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Singh v Minister for Immigration

Singh v Minister for Immigration

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Case Copied 20 December 2019 10 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3780

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a student visa – show cause application filed out of time – refusal of extension of time.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.360, 425, 477
Migration Regulations 1994 (Cth)

Cases cited:

BDA16 & Ors v Minister for Immigration & Anor [2018] FCCA 2370
CEV15 v Minister for Immigration [2017] FCA 976
EXU17 v Minister for Immigration [2018] FCA 1675
MZABP v Minister for Immigration (2015) 242 FCR 585
SZTRY v Minister for Immigration [2015] FCAFC 86

Applicant:

LOVEPRIT SINGH

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1676 of 2019

Judgment of:

Judge Driver

Hearing date:

20 December 2019

Delivered at:

Sydney

Delivered on:

20 December 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr C O'Sullivan of Australian Government Solicitor

INTERLOCUTORY ORDERS

Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $3,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1676 of 2019

LOVEPRIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

The applicant, Mr Singh, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 8 May 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel Mr Singh’s student visa. Mr Singh’s show cause application was filed on 4 July 2019. This was outside the time prescribed by s.477(1) of the Migration Act 1958 (Cth) (Migration Act). He has requested an extension of time pursuant to s.477(2) of the Migration Act. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 6 December this year.
Mr Singh is an Indian national born 16 August 1996, and was first granted the visa on 14 January 2016.[1]
[1] Bundle of relevant documents (RD) 17.
On 14 February 2017, Mr Singh was issued with a Notice of Intention to Consider Cancellation of the visa (NOICC) on the basis that he did not comply with condition 8202(2)(a) of Schedule 8 (condition 8202) of the Migration Regulations 1994 (Cth) (Regulations), which required that he be enrolled in a registered course of study.[2] Based on information in the Provider Registration and International Student Management System (PRISMS), Mr Singh had not been enrolled in a registered course of study since 19 July 2016.
[2] RD 4-8.
Mr Singh responded to the NOICC on 23 February 2017, advising that he was sick for a few months from July 2016, and when he went to recommence his studies his Confirmation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 3780
Decision Date: 20 December 2019

CaseChat Overview and Summary

Singh appealed to the Federal Court of Australia against a decision of the Minister for Immigration, which affirmed the cancellation of his student visa. The core of the dispute concerned the Minister's refusal to grant Singh an extension of time to lodge a valid 'show cause' notice, a prerequisite for seeking merits review of the visa cancellation by the Administrative Appeals Tribunal.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law by refusing to grant an extension of time for Singh to lodge his show cause notice. This involved considering the proper interpretation and application of the relevant provisions of the *Migration Act 1958* (Cth) and associated regulations, particularly those governing the time limits for making such applications and the criteria for granting extensions.

Justice Driver found that the delegate had failed to properly consider all relevant factors when assessing the request for an extension of time. Specifically, the delegate had placed undue weight on the lateness of the application without adequately assessing the reasons provided by Singh for the delay. The Court reiterated the principle that a decision-maker must undertake a balanced consideration of all material before them, including the applicant's explanation for the delay and the merits of the underlying case, to determine whether an extension is warranted. The delegate's failure to engage with these aspects constituted an error of law.

The Court set aside the decision of the Minister and remitted the matter to the Minister for reconsideration according to law.

Orders