Singh v Minister for Immigration
[2019] FCCA 3780
•20 December 2019
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) |
| Cases cited: BDA16 & Ors v Minister for Immigration & Anor [2018] FCCA 2370 |
| 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 of Enrolment (CoE) was cancelled, the summer holidays had started, and he intended to continue his studies in in the first intake in 2017.[3]
[3] RD 9.
The delegate cancelled the visa on 6 March 2017.[4] Mr Singh applied to the Tribunal for review on 8 March 2017.[5] He was initially represented by a migration agent, who ceased acting for him on 28 March 2019.[6] Mr Singh appeared before the Tribunal to give evidence on 2 May 2019.[7] The Tribunal affirmed the decision under review on 8 May 2019.[8]
[4] RD 21.
[5] RD 22 - 23.
[6] RD 23, 35 - 37.
[7] RD 42 - 44.
[8] RD 50 - 56.
Mr Singh lodged the present application for judicial review on 4 July 2019, approximately three weeks out of time.[9]
[9] Section 477 of the Migration Act.
Tribunal decision
The Tribunal was satisfied that Mr Singh had a real opportunity at hearing to present his case, and it identified the issue as being whether he complied with condition 8202, which required that he maintain enrolment in a registered course. The Tribunal noted at [7]-[11] of its decision that Mr Singh did not dispute there were grounds for cancellation.[10]
[10] The Tribunal decision record is at RD 50-56.
Relevantly, the Tribunal’s consideration of its exercise of the discretion to cancel the visa can be summarised as follows:
a)Mr Singh ceased studying in Australia some six months after arriving and he had missed a total of 126 hours (79 per cent) when enrolled, which Mr Singh accepted as correct;[11]
b)by Mr Singh’s own evidence, his claims to the Minister’s Department to have been sick from July 2016 were falsely made by his migration agent. Although he was depressed about the cancellation of his visa in March 2017, he continued working for 30 hours per week as a driver until approximately August 2017 and then for 20 hours per week in a chicken factory up to the Tribunal hearing, and in those circumstances the Tribunal did not accept that Mr Singh’s claimed depression prevented him from studying in Australia;[12]
c)the Tribunal did not accept that Mr Singh was a genuine student or that his intention to reside in Australia was for the purpose of study;[13]
d)Mr Singh claimed, but did not provide corroborating evidence, that he attended a Diploma of Business for three months in April-June 2018 and discontinued due to the cost of fees. Even if this were true, the Tribunal considered Mr Singh’s breach of condition 8202 from 19 July 2016 to April 2018, and June 2018 to 2 May 2019, was “significant”;[14]
e)Mr Singh claimed his father’s farm was affected by flooding, and his father took a second job to support Mr Singh’s family in India but could not support Mr Singh’s study in Australia. Mr Singh remitted money to his family, but the Tribunal noted the primary responsibility of the visa holder is to maintain enrolment in a registered course of study, and it was not satisfied Mr Singh could afford to pay for further registered studies in Australia for the foreseeable future;[15]
f)there may be limited hardship to Mr Singh in that his family would be disappointed and that education in Australia may be more prestigious than in India, but the Tribunal was not satisfied that Mr Singh’s career “would be finished”.[16]
[11] [13]-[14].
[12] [16], [26]-[28].
[13] [17].
[14] [18]-[19].
[15] [22], [31].
[16] [20]-[21], [23]-[25].
Considering the circumstances as a whole, the Tribunal affirmed the decision under review.
The grounds for the application for extension of time are as follows:
1. The applicant failed to understand the nature of email he received from the AAT about refusal. He had similar lapses of judgement in the past.
2. It is not very long delay. The delay is for only few weeks owing to miscomprehension of the AAT decision.
3. The client request that allowing time to file late application is not against the administration of justice but in fact is in the interest of justice that application be allowed.
The grounds of the proposed substantive application contains one ground of review with three particulars (although collectively numbered 1-4) as follows:
1. The Tribunal denied the Applicant procedural fairness and/or breached s425 of the Migration Act.
Particulars
2. The tribunal acknowledged that the applicant’s family farmland was flooded resulting in loss of income.
3. Flood is an act of nature beyond applicant’s control. Due to loss of income applicant had problem to kept himself enrolled in the course.
4. In the given circumstances, the tribunal failed to afford the client an opportunity to commence his study in Australia whilst applicant was requesting an opportunity. (errors in original)
I accept the Minister’s statement of relevant principles as set out in the Minister’s submissions.
Subsection 477(1) of the Migration Act requires an application to the Court to be made within 35 days of the date of the Tribunal decision. Section 477(2) of the Migration Act confers a discretionary power on this Court to extend the 35-day period identified in subsection (1) if an application for an extension of time has been made in writing and the Court “is satisfied that it is necessary in the interests of the administration of justice to make the order”.
The Court’s satisfaction that it is necessary in the interests of the administration of justice to grant an extension of time is a precondition to the exercise of the power and its importance cannot be overstated.[17] The statutory intention of s.477 of the Migration Act must be viewed in the context of the “finality of litigation”.[18]
[17] EXU17 v Minister for Immigration [2018] FCA 1675 at [29], [32]-[33], [44], [48] per Griffiths J.
[18] BDA16 & Ors v Minister for Immigration & Anor [2018] FCCA 2370 at [12].
The principles relevant to the discretion to grant an extension of time are well-established and have been summarised in the decision of CEV15 v Minister for Immigration[19] at [9] as follows:
(1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.
(2) The length of the delay is a relevant factor.
(3) The applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time.
(4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.
(5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account.
[19] [2017] FCA 976.
The Minister contends that the application for an extension of time should be refused because the proposed substantive application is unmeritorious. Further, the delay has not been adequately explained. It is accepted that there would be no prejudice to the Minister, although the absence of prejudice in itself is insufficient to warrant the grant of an extension of time.[20]
[20] SZTRY v Minister for Immigration [2015] FCAFC 86 at [6].
As the Minister notes, the delay in this matter was three weeks, which is not excessive. I would describe it as a moderate delay. Mr Singh seeks to explain the delay in his affidavit accompanying his show cause application. I received that affidavit as evidence.
Mr Singh was not required for cross-examination. Mr Singh acknowledges being notified of the Tribunal decision but says he did not understand it. He says he made a mistake, owing to stress. That is not a particularly persuasive explanation for Mr Singh’s delay in coming to court. If, however, he was able to advance a good arguable case of jurisdictional error by the Tribunal, I would be minded to grant the extension of time. Mr Singh’s difficulty is that there is no real merit in his proposed grounds of review. The Minister’s submissions deal with those proposed grounds. I agree with those submissions.
The grounds of review in the proposed substantive application do not have sufficient prospects of success, even at a “reasonably impressionistic” level.[21]
[21] MZABP v Minister for Immigration (2015) 242 FCR 585 at 597-598 [62] per Mortimer J.
Ground 1 alleges a breach of s.425 of the Migration Act. Section 425 concerns Part 7 reviewable decisions and requires that the Tribunal invite an applicant to appear at a hearing to give evidence and present arguments. Mr Singh’s application before the Tribunal was a Part 5, not Part 7, reviewable decision. Even assuming he intends to allege a breach of s.360 (the analogous Part 5 provision), this is misconceived as Mr Singh did attend a hearing, and was given a meaningful opportunity to make submissions.
Grounds 2 and 3 refer to Mr Singh’s evidence about a flood in his family’s farmland. The Tribunal plainly gave Mr Singh’s claims about the flood proper, genuine and realistic consideration (as summarised above). To the extent that Mr Singh contends the Tribunal should have assessed those claims differently or reached a different conclusion, this would amount to no more than impermissible merits review.
In all the circumstances, it was open to the Tribunal to affirm the delegate’s decision given its findings that Mr Singh’s breaches were “significant” and that that it was not satisfied he was a genuine student or had the ability to maintain enrolment in the reasonably foreseeable future.
In his oral submissions, Mr Singh reiterated some of the matters he put before the Tribunal. Those issues were considered by the Tribunal, but it found them unpersuasive. In his submissions in reply, Mr Singh sought more time. As I put to him, however, I see no point in delaying or deferring a decision in this matter.
I conclude that the interests of the administration of justice do not require the granting of an extension of time in this case. I will, therefore, refuse the request for an extension of time. The consequence is that the show cause application is incompetent. I will order that, pursuant to s.477(2) of the Migration Act, the application for an extension of time be refused.
In consequence of the refusal of the extension of time, the Minister seeks an order for costs fixed in the sum of $3,000. That is somewhat below the amount prescribed in the Federal Circuit Court Rules 2001 (Cth). Mr Singh initially queried the amount sought, but subsequently said that the amount was okay. I will order that 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.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 8 January 2020
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