SINGH v Minister for Immigration
[2020] FCCA 1136
•12 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1136 |
| Catchwords: MIGRATION – Student visa – where the applicant returned to India soon after his arrival in Australia and again a few months later for family reasons – where the applicant had not been enrolled in a course of study – where the applicant had thereby breached a condition of the visa – where the applicant sought an extension of time – where inadequate explanation for delay and little prospect of success – where the applicant was afforded opportunities to file an amended application, evidence and submissions – where in the event, the applicant was found to have departed Australia - where the applicant appeared before this hearing from offshore (India) – where it would be futile to grant application. |
| Legislation: Migration Act 1958 (Cth), ss.65, 116, 477 Migration Regulations 1994 (Cth),.Sch.8, 6202 |
| Cases cited: DMI16 v Minister for Immigration and Border Protection [2017] FCA 1179 |
| Applicant: | RANJODH SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2623 of 2016 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 7 May 2020 |
| Date of Last Submission: | 7 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 12 May 2020 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor advocate for the First Respondent: | Mr. Coenraad van der Westhuizen |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
By consent, pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application dated 5 December 2016 be dismissed.
The applicant pay the costs of the first respondent as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2623 of 2016
| RANJODH SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 5 December 2016, the applicant seeks an extension of time within which to seek judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 26 October 2016 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Subclass 573 Higher Education Sector (Class TU) visa pursuant to s 65 of the Migration Act 1958 (Act).
I have concluded that the application should be dismissed. In summary, the applicant’s enrolment in his course of study having ceased, it was open to the Tribunal to conclude that the grounds for cancellation of the visa outweighed the grounds in favour of not doing so. Further, as the applicant is now overseas it would be futile to allow the application. As the Solicitor Advocate for the Minister submitted, by reason that the applicant is now overseas and having regard to the circumstances are there is no present impediment to the applicant making a further application, subject to any other conditions which may be applicable.
Background
The background to the application is common ground.
The applicant, a male Indian national, aged 29 years, first came to Australia on 2 March 2014 holding a Student visa. Immediately after the applicant’s arrival in Australia he had to return to his country to attend his sister’s wedding. On 13 June 2015, his sister was murdered by her husband and mother-in-law. The applicant claimed that this was a result of a dowry dispute. He returned to India for his sister’s funeral.
A post-mortem report records a finding that on 13 June 2015 the deceased had committed suicide by hanging at her residence inside a locked bathroom. The opinion expressed in the report records “The cause of death is due to asphyxia caused by ligature hanging using clothes like material. Manner of death is suicide.” For present purposes, it may be assumed that the applicant contests that finding.
Quite understandably, the applicant claimed stress and anxiety as a result of the family tragedy and that this impacted his ability to resume study.
However, the applicant had not been enrolled in a registered course of study since 22 January 2015. PRISMS records confirm that the applicant’s enrolments in a Diploma in Bachelor of Business respectively were either marked “inactive” or “cancelled” on four occasions in the period February 2014 – April 2016 respectively. Those records are to be understood, at least in part, by reason that on 15 December 2014, the institution at which the applicant had enrolled to undertake a Bachelor of Business (Management) advised him that the course was no longer on offer. Other courses were offered to him.
On 15 April 2016, the applicant was notified it appeared a ground for cancellation of his visa existed; namely, that the applicant had not been enrolled in a course of study since 22 January 2015. The applicant responded to the notice and it is clear that the matters which he addressed were considered by the delegate. However, on 28 April 2016, a decision was made by a delegate to cancel the visa. A copy of the delegate’s decisional record was provided to the applicant.
On 6 May 2016, the applicant sought review of the decision to cancel his visa. Shortly afterward, the applicant notified the Tribunal that he had terminated the retainer of his migration agent and sought that all future communications be directed to him personally. Thereafter, on 6 October 2016, the applicant was invited to attend a hearing on 26 October 2016.
On 27 October 2016, the Tribunal affirmed the decision to cancel the Class TU visa and provided reasons for doing so (Reasons).
Tribunal’s decision
Having set out the history of the application and that the subject matter of the review was the delegate’s decision to cancel the visa, the Tribunal identified that the issue was whether the applicant had breached condition 8202 of Sch 8 to the Migration Regulations 1994 (regulations).
The Tribunal recognised that if the applicant had breached that condition, the visa may be cancelled under s 116(1) of the Act.
While the Tribunal gave weight to the applicant's personal circumstances but considered the period 15 months of no enrolment in a course of study outweighed those circumstances. Having discussed those matters with the applicant in some detail, the Tribunal found the applicant had not complied with condition 8202(2): [6]-[13]. A copy of the applicable regulations were attached to the Reasons.
The Tribunal considered whether or not the discretion to cancel the visa should be exercised. The Tribunal examined the relevant circumstances in some detail, concluding that the considerations in favour of cancellation outweighed those in favour of not doing so: [14]-[30].
Procedural history
On 5 December 2016, the applicant lodged his application for judicial review together with an affidavit in which he deposed that the Tribunal had taken account of irrelevant considerations and failed to take account of relevant considerations, attaching a copy of the Reasons but adducing no further evidence on the application for review.
By his originating application, the applicant sought an extension of time, doing so on the stated basis that the application (being five days out of time) had been completed and taken by him to the court where he was informed that it would not be accepted and he was told “that it had to be redrafted all over again.” By his application, it was further stated that, having obtained some assistance to redraft the application he had returned court at 4:35pm to discover the registry was closed.
By a response filed on 16 December 2016, the Minister opposed the grant of relief including an extension of time, on the substantive bases that no adequate explanation for the delay had been provided and because the application did not disclose a ground of review which had reasonable prospects of success.
On 7 June 2016, orders were made by consent regulating the preparation of the matter for final hearing including that the applicant be afforded opportunities to file any amended application, further evidence and submissions. However, those opportunities were not taken.
In the result, the Minister’s submissions were responsive to the matters set out in the application.
By an affidavit made on 24 April 2020, the solicitor advocate for the Minister made an affidavit deposing that the applicant had departed Australia and that he no longer held any valid visa. Upon that basis, the deponent stated a belief that the applicant, who was no longer in Australia, did not hold a Visa which would permit re-entry to Australia.
Extension of time – applicable principles
By s 477(1), a 35-day time limit is fixed for the making of an application for judicial review of a migration decision. The court may extend the time for filing an application: s 477(2). The power to extend time is subject to two conditions: (1) an application has been made in writing for such an extension, in which the applicant specifies why it is necessary in the interests of administration of justice for an extension to be granted; (2) the court is satisfied that it is necessary in the interests of administration of justice to do so.
The discretion to extend time for the commencement of proceedings is a deliberately broad one. It is well settled that in the determination of whether an extension of time should be granted, the court should consider a number of factors including whether there is an acceptable explanation for the delay, the length of the delay, any prejudice to the respondent if the extension was granted, the merits of the substantive application and any other factor considered to be relevant.
While the discretion is broad, the court should not grant an application for an extension of time unless it is proper to do so. That this is so brings to attention that legislative time limits are not to be ignored. Equally, the discretion conferred recognises that there will be cases in which, although no prejudice may be sustained by the Minister, the consequences for an applicant in losing a right of review are real. Counsel for the applicant properly emphasised that, although an alternative route of review might be available, the refusal of an application for an extension of time foreclosed a right of appeal.
Delay an explanation for delay
Contrary to the submissions made on behalf of the Minister I consider that the applicant’s explanation for such a brief delay in filing his application for judicial review has been adequately explained.
Prejudice
No prejudice was asserted on behalf of the Minister.
Merits of proposed grounds
Consideration of whether it is necessary in the interests of the administration of justice to grant the extension thus requires the evaluation of the merits of the proposed ground[s] of review.
As the authorities confirm, if an extension of time is to be granted, the court must be satisfied that it is in the interests of justice to do so.[1]
[1]SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82, [27] (Collier, Wigney and Gleeson JJ); MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110, [38] (Tracey, Perry and Charlesworth JJ).
Whether an extension of time should be granted will depend upon the particular circumstances of each case.[2]
[2]Mentink v Minister for Home Affairs [2013] FCAFC 113, [32]-[38] (Edmunds, Griffiths, Pagone JJ).
In MZABP v Minister for Immigration and Border Protection, the Full Court endorsed statements by Mortimer J in the decision under appeal, that the approach to be taken in a preliminary examination of the merits of the substantive application necessarily involved recognition that the grounds had not been as fully considered, developed and argued as if on a final hearing and, accordingly, that it was not a function appropriate to the exercise of discretion to grant an extension of time to undertake a fuller consideration of the merits of the substantive claim. Mortimer J’s reasoning is instructive:[3]
. . . it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see . . . Jackamarra v Krakouer[4]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” . . .
The Full Court’s endorsement of her Honour’s use of the criterion ‘reasonable prospects of success’ is apparent. It is akin to that employed in an application for summary judgment where the court is authorised to dismiss a claim or defence where it is considered to have no reasonable prospects of success.[5] It is a criterion which is long accepted as posing a lower threshold than that which is applied on the final determination of the issues in a proceeding. If the other requirements for an extension of time are satisfied and the proposed grounds of review are shown to be reasonably or sufficiently arguable, the time within which to lodge an application for judicial review should be extended.
[3][2015] FCA 1391, [62]-[63].
[4](1998) 195 CLR 516, [7]-[9].
[5] CfSpencer v Commonwealth (2010) 241 CLR 118.
The trend of authority favours an approach to the determination of whether it is necessary in the interests of the administration of justice to grant an extension of time that the merits of the application should be evaluated at a reasonably impressionistic level such that the court is satisfied to a degree of confidence whether the grounds of review are arguable, reasonably arguable, sufficiently arguable or plainly hopeless. Further, in the consideration of whether the grounds of an application are sufficiently arguable, the court is not confined to a consideration of the proposed grounds of review but must also engage with the reasons of the decision-maker and consider whether the grounds are of any substance: see SZSZW v Minister for Immigration and Border Protection at first instance[6] and on appeal;[7] Kio v Minister for Home Affairs.[8] Those authorities also confirm that the discretion is deliberately broad.
[6][2017] FCA 1544, [14]-[17] (Perry J) citing MZABP; DMI16 v Minister for Immigration and Border Protection [2017] FCA 1179, [33]-[36] (Robertson J).
[7] [2018] FCAFC 82, [26]-[27].
[8] [2019] FCA 579, [4], [10].
The Minister opposed the grant of an extension on the substantive basis that, even at an impressionistic level, the grounds of review were not sufficiently or reasonably arguable. I consider them in turn.
The application for review contained two grounds of review.
Ground 1 reads:
The Tribunal took account of irrelevant considerations and failed to take account of relevant considerations.
Particulars
The Tribunal failed to have regard to relevant factors and took account of irrelevant factors when assessing whether there were grounds to cancel the applicant’s student visa.
Thus, the applicant contends that the Tribunal failed to have regard to relevant factors and took account of irrelevant factors when assessing whether there were grounds to cancel the applicant’s visa.
Regrettably, the proposed ground of review is, in effect, unparticularised in circumstances where the so-called ‘Particulars’ were repetitious of the ground of review. This difficulty is compounded by the circumstance the applicant has not taken the opportunities to file any amended application, further evidence or submissions. Objectively, the applicant has had in excess of three years in which to do so. Ground 1 is liable to be dismissed for want of particulars alone.
I accept the submission made on behalf of the Minister that this ground goes no higher than to seek impermissible merits review.[9]
[9]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh & Gummow JJ).
Ground 2 reads:
The Tribunal failed to properly exercise its discretion as to whether the visas should be cancelled or not because it failed to properly consider all the relevant criteria relevant to the exercise of that discretion.
Again, the applicant contends that in exercising its discretion the Tribunal failed properly to consider and/or failed to give sufficient weight to the passing of the applicant’s sister on 13 June 2015.
Contrary to the applicant’s second ground review, these matters were plainly considered by the Tribunal: [17]-[19], [24], [26]-[27]. It is settled that the weight to be attributed to the applicant’s evidence was a matter for the Tribunal, and the applicant's disagreement with the weight placed on it by the Tribunal invites impermissible merits review.
Conclusion
The determination of whether it is necessary in the interests of the administration of justice to grant an extension of time requires that the length of delay, explanation for delay, prejudice, the relative merits of the proposed grounds and the other matters that I have considered above be considered both individually and cumulatively. I consider that the Tribunal undertook a proper examination of the matters which had been placed before it. Adopting the lower threshold that is to be applied upon an application for an extension of time, I do not accept that the applicant’s proposed grounds of review have reasonable prospects of success. Accordingly, I am not satisfied that it is necessary in the interests of the administration of justice to grant the application for an extension of time.
I also accept the submissions made on behalf of the Minister that it would be futile to have granted an extension where the applicant has now left Australia, has no visa which would permit him to travel to or remain in Australia and, further, subject to conditions applying to any visa applicant, there is no bar to the making of a further application.[10]
[10] Act, s 48.
For the foregoing reasons, the application should be refused.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 12 May 2020
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Breach
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Standing
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