SINGH v Minister for Immigration
[2016] FCCA 28
•27 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 28 |
| Catchwords: MIGRATION – Show cause hearing – Tribunal dismissing claim for student visa as applicant not enrolled in, or having current offer of enrolment in, a course of study – Tribunal clearly correct – applicant failing to raise an arguable case for relief – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001, r.44.12 Migration Act 1958 Migration Regulations 1994 |
| Applicant: | SHERJIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2260 of 2014 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 10 November 2015 |
| Date of Last Submission: | 10 November 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 27 January 2016 |
REPRESENTATION
| The Applicant: | In person (assisted by a Punjabi interpreter) |
| Counsel for the First Respondent: | Ms Tan |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The Application filed 11 November 2014 is dismissed.
The Applicant pay the First Respondent’s costs.
The name of the Second Respondent be changed to ‘Administrative Appeals Tribunal’.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2260 of 2014
| SHERJIT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an Application filed on 11 November 2014 the applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 31 October 2014. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) visa.
The originating Application, which understandably, is made only by the applicant and does not include his deceased wife, who was a party to the decision before the Tribunal, lists the following grounds of application:
“I have provided all document that all my family passed away in an accident, so I do not want to go back as it puts me in depression. I requested to get student for myself as I depend on my wife but she died in a car accident. But they are not giving me a student visa. Why can’t I apply for student visa or work visa. I am a reliable person and hardworking. I been in Australia from 6 ½ years. I have no criminal records I can provide you police clearance if required.” (sic)
The Affidavit filed contemporaneously with the Application relevantly merely asserts all the information given is correct and appends a copy of the Tribunal’s decision. On 18 February 2015 Registrar Allaway made orders by consent which, relevantly, set the matter down for a ‘show cause’ hearing before me today. Both parties were directed to provide written submissions, but only the first respondent has done so.
The first respondent’s written submissions are, in effect, all the Court has before it. The applicant appeared with the assistance of an interpreter and I understood him to say that all of his family were deceased and he has no one in Australia and he requested a student visa at the Tribunal and that was his only request. And, so far as I could understand the matter, those were in effect the only submissions that he made. Accordingly, the first respondent’s written submissions, upon which counsel was content to rely, plus the materials in the Court Book (“CB”), are what the Court has for consideration. What follows is a paraphrase of the written submissions.
The first respondent’s submissions assert correctly enough that the purport of r.44.12 of this Court’s rules (“Federal Circuit Court Rules 2001”) provide that the court may dismiss the application if not satisfied that the applicant has raised an arguable case for the relief claimed. The written submissions go on to traverse the legislative scheme and the Regulations applicable to the classes of visa for which the applicant applied.
The written submissions note that the applicant is a 25-year-old citizen of India whose spouse applied to the Department of Immigration and Citizenship for a visa on 12 March 2011. The applicant was named as a dependent of the spouse. In due course, this led to a request by a delegate of the first respondent for a response from the applicant’s spouse on adverse information set out at CB41-44 and on 6 June 2011 the delegate refused to grant the applicant’s spouse the visa on the basis that she did not meet the requirements of the Migration Regulations 1994 (“the Regulations”).
That decision was the subject of merits review before the Tribunal and the applicant was self-represented at the hearing. On 13 October 2012 the applicant’s spouse died, as is apparent from CB97, 136 and 255. On 21 May 2013 the applicant appeared before the Tribunal and appeared again at a resumed hearing on 3 July 2013 and again on
23 September 2013. On 2 October 2013 the Tribunal affirmed the delegate’s decision to refuse the visa application. On 21 October 2013 the applicant applied for judicial review of the Tribunal’s decision and on 10 June 2014 Judge Whelan made orders to set aside the decision of the Tribunal made on 2 October 2013. The matter was remitted to the Tribunal for reconsideration.
On 10 July 2014 the Tribunal invited the applicant to appear before it on 15 August 2014 and on 14 August 2014 the applicant requested an adjournment of the hearing providing a medical certificate. On
15 August 2014 the Tribunal effectively gave the applicant until
21 August 2014 to appear and he did so on that date. On 31 October 2014 the Tribunal affirmed the delegate’s decision not to grant the applicant the visa. The Tribunal found that the applicant had not provided the Tribunal with any evidence he was enrolled in, or had an offer of enrolment in, an applicable course of studies for the purposes of the Regulations and that there was no evidence the applicant satisfied the criteria for either a subclass 576 or 580 visa.
At paragraph 29 the first respondent’s submissions go on to assert:
“Due to the unparticularised nature of the applicant’s grounds of review, it is difficult for the Minister to respond to the Application in any detailed way. Nonetheless, a fair reading of the Tribunal’s decision does not suggest that it is affected by jurisdictional error.”
The submissions go on to deal with the Tribunal’s decision and as a model litigant deal with the questions of procedural fairness, natural justice and whether or not the Tribunal made any error of law. The submissions detail why it is put that those matters were not infringed in the way in which the Tribunal proceeded.
This brings the Court, then, to the decision of the Tribunal itself which is at CB 274-276. The Tribunal noted that the applicant applied for the visa on 12 March 2011 as a dependent of the proposed student, his wife. The delegate refused to grant the visa on the basis that the requisite financial capacity had not been established in accordance with the Regulations. The primary applicant, the applicant’s wife, died in India on 13 October 2012. The Tribunal noted the prior history of the matter which had proceeded to Judge Whelan and then been remitted to the Tribunal.
The Tribunal noted that when the applicant appeared before the Tribunal on 21 August 2014 with the assistance of an interpreter he lodged a letter of offer dated 16 July 2013 in respect a Certificate III in ESL course which was to commence on 22 July 2013 and end on
3 January 2014 to be followed by a Certificate IV in ESL course scheduled to commence on 20 January 2014 and to end on 4 July 2014. As the Tribunal correctly noted at paragraph 10, (see CB 275), the issue in the case was whether the applicant was currently enrolled or subject to an offer of enrolment in a registered course of education.
The Tribunal dealt at paragraph 11 with certain exemptions to that requirement, but concluded, it would seem to me correctly on the materials, that these were not relevant. At paragraph 12, the Tribunal noted:
“At hearing the applicant spoke briefly about the history of the application and the previous tribunal hearing. The applicant said that he was not currently enrolled although he had taken admission but was later told he could not pursue his studies. In respect of the letter of offer from Education Access Australia, dated 16 July 2013 in respect of the Certificate III in ESL course and Certificate IV in ESL course, the applicant said that he had not commenced the courses as he had been told before classes started that he could not do them. He said that he did not have any certificate but was requesting the right to study in Australia as he had nothing left for him in India; his wife and own parents had died in the same car accident.”
The Tribunal went on to find, wholly unsurprisingly in the circumstances, that there was no evidence that the applicant was then enrolled in or had a current offer of an enrolment in any applicable course or study and, therefore, did not meet the requirements of cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231. The Tribunal noted that although the applicant had been invited to provide evidence of current enrolment, the fact was that he had not commenced the course with Education Access Australia and, in any event, the scheduled end date of both courses had passed by the date of hearing.
As the Tribunal found at paragraph 13, as at the hearing date and the date of decision, the applicant had not provided evidence of current enrolment or evidence that he was subject to an offer of enrolment. The Tribunal went on to exclude the remaining subclasses of Class TU and noted that the applicant was neither supported by the relevant Minister as required by cl.576.229, and had not made an application on the basis of being a student guardian. Accordingly, the Tribunal dismissed the application.
It is readily apparent that the applicant’s personal circumstances are such as to elicit very considerable sympathy. He has lost both his parents and his wife in one dreadful misfortune. However, while the applicant may well have been in Australia for as long as he says and may well be of good character and be a reliable person, that is not the matter before the Court. The question is whether the Tribunal fell into jurisdictional error or otherwise acted in some fashion as to ground a relief that the applicant seeks.
The first respondent’s written submissions are, in my view, quite obviously correct. The way in which the Tribunal conducted the hearings – giving the applicant ample opportunity to attend and make representations – was clearly fair and not such as to give rise to any form of error. Similarly, the test that the Tribunal propounded was that required by the Migration Act 1958 and Regulations taken cumulatively. The criterion that the Tribunal identified as being applicable is, in my view, the correct one and no error is shown in the way in which the Tribunal approached its applicability to the applicant.
Most unfortunately for him, the applicant’s materials do not suggest that he has any chance of a success in this proceeding. To put the matter in terms of r.44.12, the applicant has failed to raise an arguable case for the relief claimed. It follows that the application will be dismissed with costs and I will order accordingly.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 27 January 2016
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