate to Brisbane where his brother was located and that he enrolled in another Master of Professional Accounting degree with another education provider. PRISMS indicated that this was to commence on 12 March 2018. This enrolment was cancelled on 3 May 2018 on the basis of the appellant not commencing this course. This event caused the cancellation of the visa because of the appellant not being enrolled in a registered course. 29 The Tribunal noted that, although there was no restriction on the appellant's bridging visa in terms of the ability to study, there was no evidence of the appellant being enrolled in any subsequent course either before the visa was cancelled or after. 30 The appellant gave evidence that he enrolled in the Master of Professional Accounting course rather than an easier course because his migration agent advised him that his visa required him to be enrolled in a course at Masters level. The appellant indicated that he did not commence this course because of a confluence of issues causing mental distress, including arguments with his brother, broader family problems and the appellant not being able to find a job. The appellant gave evidence that he did not receive any medical attention or assistance for his mental health issues. 31 The appellant indicated that he had not sought deferral on medical or compassionate grounds from the education provider. 32 Considering the claims and the evidence, the Tribunal concluded it was not satisfied that there were extenuating circumstances beyond the appellant's control that would explain or justify the significant period that the appellant had not been enrolled in a registered course. The Tribunal was not satisfied that family disputes and mental pressure which was not medically treated justified the appellant not being enrolled in a course for 11 months and not studying for longer. These were factors which were significantly adverse to the appellant in the exercise of the Tribunal's discretion. 33 The Tribunal accepted there would be some hardship to the appellant if he was to return to India given that he may wish to remain in Australia. However, the level of hardship was limited due to the appellant not having any current definitive plan as to what he would study or otherwise do in Australia or what options he would pursue. The Tribunal concluded this was adverse to the appellant. 34 The Tribunal noted that there were no children in Australia whose interests would be affected by the cancellation. 35 In response to a question by the Tribunal, in relation to whether the appellant feared persecution or significant harm were he to return to India, the appellant indicated that he feared possible harm because his brother in Australia is gay, a fact about which his family in India had become aware. The appellant indicated that he may explore the option of a protection visa if the student visa remained cancelled. The Tribunal concluded that the issue of protection was not a relevant discretionary factor which would be taken into account. 36 In summary, the Tribunal was not satisfied that there were extenuating circumstances beyond the appellant's control that justified or explained his failure to be enrolled in a registered course for approximately 11 months whilst he held the visa. The Tribunal considered this significantly adverse to the appellant. Moreover, the Tribunal considered that the appellant's failure to engage in any study in the period after his enrolment was cancelled, including after the visa was cancelled, was adverse to the appellant. Moreover, the appellant had no clear plan as to what he would wish to study or otherwise do in Australia if the visa were reinstated. 37 The Tribunal accepted some limited hardship to the appellant if the visa remained cancelled in terms of having to return to India whilst wishing to remain in Australia. The Tribunal concluded that the extent of this hardship was limited because the appellant had no current clear future plans in Australia. 38 The Tribunal was not satisfied that possible harm in India towards the appellant based upon his brother being gay was an overly relevant discretionary factor because the option of applying for a protection visa would facilitate possible sanctuary in Australia. 39 Weighing factors adverse to the appellant against the various hardships that the appellant would face if the visa remained cancelled and other matters favourable to the appellant, the Tribunal determined that the balance lay in favour of cancelling the visa. 40 The Tribunal concluded that the visa should be cancelled and affirmed the decision of the Minister to cancel the appellant's Class TU visa.

PROCEEDINGS IN THE FEDERAL CIRCUIT COURT 41 The grounds for the appeal to the Federal Circuit Court of Australia follows: 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 application form below as well. I just need a second chance. Hopefully you ll understand & i ll really appreciate a 2nd 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 on going 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 AAT 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 (Errors and emphasis in original) 42 The primary judge found there was no merit to the grounds relied upon by the appellant. The primary judge noted that the Tribunal had carefully considered the appellant's relevant educational history in Australia, that the Tribunal had invited the appellant to provide 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 appellant, but that the appellant was unable to provide any compelling reason why the Tribunal should do so ([14] of the reasons). 43 The primary judge noted that the Tribunal weighed up all the evidence before it, including making enquiries about relevant factors in line with the requirements outlined in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39. The primary judge concluded that it could not be said that no other rational or logical decision-maker could have made the same decision as the Tribunal (at [16] of the reasons) and also that the decision of the Tribunal could not be considered as legally unreasonable or one lacking an evident and justifiable justification as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. 44 The primary judge concluded that the appellant had failed to establish jurisdictional error on the part of the Tribunal and ordered that the second further amended application for review be dismissed. The primary judge also ordered that the appellant pay the Minister's costs of and incidental to the application for review fixed in the amount of $6,500.

DISCUSSION 45 Ground 3 - "Who is supposed to help an international student who just arrived here in Australia and who is not aware about all the rules and law" - and ground 5 - "I am an international student who cant afford a lawyer and i am not a professional lawyer myself. So i don't anything about how this exactly works. I should have been made aware about all the rules that i need to know by someone" (errors in original) - are not grounds of appeal. They do not identify any error on the part of the primary judge (or the Tribunal). 46 Ground 1 refers to a number of the issues which were ventilated both before the Tribunal and also the primary judge. The appellant referred to: (a) his desire to change his course into "something easier", but his visa conditions not allowing him to do so; (b) his ongoing existing course was "so hard that i failed in all subject" (errors in original); (c) his confusion about rules; (d) his really bad mental health, his grandmother's health, a toxic relationship with his mother and brother; and (e) being jobless for months and months. 47 The appellant referred to having explained all of these issues in the amended application submitted in the Federal Circuit Court. 48 As the primary judge observed, the Tribunal found that the appellant had failed to comply with condition 8202(2)(a) of Schedule 8 to the Regulations and then considered whether he ought to consider to exercise his discretion to not cancel the visa. As the primary judge noted, the Tribunal reviewed the appellant's relevant study history in Australia (including the reasons for the enrolment being cancelled and the fact that the appellant had not been involved in any study subsequent to November 2017); considered any other extenuating circumstances that could have justified the non-enrolment by the appellant in a course of study (including whether the appellant should have explored options for deferral with the education provider or explored other education options if the particular Masters course was not suitable); and issues related to family disputes and mental pressure in not being satisfied that there were extenuating circumstances beyond the appellant's control that explained or justified the significant period that the appellant had not been enrolled in a registered course. The analysis undertaken by the Tribunal is evident from the summary outlined under the heading "The Tribunal Decision" in these reasons. 49 The primary judge concluded there was no merit to this ground. The primary judge correctly noted (as is demonstrated in the earlier summary contained in these reasons) that the Tribunal had weighed up all the evidence before it and found against the appellant, as it was entitled to do. 50 The primary judge further noted that the Tribunal made enquiry about the critical facts (as summarised under the heading "The Tribunal Decision" in these reasons) and that it could not be said that no other rational or logical decision-maker could not have made the same decision as the Tribunal. The primary judge concluded, moreover, that the decision of the Tribunal could not be considered as legally unreasonable or one lacking an evident and justifiable justification. There is no error in the way in which those matters were approached by the primary judge. 51 Ground 1 must fail. 52 Ground 2 relates to an asserted refusal by the primary judge to accept evidence which was not before the Tribunal. The appellant's argument is that "I am not professional lawyer and i am not aware of all the rules & the law. Had i know i can I would have provided all the evidences to AAT as well" (errors in original). 53 The issue which was to be determined by the primary judge related to whether the Tribunal fell into jurisdictional error. As was said by Gordon J in MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912: "The function of judicial review is a process by which legal error might be corrected, leaving the primary decision maker as wholly responsible for determining questions of fact or the merits of any application". Because of the nature of that enquiry, new evidence not before the Tribunal was not relevant. The primary judge was not in error in rejecting that evidence. 54 The evidence in question is said to be contained within the appellant's submissions before this Court. It falls into two categories, namely: (a) some medical records relating apparently to the appellant's grandmother dated in 2018 and 2019; and (b) some medical evidence relating to the appellant (in oral submissions the appellant indicated it related to a heart complaint). 55 As to the question of medical issues, the Tribunal concluded that it was not satisfied "that family disputes and mental pressure which was not medically treated justifies the [appellant] not being enrolled in a registered course for 11 months and not studying for longer". The information attached to the appellant's submissions did not deal with mental pressure or treatment. Insofar as the appellant was concerned, the records seem to record one complaint of chest pain. 56 As to the appellant's suggestion that he was not a professional lawyer and not aware of the rules and the law, as described in the "BACKGROUND" section, the appellant was advised by Mr Zhau, a solicitor and migration agent, and also Mr Harjeet Singh of Visa Explore Migration and Education Services. This was at least from the time the appellant received the NOICC of Student (Temporary) (class TU) Student (subclass 500) visa and up to the time of the hearing before the Tribunal. 57 As set out at [14] of these reasons, the Tribunal reminded the appellant to provide all documents on which the appellant intended to rely at least 7 days before the hearing. This was sent to the Mr Singh representing the appellant. Further, as is referred to at [17], in the response to hearing invitation, the appellant answered "No" to the question of whether the appellant intended to rely on any documents. 58 In each of those communications the appellant was provided with an email address and national enquiry telephone number if the appellant had any questions. 59 Ground 2 must fail. 60 Ground 4 related to the order made by the primary judge that the appellant pay the Minister's costs fixed at $6,500. The appellant's assertion is that he was not aware that, if his application was dismissed, he would be liable to pay the Minister. He submitted that he was not told about this. 61 In relation to the costs issue, the Minister sought orders that: 1. The application be dismissed. 2. The [appellant] pay the first respondent's costs of these proceedings. 62 The Court's power to award costs is discretionary. There is no error in the primary judge exercising the discretion in favour of making the costs order.

COSTS 63 The appellant opposes the making of a costs order in these proceedings. In opposing this order, the appellant submitted, in oral submissions, that he was never informed of the possibility that, if he was unsuccessful, there might be an order made that he pay the Minister's costs. 64 From the Bar Table, the appellant read from a notice received from the Court which indicated that, in the event that the appellant were not to appear at the hearing, then the judge might proceed to dismiss the appeal and make an order for costs. The appellant took this as meaning that, if he did appear at the hearing, then no order for costs would be made. 65 The Court notes that, in material sent to the appellant by the Court on 22 April 2021, a section is included headed "Costs", which reads: At the conclusion of the proceedings, the Court may order that the unsuccessful party pay the legal costs and expenses incurred by the successful party. These costs are different from Court fees that are payable to the Court Registry for filing your application and for setting down of the hearing. If you are unsuccessful or discontinue your proceedings in this Court, you may still be required to pay the Minister's legal costs. If you are ordered to pay costs, you will need to discuss this directly with the Minister's lawyer. 66 The Minister has submitted that the amount sought by the Minister, in the sum of $4,000, is significantly less than the amount that could be claimed in a short form bill for an appeal involving a migration decision that is dismissed after hearing, namely $7,241 (Federal Court Rules 2011 (Cth), Item 15 of Schedule 3). In seeking payment of the sum of $4,000, the Minister submitted that this sum was reasonable and proportionate to the nature, including the complexity, of the case. Having regard to the amount which might be claimed in the short form bill, namely $7, 241 (Federal Court Rules 2011 (Cth), Item 15 of Schedule 3), I conclude that the sum of $4,000 is reasonable and proportionate to the nature of the claim. 67 In those circumstances, I will order that the appellant pay the costs of the Minister fixed in the sum of $4,000. 68 The Court orders: (1) The appeal be dismissed. (2) The appellant pay the costs of the first respondent fixed in the sum of $4,000. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thomas.