Chopra v Minister for Immigration, Citizenship and Multicultural Affairs

LOGAN J: 1 On 21 September 2020, Mr Navdeep Chopra (Mr Chopra) filed an application for an extension of time within which to seek leave to appeal against interlocutory orders made by the then Federal Circuit Court of Australia (Circuit Court) on 24 August 2020. On that date, for reasons given ex tempore, that is, orally, the Circuit Court dismissed, pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), an application by Mr Chopra for the judicial review of a decision made orally by the Administrative Appeals Tribunal (Tribunal) on 28 November 2019. On 3 February 2020, the Tribunal furnished in writing reasons for that decision. 2 The time limit in which to apply for leave to appeal against the Circuit Court's interlocutory order was 14 days, see r 35.13 of the Federal Court Rules 2011 (Cth). 3 Mr Chopra filed with his application a supporting affidavit. The affidavit has annexed to it a draft notice of appeal. In addition, Mr Chopra relates in his affidavit that he relied on advice given to him by his then migration agent as to the time within which he could challenge the Circuit Court's order. He states that had he realised that the true time limit was 14 days, he would have filed his application for leave to appeal within that time. As it is, the application was filed but 14 days late. 4 The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), who is the only active party respondent, candidly acknowledged in submissions made on his behalf by Mr Goodwin of the Australian Government Solicitor's Office that the delay was relatively slight and occasioned no particular prejudice to the Minister. It was recognised in the Minister's submissions, both oral and earlier in writing, that the real issue in respect of the application was not so much whether there was occasion for the granting of an extension of time, but rather whether, in any event, even were an extension granted, the proposed grounds of appeal enjoyed a sufficient prospect of success to warrant a grant of leave to appeal. 5 As to an extension, while there are no different rules of court applicable to litigants in person, I do not doubt that Mr Chopra always intended to seek to challenge the orders made by the Circuit Court within the time allowed under this Court's rules. It is evident that he acted on that understanding in filing the application for an extension of time when he did. So in that sense he has not delayed; it is just that he has been misinformed. 6 Not every inaccurate advice by a lawyer or even, for that matter, migration agent is in itself occasion for the granting of an extension of time; such questions are inherently fact-specific to particular cases. Were the delay gross, as a result of inaccurate advice, that may be occasion for the refusal of an extension nonetheless. 7 In this case, and while prospective merits are relevant to whether to grant an extension, I consider the interests of justice are better served by granting Mr Chopra the requisite extension of time and confronting, directly, in the context of a leave to appeal application, whether or not the proposed grounds enjoy a sufficient prospect of success to warrant a grant of leave to appeal. 8 The proposed grounds of appeal are as follows: 1. His Honour erred by failing to take into account relevant considerations. Particulars a) His Honour failed to have regard to the reasons why the Appellant was unable to finish his Bachelor's degree, namely because his College would not let him due to an audit. 2. His Honour erred by not finding that the Second Respondent denied the Appellant procedural fairness. Particulars a) The Appellant was not provided an interpreter at the hearing before the Tribunal. 3. His Honour erred by engaging in a merits review of the Appellant's case. Particulars a) His Honour found that the need for an interpreter was counter-productive to the Appellant's claim to the Honourable Court. 4. Further, or in the alternative to Ground 3, His Honour erred by taking into account an irrelevant consideration. Particulars a) His Honour found that the need for an interpreter was counter-productive to the Appellant's claim to the Honourable Court. 5. His Honour erred by not finding that the Tribunal had made an erroneous finding of fact. Particulars a) The Tribunal had found that the Appellant's score of O in one of his subjects demonstrated that he had made no effort to complete the units when in fact his college did not enable him to undertake the subjects whilst it was being audited. 6. Further grounds and particulars to be provided upon obtaining a transcript. 9 It is necessary when considering the grounds of appeal to recall that Mr Chopra seeks to invoke an exercise of this Court's appellate jurisdiction. The original jurisdiction to review, judicially, a decision of the Tribunal is vested in the Circuit Court, not this Court. The issue before the Tribunal was the review of a decision of a delegate of the then Minister on 18 January 2018 to refuse to grant Mr Chopra a class 573 Higher Education visa. 10 That refusal was based on an absence of satisfaction that Mr Chopra was a genuine temporary entrant as required for that class of visa by cl 500.212(a) of the Migration Regulations 1994 (Cth) (Regulations). The Tribunal's role was to decide afresh, and in place of the delegate, whether or not to grant Mr Chopra that visa. In turn, the role of the Circuit Court was to determine whether the Tribunal's decision, which was to affirm that of the delegate, was attended with jurisdictional error. The Circuit Court dealt with that question in a pre-emptory way pursuant to r 44.12(1)(a) of that court's rules. 11 As to the first of the proposed grounds of appeal, it might be said that its focus misconceives the role of the Circuit Court. On one reading of the ground, it seeks to impeach the Circuit Court's judgment on the basis of a failure to make a particular finding of fact. However, it is possible to read the ground, perhaps benevolently, in another way, which is that the Circuit Court should have concluded that the Tribunal had failed to take into account a relevant consideration. 12 One difficulty about that proposed ground, so read, is that the relevant consideration was the visa criterion found in cl 500.212, not in terms, the applicant's inability to finish a bachelor's degree. In any event, if one delves into the reasons of the Tribunal, it is apparent that the Tribunal did take into account the fact that there had been an inability to complete a bachelor's degree course because of an audit or review of the accreditation of the college concerned. So the foundation for the first of the proposed grounds is lacking. 13 The Tribunal stated, at [22], of its reasons: 22. The tribunal accepts the evidence of the applicant [Mr Chopra], which was also emphasised in submissions made by Mrs Agrawal [the migration agent], that there were college closures and issues pertaining to audits of some colleges which has interrupted the applicant's studies such that he has had to transfer from one course provided to another, partway through his studies. But even take into account all of that does not explain why the last four and a half years continued to be a somewhat dismal history for the applicant in terms of educational pursuits (not completely dismal, because I have already referred to the fact that he successfully completed a Diploma of Business). 14 As can be seen, the Tribunal did take into consideration the circumstance, contrary to the basis upon which the proposed ground is predicated. 15 As to the second of the proposed grounds, it may readily be accepted that a failure to conduct a hearing in a language understood by an applicant would amount to jurisdictional error on the part of the Tribunal. The Tribunal would have failed to provide, on request, the required hearing in respect of the application for review. Further, the conduct of a hearing in a language which an applicant did not understand would constitute an egregious denial of procedural fairness to that applicant. 16 All of this was well understood by the learned primary judge, as is evident from his Honour's reasons for judgment. It is just that, as his Honour found, the applicant had, by his migration agent, not indicated a need for an interpreter at the hearing before the Tribunal. That hearing has not been shown on evidence otherwise to have given rise to a basis for a conclusion that there was, nonetheless, a need for an interpreter. As was highlighted on behalf of the Minister in submissions today, Mr Chopra had the benefit of a migration agent to conduct that hearing. 17 The hearing was conducted by the Tribunal via a telephone means. That type of hearing certainly presents limitations in terms of the range of communication as between bench, advocate and witness. In particular, it deprives each of such persons of visual means of communication. Sometimes it can be obvious through observation that a person apparently following a hearing is in truth not, because of particular, observed, non-verbal responses that are given. 18 Even allowing for that, there was no evidence before the Circuit Court, either from the migration agent or Mr Chopra, which admitted of a conclusion that the hearing before the Tribunal had miscarried because of an absence of an interpreter. So ground 2, which seeks to challenge an adverse conclusion by the Circuit Court, does not strike me as having any reasonable prospect of success. 19 Grounds 3 and 4, as was submitted on behalf of the Minister, are, on analysis, really directed to what are in the nature of gratuitous observations made by the Circuit Court, as to why it may well have been that Mr Chopra did not seek to have an interpreter before the Tribunal. Those observations, though, were not dispositive of the procedural-fairness ground of review challenge based on an absence of an interpreter. They may well have been explanatory, but equally they were, with respect, unnecessary observations. 20 Neither of grounds 3 or 4 is of and in itself a basis for a granting of leave to appeal. 21 Before turning to proposed ground 5, I do no more than observe in respect of proposed ground 6 that it anticipates that there may be further proposed grounds of appeal. As it transpired, there were no further proposed grounds. 22 Reverting to proposed ground 5, it may first be said of it that it seeks to raise an issue which was not a ground of review before the Circuit Court. In itself, that will require leave to raise that ground. And it needs to be recalled that parties should bring forward in the original jurisdiction grounds of challenge, rather than seeking to raise for the first time at appellate level, a particular ground upon which it is said that a Tribunal decision was attended with jurisdictional error. To approach the question of whether to grant permission, with any other disposition, would reduce an exercise of original jurisdiction to nothing more than a preliminary skirmish. 23 For all that, there can be cases where in the absence of any prejudice to a respondent the interests of justice in a particular case demand that even though a point was not taken in the original jurisdiction it should, nonetheless, become an issue on appeal. 24 The Tribunal was required in conducting the review to reach a state of administrative satisfaction in relation to whether Mr Chopra was a genuine student in terms of cl 500.212 of the Regulations. 25 Satisfaction-based decisions are not immune from scrutiny on judicial review - see, notably, a discussion on this subject by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. One basis upon which a satisfaction-based administrative decision might be impeached on judicial review is where the reasoning process that led to an absence of the requisite satisfaction was infected by a wrong finding of fact. 26 I quashed a decision of the Refugee Review Tribunal on just such a basis in SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 (SZLGP). That case, amongst many others, was taken up by Flick J in a helpful discussion of the means by which credibility-based findings might be reviewed in this Court: see SZSHV v Minister for Immigration and Border Protection [2014] FCA 253. His Honour's statements of principle, which included reference with approval to SZLGP, was regarded as sound by the Full Court in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 406. In turn, I referred to each of these cases, and others, in quashing an administrative decision in Johnson v Minister for Home Affairs [2018] FCA 1940. 27 I mention these cases because, in principle, had the Tribunal made a wrong finding of fact in relation to reasons for Mr Chopra's progression or absence of progression and attainments or absence of attainments in his studies, it is just possible that there may be an arguable case that this had infected the absence of satisfaction by the Tribunal as to his being a genuine student. 28 The difficulty for Mr Chopra, as was demonstrated in the submissions for the Minister, is that, on analysis, the statements made by the Tribunal, at [25] and [26], have foundations in supporting material before the Tribunal. At these paragraphs of the Tribunal's reasons the Tribunal stated: 25. The difficulty, again, with all of this is that has occurred between his start in Australia in 2015 and now - November 2019 - he has previously enrolled in another Bachelor's degree, a Bachelor of Accounting. And that appears to be at Universal Business School, Sydney, which the applicant provided a copy of. Group Colleges Australia is the name that he has identified, but it is under the trading name, it appears, on the academic transcripts, to be Universal Business School in Sydney. And it discloses that he attempted or enrolled in four units there in 2018 and 2019. For those units he scored 35 out of 100 in business economics, he scored zero in quantitative methods. He scored 21 out of 100 in dimensions of knowledge society, and he scored a zero in corporate finance. 26. So he has had all this time since he made a poor start in 2015 to get his education back on track and demonstrate that he can perform. The most recent academic transcript that the tribunal has is, quite frankly, appalling. The marks of zero in quantitative methods and corporate finance demonstrate that the applicant has made absolutely no effort whatsoever in attempting to complete these units. The tribunal rejects his evidence that he tried as hard as he could. Based on this evidence this tendency not to achieve at all in his enrolment in Bachelor's courses, the tribunal cannot be satisfied that he intends to comply with the conditions of a visa, were one to be issued to him for his proposed enrolment of a Bachelor of Business and Accounting. 29 The upshot is that none of the proposed grounds of appeal, in my view, enjoys a sufficient prospect of success to warrant a grant of leave to appeal. On examination, it appears to me that the Tribunal's reasons for concluding that it was not satisfied that Mr Chopra was a genuine student were reasonably open. That accords with the conclusion reached by the learned primary judge. 30 The proposed grounds of appeal do not provide any arguable basis for a conclusion that an appeal should be allowed to go forward. That being so, whilst, as indicated, I do grant Mr Chopra an extension of time, for the reasons just given I will refuse to grant leave to appeal. 31 I should indicate that in the course of the hearing Mr Chopra sought an adjournment of the hearing for the purpose of obtaining legal advice. I refused that particular application upon considering the opposition by the Minister to the adjournment application. I refused it because of, in an absolute sense, the passing of more than two and a half years since the filing of the application. In a more particular sense, that the hearing would occur today was notified to each of the parties via the registry in late March; so some two months have elapsed. I have no evidence before me from Mr Chopra as to efforts which he had made, either over the two and a half years or, for that matter, the two months, to obtain legal advice. 32 There comes a time when a case just must be heard. To have adjourned the case would have seen an allocation of judicial resources on another hearing date to this case at the expense of other cases. 33 Mr Chopra made submissions to me which highlighted particular academic progress which he had made and an end to which that progress was directed, namely, enhancing skills, both academically and in command of oral and written English, to the end of progressing to bachelor's degree studies. Indeed, he has made some progress in that regard. Another reason for undertaking non-degree-level earlier study was that some credits were thereby obtained towards degree-level studies. 34 All of that provides an understandable basis upon which one might make a submission on the merits, but the time for that was before the Tribunal, and, indeed such a submission looks to have been made; it is just that it was not the only conclusion open on the material before the Tribunal. 35 The Tribunal's reasons provide a logical and rational basis for the absence of satisfaction recorded by the Tribunal. It is not the role of the judiciary to revisit, in this type of case, value judgments on the merits. It follows, therefore, that the application for leave to appeal must be dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.

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