KAUR v Minister for Immigration - [2018] FCCA 2680

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2680

Catchwords:
MIGRATION – Cancellation of Student visa – first applicant’s enrolment in course of study cancelled for non-commencement of that course – first applicant notified of cancellation seeks review of decision by Tribunal – first applicant confirms that enrolment in course of study was cancelled for non-commencement – application for judicial review – no error demonstrated – show cause hearing – no arguable case shown – no discretionary reason indicated why matter should not be dismissed – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958 (Cth), ss.116, 140, 474, 476.

Cases cited:

First Applicant:

RANDEEP KAUR

Second Applicant:

GURPREET SINGH UPPAL

Third Applicant:

HARJASHANPREET SINGH UPPAL

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1062 of 2017

Judgment of:

Judge A Kelly

Hearing date:

18 September 2018

Date of Last Submission:

18 September 2018

Delivered at:

Melbourne

Orders pronounced:

18 September 2018

Delivered on:

21 September 2018

REPRESENTATION

The First Applicant:

In person

Solicitor for the First Respondent:

Mr van der Westhuizen

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

Pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001, the application filed on 23 May 2017 be dismissed.
The first applicant pay the costs of the first respondent fixed at $3,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1062 of 2017

RANDEEP KAUR

First Applicant

GURPREET SINGH UPPAL

Second Applicant

HARJASHANPREET SINGH UPPAL

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 23 May 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 April 2017 affirming a decision of a delegate of the first respondent (Minister) to cancel the first applicant’s Subclass 573 Higher Education Sector visa under s 116(1)(b) of the Migration Act 1958 (Cth) (Act).
Subject to certain express constraints, s 116(1)(b) confers a discretionary power on the Minister to cancel a visa where the holder…

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.

Keep reading for free

Create a free CaseChat account to read KAUR v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 2680
Decision Date: 21 September 2018

CaseChat Overview and Summary

The applicants, Mr. and Mrs. Kaur, sought judicial review of a decision by the Minister for Immigration to cancel Mr. Kaur's student visa. Mr. Kaur's enrolment in a course of study was cancelled by the educational institution due to his non-commencement of that course. Following notification of this cancellation, Mr. Kaur sought review of the Minister's decision by the Administrative Appeals Tribunal. The Tribunal confirmed the cancellation, and the applicants subsequently filed for judicial review of the Tribunal's decision.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the Tribunal had erred in law in affirming the cancellation of Mr. Kaur's student visa. Specifically, the court considered whether the Tribunal had failed to provide adequate reasons for its decision or had otherwise acted contrary to legal principles in its assessment of the matter.

Judge A Kelly found that the Tribunal had properly considered the evidence before it, including Mr. Kaur's confirmation that his enrolment had been cancelled for non-commencement. The court determined that the Tribunal had conducted a valid show cause hearing and concluded that no arguable case had been made out by the applicant to warrant setting aside the cancellation. Furthermore, the court found no discretionary reason indicated by the Tribunal why the matter should not be dismissed. Consequently, the application for judicial review was dismissed.

Orders