Chopra v Minister for Immigration - [2020] FCCA 2401

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHOPRA v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2401

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359, 360, 360A, 366

Cases cited:

Inderjit v Minister for Immigration [2019] FCAFC 217
Korovata v Minister for Immigration [2001] FCA 1446
Minister for Immigration v SZVCH [2016] FCAFC 127
SZHVL v Minister for Immigration [2008] FCA 356
SCAA v Minister for Immigration[2002] FCA 668
SZNNE & Anor v Minister for Immigration (2010) 114 ALD 138

Applicant:

NAVDEEP CHOPRA

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULITCULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3363 of 2019

Judgment of:

Judge Driver

Hearing date:

24 August 2020

Delivered at:

Sydney

Delivered on:

24 August 2020

REPRESENTATION

Solicitors for the Applicant:

The applicant appeared in person

Solicitors for the Respondents:

Ms Ren

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay for the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3363 of 2019

NAVDEEP CHOPRA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Background and introduction

The applicant, Mr Chopra, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made orally on 28 November 2019. Written reasons were produced on 3 February 2020. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Chopra a student visa. The background facts and legislative provisions relating to this matter are conveniently set out in the Minister's outline of submissions filed on 10 August 2020, which I adopt.
Mr Chopra, born in 1991, is a citizen of India.[1] He first arrived in Australia on 1 January 2015 on a 573 Higher Education visa which expired in November 2017.[2] On 21 October 2017 Mr Chopra applied for a further student visa on the basis of his enrolment in an Advanced Diploma of Leadership and Management.[3] From January 2015 to September 2019, Mr Chopra enrolled in 9 different courses, of which he has completed 2: a Diploma of Business from April 2016 to March 2017 and an Advanced Diploma of Leadership and Management from July 2017 to July 2018.[4]
[1] Court Book (CB) 2
[2] CB 11
[3] CB 1, 99
[4] CB 65
On 18 January 2018 the delegate refused to grant the visa, not being satisfied that Mr Chopra was a genuine temporary entrant, as required by clause 500.212(a) of the Migration Regulations 1994 (Cth) (Migration…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 2401
Decision Date: 24 August 2020

CaseChat Overview and Summary

Chopra (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse a student visa. The applicant had been issued a notice to show cause why their visa should not be cancelled, but this application was dismissed interlocutorily. The applicant alleged jurisdictional error in the decision-making process.

The primary legal issue before the Court was whether there was an arguable case of jurisdictional error in the respondent's decision to dismiss the applicant's show cause application. This involved considering whether the respondent had failed to take into account relevant considerations or taken into account irrelevant considerations, or otherwise acted in a manner that vitiated the lawfulness of the decision.

Driver J found that the applicant had not established an arguable case of jurisdictional error. The Court reasoned that the respondent's decision to dismiss the show cause application was a preliminary step in the visa cancellation process and that the applicant had not demonstrated that this preliminary decision was infected by jurisdictional error. The applicant's submissions did not disclose a sufficient basis to conclude that the respondent had failed to undertake the required assessment or had otherwise acted outside their legal authority at that stage.

The application for judicial review was dismissed.

Orders