SINGH v Minister for Immigration

[2014] FCCA 2621

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2621

Catchwords:
MIGRATION – Application for Student (Temporary)(Class TU) visa – where applicant did not bring requested certificates of enrolment to tribunal hearing –  where tribunal allowed time for applicant to provide certificates – where certificates not provided – application dismissed.

Legislation:  

Migration Regulations 1994 (Cth), schedule 2, cll.570.232, 571.232, 572.231, 572.235,  573.231, 574.231 and 575.231

Applicant: IQJOT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1911 of 2013

Judgment of: Judge Jarrett

Hearing date: 24 July 2014

Date of Last Submission: 24 July 2014

Delivered at: Melbourne

Delivered on: 24 July 2014

REPRESENTATION

The Applicant appeared on his own behalf

Solicitor for the Respondents: Ms Randall-Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 12 November 2013 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to this application fixed in the sum of $3000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1911 of 2013

IQJOT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

1. This is an application for review of a decision of a migration review tribunal that was made on 8 October, 2013 in which the tribunal affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Student (Temporary) (Class TU) visa. 

2. The grounds of review set out in the application filed on 12 November, 2013 are very brief.  They are:  “Lack of natural justice;  enough time not given by MRT;  I thought I was given seven working days but the decision came before that;  I was not clear about the due date for the enrolment document”. 

3. The material before me discloses that the applicant is a citizen of India.  He applied for a student visa on 31 July, 2012. 

4. On 23 October, 2012 a delegate of the first respondent refused to grant him that visa.  To the extent that it is relevant now, and it is not very relevant, the delegate determined that the applicant did not attend a course of study for a ten month period while he held his previous student visa.  On that basis the delegate determined that the applicant did not meet the requirements of cl.572.235 of schedule 2 of the Migration Regulations because he had not substantially complied with condition 8516 of his previous visa.

5. The applicant applied for a review of the delegate’s decision on 12 November, 2012.  On 27 August, 2013 the tribunal invited the applicant to appear before it and to provide information and make submissions in support of his application for review.  The invitation letter appears at page 54 of the court book.  The terms of the invitation letter make it plain that the applicant was to take with him to the hearing certain documents.  In particular the letter provided:

   “Additionally please provide this information so that a decision can be made as quickly as possible:

   1. A copy of your current certificate of enrolment as required for the grant of a student visa.

   2. Documents that show you are currently enrolled in a course or have an offer of enrolment in a registered course as required for the grant of a student visa.

   3. Documents that show your past studies in Australia, including copies of all of your attendance certificates, academic transcripts and certificates of completion.

   4. An explanation of any gaps in your enrolments or any documentary evidence relevant to your explanation. 

6. A hearing took place before the tribunal on 30 September, 2013 and the applicant appeared at that hearing.  He was assisted at the review by a registered migration agent. 

7. The tribunal, in its reasons for decision, (see pages 71-73 of the Court Book) recorded that before the first respondent’s delegate the issue was whether the applicant met the criterion in cl.572.235 of schedule 2 of the Regulations. But before the tribunal the issue was different. It was whether, at the time of the tribunal’s decision, the applicant met the enrolment requirements for a student visa.

8. As the tribunal pointed out in its reasons, quite correctly, cll.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of schedule 2 of the Regulations were each available for the applicant to satisfy and (along with other requirements) thereby secure his visa. But in respect of each of those clauses, the applicant needed to demonstrate that he was enrolled in a course of study or that he had a current offer of enrolment in a course of study that was, for the purposes of those clauses, suitable. He did not do that.

9. The tribunal found that there was no evidence before the tribunal that the applicant was then enrolled in or had a current offer of enrolment in any applicable course of study.  The tribunal’s observation in that regard was correct.  There was no error of fact, let alone any error of law in the tribunal’s decision in that respect. 

10. The tribunal’s reasons record that on 30 September, 2013 the applicant suggested that he might be able to get a certificate of enrolment and for that purpose the tribunal indicated that it would not make a decision on his case for seven days or, that is, until 7 October, 2013.  The tribunal’s decision was made and dated 8 October, 2013.   To the extent therefore that it might be said that the applicant asked for an adjournment of the tribunal hearing so that he could obtain the relevant documents, an adjournment was granted albeit for a period of seven days.

11. The Minister in this case submits that an adjournment was not required and I tend to agree with that submission.  The letter of invitation to attend the hearing was quite explicit in its terms about what documents needed to be brought to the hearing by the applicant.  There is nothing in the material before me which provides any explanation at all as to why that request was ignored. 

12. In all of the circumstances no jurisdictional error is revealed by the record of the tribunal or by the arguments made by the applicant in support of his application in this matter. 

13. For those reasons the application filed on 12 November, 2013 must be dismissed with costs. 

RECORDED: NOT TRANSCRIBED

1. Costs ought to follow the event.  The ordinary rule is that in these sorts of cases, costs should follow the event absent special circumstances.  There are no special circumstances here. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  28 November 2014