SINGH v Minister for Immigration

[2013] FCCA 887

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 887

Catchwords:
MIGRATION – Judicial review – refugee review tribunal – application dismissed.

Legislation:

Migration Act 1958

Applicant: SANDEEP SINGH

1^st Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

2^nd Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1468 of 2012

Judgment of: Judge Riethmuller

Hearing date: 18 June 2013

Date of Last Submission: 18 June 2013

Delivered at: Melbourne

Delivered on: 18 June 2013

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Ms Symons

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed at $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1468 of 2012

SANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Revised from Transcript)

1. This is an application for judicial review of a decision of the Migration Review Tribunal dated 30 October 2012 affirming a decision of the delegate to refuse to grant the applicant a student temporary (Class TU) Visa.

Background

1. The applicant first arrived in Australia from India on 30 October 2008 on a student visa.  In December 2010 he applied for a further student visa.  In February 2011 the department invited him to comment on adverse information regarding his visa application which related to the funds that he had available to support his studies.

2. He provided a response and later provided various documents.  Ultimately the delegate refused to grant a visa based not only upon the issues relating to the applicant’s capacity to fund his studies but, importantly for this case, a finding that he was not a genuine student.

Application before the Tribunal

1. The applicant sought a review of the delegate’s decision with the tribunal.  The issues were again aired before the tribunal.  There can be no doubt that the applicant was well aware of these two central issues when the hearing took place before the tribunal, as a result of the delegate refusing his visa on these bases.

2. The applicant provided the tribunal with documents which were noted by the tribunal at paragraph 28 and 58 of the tribunal’s reasons.  The tribunal records in its decision that it specifically raised with the applicant concerns around his history of study and at that point the tribunal adjourned to enable the applicant to speak with his migration agent before responding.  Later the migration agent sought an adjournment of the hearing which the tribunal did not grant.

3. It does not appear to me that there was any real basis for an adjournment of the hearing given that the issues were clearly identified from the delegate’s decision.  The tribunal noted that, in all, the applicant had been in Australia for 43 months although had returned home to India on three occasions which amounted to four of those 43 months (see paragraph 62).  The tribunal identified that the only evidence of a course of studies that was completed by the applicant in Australia was that of a 10 week Certificate 3 course in English completed in April 2011 (see paragraph 64).

4. The tribunal identified that the applicant had been enrolled in seven other courses, all of which had been cancelled.  The applicant indicated that his father had suffered financial losses in his business and that he had suffered some depression.  The tribunal’s assessment of the applicant’s evidence as a whole, however, was that it was “vague and frequently contradictory of previous evidence” (see paragraph 66).

5. The tribunal was not satisfied that the applicant was a genuine student and, therefore, he did not satisfy the relevant visa criteria.

Application before the Court

1. The applicant in his application for judicial review of the decision of the tribunal does not identify any grounds. At a hearing before a Registrar of this Court on 23 January 2013 the Registrar ordered that the applicant file and serve an amended application, supplementary court book, if any, and written submissions. The applicant has done none of that.

2. Aside from submissions that, in substance, appear to seek to have me review the merits of the decision the applicant was unable to identify any error or procedural unfairness by the tribunal.

Conclusion

1. In the circumstances the applicant has not established a jurisdictional error on the part of the tribunal and I must therefore dismiss the application. 

[further argument as to costs]

Costs

1. On the question of costs the applicant was unsuccessful and the Minister was successful.  The Minister seeks costs in the scale sum of $6,646.  Costs ordinarily follow the event in applications of this type.  The fact that the applicant does not have money or a job is not a basis for refusing a costs order.  Significantly, in this application the applicant did not even attempt to articulate any ground for his application in his initiating document.  Nor did he attempt to articulate any ground of review in any outline of argument or other document despite being directed to file further documents by March of this year.

2. I therefore order that the applicant pay the first respondent’s costs fixed at $6,646.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  25 July 2013