Singh v Minister for Home Affairs
[2019] FCCA 2718
•29 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
SINGH v MINISTER FOR HOME AFFAIRS & ANOR
[2019] FCCA 2718
Catchwords:
MIGRATION – Interlocutory application – reinstatement of judicial review application – original application dismissed by a registrar pursuant to rule 13.03C(1)(c) of the Federal Court Rules 2001 (Cth) – no prospects of success – application dismissed.
Legislation:
Federal Circuit Court Rules 2001 (Cth), r 13.03C(1)(c).
Applicant:
SARABJEET SINGH
First Respondent:
MINISTER FOR HOME AFFAIRS
Second Respondent:
ADMINISTRATIVE APPEALS TRIBUNAL
File Number:
MLG 1188 of 2018
Judgment of:
Judge Riethmuller
Hearing date:
29 July 2019
Date of Last Submission:
29 July 2019
Delivered at:
Melbourne
Delivered on:
29 July 2019
REPRESENTATION
The Applicant appeared in person.
Solicitors for the Respondents:
Ms McInnes
ORDERS
(1) The Application be dismissed.
(2) The Applicant pay the First Respondent’s costs fixed in the sum of $500.00.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Melbourne
MLG 1188 of 2018
Sarabjeet Singh
Applicant
And
Minister For Home Affairs
First Respondent
Administrative Appeals Tribunal
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore)
1. The application is an interlocutory application for reinstatement of a judicial review application filed on 3 May 2018. The original application was dismissed by a Registrar pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) on 12 June 2019, when the applicant failed to appear on the first court date. The applicant had notice of that court date in writing, not only from filing his application (although he says that it was filed by another person on his behalf), but also by letter from the solicitors for the Minister (see Exhibit 1).
2. The applicant says that he was unaware of the court outcome until he received notice in relation to the costs order made by the Registrar and that he had been living in Sydney and was unaware that his primary application was filed in Melbourne. There seems to be some considerable confusion around the filing of the application and the location at which the application would be returnable.
3. This is a factor that needs to be taken into account on applications such as this, however, in the particular factual circumstances of this case it seems to me that the applicant has shown sufficient evidence to establish a reasonable explanation for his failure to appear on the first Court date, at least in a migration case.
4. It is also important to consider whether or not his application has any prospects of success before setting aside the dismissal order.
5. The application concerns a decision of the Administrative Appeals Tribunal (‘AAT’) affirming a decision of a delegate refusing to grant the applicant a student visa (subclass 500). In the hearing before the delegate, the delegate concluded that the applicant was not a genuine student and therefore, did not meet the relevant criteria for the visa. By the time that the applicant appeared before the AAT he no longer held an enrolment to study in Australia and therefore no longer met subclause 500.211(A) of the relevant categories of visa conditions.
6. The applicant had arrived in Australia in 2013 to study a Bachelor of Information and Technology, although had not in fact pursued those studies, but pursued much lower-level studies. The AAT outlined the applicant’s claims at paragraph 11 of their decision, saying:
11. The applicant confirmed he had intended to study a Bachelor’s degree when he came to Australia in 2013 but said his father’s business collapsed and there was no money available for his studies. Instead the applicant said he undertook full-time work. The applicant said he still wants to study and claimed he had commenced a course in Hospitality six months prior to the hearing. He declared he was enrolled and attending George Brown College on Tuesdays and Wednesdays and also works part-time. The Tribunal then put information to the applicant in accordance with s.359AA of the Migration Act that indicated his latest enrolment had been cancelled. The applicant was given a copy of the PRISM record that showed he was not enrolled and was asked to comment or respond. The applicant said the PRISM record was correct but claimed the cancellation related to his enrolment at Australian Academy of Management and Science. He said he was due to commence a Hospitality course next month and had been attending ‘trial’ classes. The applicant said he had not yet paid the course fees but expected to receive a COE in the next few weeks. The applicant had submitted in evidence a Statement of Attainment from George Brown College that demonstrates he has attained competency in one subject that forms part of an Advanced Diploma of Management.
7. As the applicant could not provide a current certificate for enrolment in an approved course, the AAT concluded that he did not meet the criteria (see paragraphs 13 and 14 of the decision) and, therefore, dismissed the application on that basis.
Grounds
8. The applicant’s grounds for judicial review are length and in the following terms:
1. My name is Sarabjeet Singh and I am born on the 20/07/1991.
2. I applied for a student visa to Australia on 30th August 2016 which was refused on 21st of February 2017 under s.65 of the Migration Act 1958 (the Act). The delegate refused my visa because he believed I did not satisfy requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
3. I applied for review of this decision to the Administrative Appeals Tribunal (AAT) and I explain to them the reasons behind me not meeting this requirement at the time. After the collapse of my father’s business everything has been very hard for me and my family. I have genuinely tried to study to the best of my abilities but I was not able to due to the impact of what had happened.
4. The AAT did not consider my reasons fairly and affirm the decision of immigration department on 5th April 2018.
5. I believe that both the AAT and Department of Home Affairs did not consider the facts, reasons and evidence I provided to support my application.
6. The unfair decision of the department and AAT will have a detrimental impact on mine and my family’s life and I would like Federal Circuit Court to consider this when looking at my case.
7. I think the AAT has made jurisdictional error in making decision for my application and I would like the Federal Circuit Court to review this.
8. I would like the court to find this jurisdictional error so that my application will be returned to the AAT for further reassessment.
9. After this I would like to be given fair chance to apply for another valid visa in Australia. I will follow all conditions and rules for this visa and return to my country when required.
10. I can provide the court any information they need to help me in this situation and I thank the court for taking time to consider my application.
9. The substantive grounds of the application are grounds 4 to 7. Ground 4 alleges that the AAT did not consider his reasons fairly and affirmed the decision of the Department of Home Affairs (‘the Department’). It is unclear what the applicant relies upon in this regard as the AAT clearly considered whether or not, at the very least, he met that part of the visa conditions relating to enrolment. The applicant makes submissions before me today that he did have a certificate of enrolment at the time of the decision and there is no evidence that he has since obtained one, and therefore, he was not able to satisfy the relevant visa criteria.
10. Ground 5 alleges that the AAT and the Department did not consider the facts, reasons and evidence the applicant provided. However, he was not able to identify what was not considered by the decision-maker.
11. Ground 6 alleges that the decision was unfair and will have a detrimental impact upon the applicant and his family’s life. Again, it is difficult to see how the decision was unfair when it is clear that the applicant did not meet the criteria for the visa.
12. The final ground, ground 7, simply alleges that the applicant believes the AAT made a jurisdictional error, however it does not articulate what error the AAT made.
13. In the hearing before me, the applicant was asked whether there were any other matters that he could point to and was unable to do so.
14. In the circumstances, it appears clear that the applicant has no prospects of succeeding in this application in that he did not meet the visa criteria at the time of the decision and still does not meet those visa criteria. The applicant was not able to show an arguable case that there was jurisdictional error on the part of the tribunal in refusing to direct that he be granted a visa.
Conclusion
15. In the circumstances, there is no purpose to be served in setting aside the Registrar’s order dismissing the application. I therefore dismiss the application in a case filed by the applicant on 10 July 2017.
[Further argument ensued]
Costs
16. In this matter the First Respondent seeks costs in the sum of $500.00. The solicitor for the First Respondent was only notified late that the application was before the Court. She attended at Court earlier today when the applicant was not present in the courtroom and then made herself available to come back later this morning so that the matter could still be heard today. Having regard to the materials and the amount of time that the solicitor has sent coming to Court on two occasions in the one day, I am persuaded that the sum of $500.00 is reasonable for costs. The applicant has been unsuccessful. Costs ought to follow the event.
17. I therefore make orders accordingly.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 25 September 2019
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