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SUCHDEVA v Minister for Immigration

SUCHDEVA v Minister for Immigration

Case [2018] FCCA 2404 9 August 2018

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SUCHDEVA v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2404

Catchwords:
MIGRATION – Student (temporary) (class TU) higher education sector (subclass 573) visa – applicant failed to comply with a visa condition – applicant failed to demonstrate jurisdictional error – grounds not particularised – application dismissed.

Legislation:

Migration Act 1958, s.116

Migration Regulations 1994, cl.573.231, condition 8516

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

AQN15 v Minister for Immigration & Anor [2016] FCA 571

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Australian Broadcasting Corporation v Bond (1990) 170 CLR 321

BHK15 v Minister for Immigration and Border Protection [2016] FCA 569

Chan Yee Kin v Minister for Immigration and Ethnic Affairs(1989) 169 CLR 379
Craig v State of South Australia (1995) 184 CLR 163
Kirk & Anor v Industrial Court of New South Wales & Anor (2010) 239 CLR 531

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

MZARG v Minister for Immigration and Border Protection [2018] FCA 642

WZATH v Minister for Immigration and Border Protection [2014] FCA 969

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant:

GOURAV SUCHDEVA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 221 of 2016

Judgment of:

His Honour Judge Wilson

Hearing date:

9 August 2018

Date of Last Submission:

9 August 2018

Delivered at:

Melbourne

Delivered on:

9 August 2018

REPRESENTATION

Applicant:

In person

Solicitors for the Applicant:

None

Counsel for the First Respondent:

Solicitors for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Clayton Utz

ORDERS

The application filed on 8 February 2016 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7 467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 221 of 2016

GOURAV SUCHDEVA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

Introduction

On 9 February 2015, pursuant to s 116 of the Migration Act (“Act”), the minister’s delegate decided to cancel the applicant’s student (temporary) (class TU) higher education sector (subclass 573) visa. The delegate took the view that the applicant no longer met the criteria relevant to cl 573.231 or cl 573.223(1A) and that the applicant no longer complied with condition 8516. The delegate had regard to the fact that the applicant had previously been enrolled in a higher degree course provided with the subclass 573 visa but that he had left his course provider then later enrolled in a vocational course in hospitality.
The applicant sought a merits review before the Administrative Appeals Tribunal. He was invited to attend before…

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.

Continue reading SUCHDEVA v Minister for Immigration

Details

AGLC: Suchdeva v Minister for Immigration [2018] FCCA 2404
Case: [2018] FCCA 2404
Decision Date: 9 August 2018

CaseChat Overview and Summary

Suchdeva (the applicant) sought judicial review of a decision by the Minister for Immigration concerning his Student (temporary) (class TU) higher education sector (subclass 573) visa. The applicant had failed to comply with a condition of his visa. The application was heard in the Federal Circuit Court of Australia by His Honour Judge Wilson.

The primary legal issue before the Court was whether the applicant had demonstrated a jurisdictional error on the part of the Minister or the delegate in making the decision to refuse or cancel the visa. The applicant's grounds for review were not sufficiently particularised to establish such an error.

His Honour Judge Wilson found that the applicant had failed to particularise the grounds upon which he alleged jurisdictional error. Without specific allegations of error, the Court could not identify any basis upon which to intervene in the decision. Consequently, the application for judicial review was dismissed.

Orders