SINGH v Minister for Immigration

[2015] FCCA 1354

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1354

Catchwords:
MIGRATION – Migration Review Tribunal – Student (Temporary) (class TU) visa – no jurisdictional error – application dismissed.

Legislation: 
Constitution, s.75(v)
Migration Act 1958, s.476

Applicant: HARSIMRAT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 314 of 2014

Judgment of: Judge Street

Hearing date: 19 May 2015

Date of Last Submission: 19 May 2015

Delivered at: Adelaide

Delivered on: 19 May 2015

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Ms V. Greenslade

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application for extension of time is dismissed pursuant to s.477 of the Migration Act 1958.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ADELAIDE

ADG 314 of 2014

HARSIMRAT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 3 June 2014 affirming the decision of the delegate not to grant the applicant a Student (Temporary) (class TU) visa. The application is one in respect of which an extension of time is required under s.477. There is no adequate explanation as to why an extension of time should be granted, and on that ground alone I would reject the application for an extension of time. It is further apparent that the application is hopeless. The grounds in the application are as follows:

   1. I want to start my further studie.

   2. I done mistake in lots of stress.

   3. I want another chance.

   I Actually no one assist me what to do. I was in stress so I was late.

   I was street in just because my visa was cancel. So

   So, Just give a one more chance it’s request to court.

   Thankyou.

2. The application fails to identify any jurisdictional error.  The applicant asked the Court for more time and sought an adjournment, which the Court declined to grant on the ground that the proceedings are patently hopeless and doomed to failure and that an adjournment will only unnecessarily add to the costs to the parties and utilise limited Court time. 

3. The applicant applied for the Student (Temporary) (class TU) visa on 29 March 2013, which the delegate refused to grant on 24 May 2013.  In the delegate’s decision in refusing to grant the application, the delegate noted that the delegate was not satisfied the applicant had been enrolled in or had been studying a registered course since ceasing the last course on 26 May 2012 and allegedly commencing a new course on 22 April 2013.  The delegate identified the requirements under cl.527.223(2)(b)(i).  Relevantly:

   The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to

   i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted.

4. The delegate found that that requirement had not been met and refused the application.  It was in those circumstances that that applicant applied for review of the delegate’s decision and appeared before the Tribunal on 2 June to give evidence and present arguments and was assisted by an interpreter.  At the hearing the Tribunal noted after what it said was extensive and meandering complaints or explanations:

   After some more questioning the applicant did concede that he had done no study since 26 May 2012. 

5. It was in those circumstances that the Tribunal found that the applicant’s explanations were not a sufficient reason for him not studying since May 2012.  The Tribunal identifies that the lengthy period in this case absent sufficient explanation led the Tribunal to conclude that the applicant is not a genuine applicant for entry and stay as a student, and the Tribunal found that the applicant did not meet cl.572.223(2)(b).  Having found that the applicant didn’t meet an essential requirement under clause 572.223 the Tribunal affirmed the decision under review.  There is no identification of any jurisdictional error to invoke this Court’s jurisdiction in the application.  The application was patently hopeless.  This Court is not sitting as a Court of appeal. 

6. The application filed was to invoke this Court’s jurisdiction under s.75(v) of the Constitution for a Constitutional Writ, and required identification of a jurisdictional error by the Tribunal. I accept the first respondent’s submissions that the mere allegations of wanting an extension of time failed to disclose any jurisdictional error and that the application must fail. The application for an extension of time under s.477 is dismissed. The application is dismissed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  21 May 2015