Singh v Minister for Immigration

[2015] FCCA 1163

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1163

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – applicant failing to appear at Tribunal hearing – Tribunal proceeding to make a decision without a further hearing opportunity – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Applicant: BALJINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 243 of 2014

Judgment of: Judge Driver

Hearing date: 4 May 2015

Date of Last Submission: 4 May 2015

Delivered at: Adelaide

Delivered on: 4 May 2015

REPRESENTATION

Counsel for the Applicant: Self Represented

Counsel for the Respondents: Ms Stokes

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application filed 2 July 2014 be dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant do forthwith pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 243 of 2014

BALJINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-tempore reasons settled from transcript)

1. This is an application to review a decision of the Migration Review Tribunal.  The decision was made on 13 June 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant Mr Singh a temporary student visa. 

2. The background facts relating to this matter are conveniently set out in the Minister’s outline of legal submissions filed on 27 April this year.  The Applicant is a citizen of India. On 19 September 2012, he lodged an application for the visa.[1]

   [1]     Court book (CB) 6-12.

3. On 19 October 2012, the Delegate refused the application on the ground that the Applicant did not satisfy the competent English requirement found in cl 572.223(2)(a) of the Migration Regulations 1994 (Cth) (the Regulations).[2]

   [2]     CB 21-24.

4. On 29 October 2012, the Applicant applied for review of the Delegate's decision by the Tribunal.[3]

   [3]     CB 25-36.

5. On 24 April 2014, the Tribunal invited the Applicant to appear before it to give evidence and present arguments relating to the issues arising in his case.[4] Relevantly, the invitation also requested that the Applicant provide evidence that he was currently enrolled in a course, or had an offer of enrolment in a registered course. The hearing was scheduled to take place on 28 May 2014.

   [4]     CB 27.

6. On 28 May 2014, the Applicant did not attend the scheduled hearing date.[5] The Tribunal decided to proceed on the review in the Applicant’s absence. On 13 June 2014, it affirmed the Delegate’s decision.[6]

   [5]     CB 40.

   [6]     CB 42-45.

7. On 2 July 2014, the Applicant applied for judicial review of the Tribunal's decision in this Court.[7]

   [7]     CB 1-5.

The tribunal's decision

1. The issue before the delegate was whether Mr Singh met the criterion in cl.573.223. However, the issue before the Tribunal is whether, at the time of decision, Mr Singh was enrolled in, or was the subject of a current offer of enrolment in, a course of study that met the requirements of the Regulations.

2. With limited exceptions not relevant to this case, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or the subject of a current offer of enrolment in, a course of study that is a principal course, and specified under r.1.40A for the subclass at the time of application.

3. With the invitation to the Tribunal hearing, Mr Singh was invited to provide evidence of this current enrolment.

4. Mr Singh had applied for a Student (Temporary) (Class TU) visa for the purpose of study in Australia. There was no evidence before the Tribunal that Mr Singh was currently enrolled in or the subject of a current enrolment in any course of study. The Tribunal was therefore not satisfied that Mr Singh was enrolled in or the subject of a current enrolment in a course of study that was a principal course and of a type specified for any of subclasses 570, 571, 572, 573, 574 or 575. On that basis, the Tribunal found that Mr Singh did not satisfy cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2 to the Regulations.

5. The Tribunal concluded by affirming the decision to refuse to grant the visa.

6. These proceedings began with a show cause application filed on 2 July 2014.  Mr Singh continues to rely upon that application.  There is one ground in that application:

   “I never got an opportunity to present my case to MRT and therefor injustice was done to me”. (error in original)

7. The application is supported by a short affidavit, which I received.  I also have before me as evidence the court book filed on 18 August 2014.  I also received as an exhibit, exhibit A1, a bundle of documents tendered in Court today by Mr Singh.  I also received an affidavit by Katerina Malekin made on 23 February 2015. 

8. Mr Singh is concerned that he did not have an opportunity to present his case to the Tribunal at a hearing.  The court book discloses at page 37 that a hearing invitation to him was prepared and dated 24 April 2014.  However, it is clear from page 40 of the court book that Mr Singh did not attend the hearing.

9. A Tribunal officer has noted on the Migration Review Tribunal hearing record that two attempts were made to contact Mr Singh by telephone, both of which were unsuccessful.  The Tribunal exercised its discretion to proceed to make a decision without giving Mr Singh a further opportunity to attend.  The question is whether the Tribunal was entitled to do so, and whether its exercise of discretion miscarried.

10. I have no reason to doubt Mr Singh’s claim that he did not receive the hearing invitation.  However, the court book discloses that the hearing invitation was addressed to him at an address nominated to him in his review application.[8] The affidavit of Ms Malekin establishes that the hearing invitation was dispatched in accordance with the requirements of the Migration Act and Regulations.

    [8] See court book page 33

11. It follows that Mr Singh is taken to have received the hearing invitation, even though he did not in fact receive it.  Adequate notice was given to Mr Singh of the hearing to which he was invited. 

12. Although it was not required to do so, the Tribunal also attempted to contact him by telephone when he failed to appear.  Further, the Tribunal delayed several weeks after the time of the hearing before publishing its decision.  There was, it appears, no further contact from Mr Singh. 

13. It follows, in my opinion, that the Tribunal’s discretion to proceed in Mr Singh’s absence was enlivened.  Further, there is nothing to indicate that the Tribunal’s exercise of discretion miscarried. 

14. If Mr Singh had attended the Tribunal hearing, he may have been able to satisfy the Tribunal that he was at that time enrolled in an approved course of study.  Among the documents comprised in exhibit A1 is a certificate of completion of a Diploma of Management from Jabin Hopkins Institute of Technology.  The certificate was issued on 23 October 2014.  I am prepared to accept the probability that Mr Singh was enrolled in that course at the time of the Tribunal decision.  The Tribunal, however, was correct to note that Mr Singh had not provided to it any evidence of that enrolment.  There is no evidence that Mr Singh is currently enrolled in an approved course of study.  Mr Singh told me from the bar table that he has now applied for a class 457 visa. 

15. The documents comprised in exhibit A1 also include an IELTS test result dated 2 October 2014.  Mr Singh’s inability to provide evidence of a passing score prior to his visa application was an issue before the delegate.  On the basis of the currently available material, it appears that that problem remains.

16. I otherwise agree with the Minister’s written submissions.

17. The Migration Act requires that the Tribunal must invite the Applicant to appear, with proper notice: ss.360 and 360A of the Act. These sections were complied with as Mr Singh was sent an invitation to appear on 24 April 2014 pursuant to s.360, which provided notice of the date, time and place of the hearing pursuant to s.360A(1).

18. Pursuant to s.360A(5) the letter included a statement to the effect of s.362B, namely:

    “If you do not participate in the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.”

19. The letter also invited Mr Singh to provide, among other things, evidence that he was enrolled in a course, or had an offer of enrolment in a course of study. He was invited to provide this information at least 7 days before the hearing.

20. Consistent with the method specified in s.379A(4)(b) and (c), the invitation was sent by prepaid post to the address for correspondence provided in the application to the Tribunal.[9]

    [9]     See affidavit of Ms K Malekin affirmed 23 February 2015 and filed 25 February 2015.

21. The invitation also satisfies the requirement of s.360A(4), that Mr Singh be given a required period of notice for the hearing. By virtue of s.379C(4) Mr Singh is taken[10] to have received the letter 7 working days after it was dated - he is taken to have received it on 5 May 2014. As the required period of notice prescribed by r.4.21(4)(b) of the Regulations is 14 working days thereafter, the hearing date of 28 May 2014 was longer than the prescribed period and the required period of notice was therefore given.

    [10]    See also s.5(23) of the Act.

22. When making its decision, the Tribunal then chose not to exercise its discretion under s.362B(2) to reschedule the Applicant's appearance or delay its decision. Mr Singh apparently did not notify the Tribunal that he was unable to attend the hearing. He simply did not attend and did not provide the evidence requested by the Tribunal. In the circumstances, it was open for the Tribunal to make a decision on the review without taking any further action to allow or enable Mr Singh to appear before it: s.362(1). There was nothing unreasonable about that exercise of power in the circumstances.

23. When Mr Singh failed to appear at the scheduled hearing, the Tribunal was entitled to proceed to make a decision on the evidence before it. In the absence of any evidence that he was enrolled in a course of study or had an offer of enrolment in a course of study, it was plainly open to and necessary for the Tribunal to affirm the decision not to grant the visa.[11]

    [11]    See s.65(1)(a)(ii) and (b) of the Act.

24. Mr Singh has failed to demonstrate that the Tribunal decision is affected by any jurisdictional error.  It follows that the Tribunal decision is a privative clause decision, and the application must be dismissed.  I so order.

25. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied at the time of the application being filed.  Mr Singh doubted his capacity to pay, but as has been repeatedly stated, impecuniosity is not a reason for the Court to refrain from making a costs order. 

26. Mr Singh is also concerned about his immigration status in the light of the Court decision.  I have provided him with certain information and invited him to take up further questions with the Minister’s Department.  I will order that Mr Singh pay the Minister’s costs, fixed in the sum of $6,646.00.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 7 May 2015