Chundru v Minister for Immigration and Border Protection & Anor [2017] HCATrans 33 (16 February 2017)

Last Updated: 20 February 2017

[2017] HCATrans 033

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M170 of 2016

B e t w e e n -

VASU BABU CHUNDRU

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 16 FEBRUARY 2017, AT 10.25 AM

Copyright in the High Court of Australia

MR V.B. CHUNDRU appeared in person.

MS J.A. LUCAS: If it pleases the Court, I appear for the first defendant in this matter. (instructed by DLA Piper Australia)

HIS HONOUR: I notice there is a submitting appearance for the second defendant. Mr Chundru, I have had the benefit of reading the papers, including your application and the documents you filed in support of it. Is there anything further that you would like to add to those?

MR CHUNDRU: That is everything.

HIS HONOUR: That is everything you wish to say in support of it. Ms Lucas, is there anything further that you wish to add to the written outline?

MS LUCAS: No, your Honour.

HIS HONOUR: Thank you.

This is an application for an order to show cause why mandamus should not go to the Minister to reassess applications for class 572 and class 573 visas previously made and rejected. The plaintiff also seeks certiorari to quash an order of the Federal Court of Australia dismissing an application for leave to appeal from an order of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal that affirmed a decision of the Minister’s delegate to cancel the plaintiff’s Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa.

In brief, the facts are that on 17 June 2013, the plaintiff was granted a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa. I shall call it the 573 visa. It was a condition of the 573 visa that the plaintiff remain enrolled in an eligible higher education level course.

On 4 August 2014, the plaintiff’s enrolment in a Master of Information Systems program in the University of Ballarat was cancelled at his request, and on 14 July 2014, he enrolled in a Certificate III in Commercial Cookery with Vocational Education and Training. On 6 November 2014, he applied for a TU 572 Vocational Education and Training Sector visa, but that application was refused.

On 31 October 2014, the plaintiff was issued with a notice of intention to consider cancellation of the 573 visa, and, on 15 January 2015, the Minister’s delegate cancelled the 573 visa because of the plaintiff’s failure to comply with the condition that he remain enrolled in an eligible higher education level course.

The applicant applied to the Administrative Appeals Tribunal and the matter first came on for hearing on 28 April 2015. He sought and was granted additional time in which to provide further evidence. In fact, however, he did not provide any further evidence.

A second hearing was held on 8 October 2015 before a differently constituted Tribunal, and, on 9 October 2015, the Tribunal affirmed the delegate’s decision. In its reasons for decision, the Tribunal recorded that it was satisfied that the plaintiff had not complied with the condition of the 573 visa that he remain enrolled in an eligible higher education level course.

The plaintiff applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s determination. Following a hearing on 11 July 2016, Judge Riethmuller dismissed the application. Contrary to the plaintiff’s claims, his Honour held that it was not demonstrated that the Tribunal had ignored the plaintiff’s claims, that the plaintiff had been given extra time to provide documents, and that it was not established that the plaintiff had been offered a place at another institution to study for a Master of Business Administration degree. His Honour concluded that it had been open to the Tribunal to decide, as it had, that the plaintiff was not a genuine student.

On 29 June 2016, the plaintiff applied for leave to appeal to the Federal Court of Australia, but, on 21 November 2016, her Honour Justice Kenny held that it was not shown that Judge Riethmuller’s decision was attended by sufficient doubt to warrant the grant of leave. Her Honour concluded that the plaintiff had failed to demonstrate that an appeal would enjoy any prospect of success.

Unfortunately, the plaintiff’s application for order to show cause does not identify any arguably intelligible basis for the relief which is sought. As the matter stands, there is no reason to doubt the decision of the Tribunal or the decisions of the Federal Circuit Court and the Federal Court. Upon the evidence before it, the Federal Circuit Court was right to refuse judicial review of the Tribunal’s decision and the Federal Court was correct to reject the plaintiff’s application for leave to appeal.

The plaintiff requires an extension of time but for the reasons I have stated an extension of time would be futile. The application is accordingly dismissed with costs.

AT 10.32 AM THE MATTER WAS CONCLUDED