Singh v Minister for Immigration

[2015] FCCA 674

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 674

Catchwords:

MIGRATION – Review of Migration Review Tribunal decision – visa – student visa – no error of law established – application dismissed – costs.

Legislation: 

Migration Act 1958 (Cth), s.359AA

Applicant: SATINDER PAL SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 976 of 2014

Judgment of: Judge Vasta

Hearing date: 12 March 2015

Date of Last Submission: 12 March 2015

Delivered at: Brisbane

Delivered on: 12 March 2015

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application filed on 7 November 2014 be dismissed.

2. That the Applicant pay the First Respondent’s costs of and incidental the application fixed in the sum of $5,800.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 976 of 2014

SATINDER PAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 7 November 2014, the Applicant, Mr Singh, seeks a review of the decision of the Migration Review Tribunal that was made on 1 October 2014.  The Applicant, Mr Singh, has been in Australia since 2008.  He has undertaken a variety of courses at the subclass 572 level, despite the stated intention to pursue a higher level of education when he arrived in Australia.  His most recent enrolments have been cancelled for non-attendance.  His visa did run out and he applied for a further student visa on 14 March 2013.

2. The Delegate decided to refuse the grant of that visa on 6 August 2013.  The Delegate found that the Applicant had not satisfied the genuine temporary entrant criterion.  Mr Singh, the Applicant, applied for a review of that decision on 16 August 2013.  The Migration Review Tribunal could not hear that application for quite some time.  Almost a year later, the Tribunal wrote to the Applicant, on 14 August 2014, and asked him to provide evidence in support of the application, including his certificate of enrolment or an offer of enrolment.  He did not provide a response.

3. An officer of the Migration Review Tribunal telephoned the Applicant and he indicated that he had changed address without informing the Tribunal.  He still did not provide the information requested.  On 16 September 2014, the Migration Review Tribunal held a hearing of the matter and the Applicant, Mr Singh, did attend that hearing.  He told the Tribunal that he had taken a variety of courses because he thought it would assist him to obtain work by way of sponsorship in this country and it would enhance his employment opportunities if he had to return to his own country. 

4. According to the PRISMS records, the Tribunal commented to the Applicant, Mr Singh, that he did not appear to have an enrolment or a current offer of enrolment. This was put to him, pursuant to s.359AA of the Migration Act 1958 (Cth). The Applicant was asked whether he had any comment or whether he wanted more time. He asked for an adjournment so that he could contact his course provider and ascertain what had happened to his enrolment. It seems that the hearing was adjourned and when it resumed, the Applicant indicated that he was unable to clarify the issue and the Tribunal said to him that without enrolment or an offer of enrolment, he could not be granted the visa.

5. As I said, this occurred on 16 September 2014.  He was given another three days, until 19 September 2014, to provide evidence that he had enrolment or an offer of enrolment.  He said that he would provide the information but he did not.  Having not received anything on the 19 September 2014, the Tribunal decided to proceed with its consideration of the matter.  On 1 October 2014, the Tribunal found that it had had no evidence that the Applicant has an enrolment or a current offer of enrolment in any applicable course of study.  Therefore, the appropriate clauses of the Act had not been met and there was no evidence that the Applicant met the criteria for either a subclass 576 or a subclass 580 visa, the remaining subclasses.

6. For all of those reasons, the Tribunal affirmed the decision not to grant the Applicant a student visa.  As I say, the applicant then brought application to this Court for review.  The grounds were: 

   “1. I am a genuine applicant and will depart Australia after finishing my course of business at Skils(sic) Institute of Australia.  

   2. I am seeking for visa up to end date of my course, which is 30/8/2015.  I have job offer from India which is relevant to my course and will join my family and occupation in India once I finish my course at SIA.”

7. It goes without saying that such grounds are not grounds upon which the Court is invited to find that there was jurisdictional error.  As I have explained to Mr Singh, who has appeared today, that this Court’s job is not to engage in a rehearing of the matter.  It is not a case where this Court can simply be another vehicle by which Mr Singh seeks to obtain his visa.  This Court’s only function is to ascertain whether there was jurisdictional error in the manner in which the Migration Review Tribunal conducted the hearing or came to its decision. 

8. If such jurisdictional error is found, then the appropriate writs of certiorari and mandamus are issued and the matter is returned to the Migration Review Tribunal so that the application can be properly assessed.  If there is no jurisdictional error, then the matter is dismissed.  As I say, none of those grounds relied upon in any way points to a jurisdictional error.  Mr Singh, who appeared before me today, said that he was enrolled with the “Skils Institute of Australia” and that such institution was based at Slacks Creek.

9. In any event, one would have thought, as I said to Mr Singh in the hearing, that such an institute would have bent over backwards to provide some evidence of his enrolment or offer of enrolment.  But even if Mr Singh had that material before me today, it is not a matter of me looking at that material, it is a matter that should have been before the Migration Review Tribunal.  As it happens, he does not have that material and one can speculate as to whether such material does exist. If it did exist, one would have thought it would have been presented to the Migration Review Tribunal by 19 September 2014.  But, in any event, I do not making any finding on that particular matter.

10. What is also clear that the rules say that any such application such as the one that Mr Singh has made must be filed within 35 days of the decision of the Migration Review Tribunal.  That Tribunal gave its decision on 1 October 2014, therefore, the Applicant had until 5 November 2014 in which to lodge his application.  He did not do that; he was two days out of time.  He has not actually applied for an extension of time but I take it, by his presence here, that he would apply for an extension of time.

11. If there was any merit in the application, I would grant the extension of time simply because the two days lateness of the application has not prejudiced the Minister.  However, the fact of whether it has prejudiced the Minister is only one consideration to look into.  The overwhelming factor is whether there is any merit in the application at all.  As I say, I have gone through the reasoning of the Migration Review Tribunal.  There cannot be said to be any error whatsoever in their reasoning. 

12. They gave the Applicant ample opportunity  first by letter, then by phone call, then actually at the hearing and then post the hearing  to give them material that would satisfy them that he was either enrolled or had a genuine offer enrolment.  That has not occurred.  It still has not occurred.  There seems to be very little that this Court can do in a situation such as this.  Therefore, I find no jurisdictional error on the part of the Migration Review Tribunal and, accordingly, I dismiss the application.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  23 March 2015