Singh v Minister for Immigration
[2013] FCCA 384
•3 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 384 |
| Catchwords: MIGRATION – Application for judicial review of Migration Review Tribunal decision – application approximately 130 days out of time – consideration of merits of application – education provider certifying unsatisfactory attendance – insuperable obstacle to application – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 Jayasekara v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 199 Singh v Minister for Immigration and Citizenship [2011] FMCA 972 Mo v Minister for Immigration and Citizenship [2009] FMCA 1026 Singh v Minister for Immigration and Citizenship [2009] FMCA 1261 Mazumder v Minister for Immigration and Citizenship [2010] FMCA 76 Patel v Minister for Immigration and Citizenship [2011] FMCA 112 Luo v Minister for Immigration and Citizenship [2011] FMCA 160 Alsunaid v Minister for Immigration and Citizenship [2011] FMCA 238 |
| Applicant: | SUKHAVEER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1019 of 2012 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 21 March 2013 |
| Date of Last Submission: | 21 March 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 3 June 2013 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms Latif |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The application for an extension of time is refused.
The application is dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1019 of 2012
| SUKHAVEER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 6 March 2012.
The application was filed almost 130 days out of time and accordingly the first question for the Court is whether to extend time to enable the applicant to bring the application.
For the reasons that follow, I do not think that the applicant’s chances of success are sufficient to justify the extension of time even if all other matters were presumed in his favour. The application will be dismissed accordingly.
The application
The application filed on 17 August 2012 asserts the following relevant grounds:
“I got refusal from MRT on 6 March 2012 and then I apply for ministerial intervention. And refused on 02/08/2012. I think MRT Tribunal and department of immigration did not look my situation.” (sic)
The affidavit filed contemporaneously with the application added nothing to that observation, although it did annexe a copy of the Tribunal’s decision.
On 3 October 2012, Registrar Caporale made orders which inter alia ordered the applicant to file and serve any amended application and written submissions, neither of which have been done.
Relevant history
The following recitation of facts is taken from the written submissions of the first respondent, which are not controversial.
The applicant is a 29-year old citizen of India who was issued a subclass 572 (Vocational and Education Training Sector) visa on
19 November 2007. That visa was subject to Condition 8202. That Condition (8202(3)(b)) provides relevantly that:
“A holder meets the requirements of this subclause if neither of the following applies;
(a) …
(b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving a satisfactory course attendance for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.”
On 18 May 2009, the applicant’s education provider certified that the applicant’s class attendance was unsatisfactory and on 7 October 2009 he applied for a further visa. It was the refusal of that application that gave rise in the ultimate to this proceeding.
On 13 November 2009, a delegate of the first respondent refused the application and that led to the application to the Tribunal on
3 December 2009. The applicant appointed a migration agent and asked that all correspondence be sent to his representative.
On 6 January 2010, the applicant provided evidence about his financial situation, education history and medical fitness during the term of his last visa.
On 14 November 2011, the applicant was invited to appear before the Tribunal on 6 December 2011. The invitation was sent to the address indicated on his review application but the applicant did not respond, appear or provide further evidence.
On 15 December 2011, the Tribunal by letter invited the applicant to comment on information and in summary alerted the applicant to the fact that his education provider had certified his class attendance as unsatisfactory in May 2009 and that as a result the delegate found he had breached Condition 8202 of the applicant’s last substantive visa.
The letter was returned to the Tribunal marked as “left address/unknown.” On 16 December 2011, the applicant’s migration agent contacted the Tribunal and was subsequently permitted to provide evidence and argument, which was done on 28 February 2012. Medical certificates were provided in support of the applicant’s claims.
The Tribunal ultimately concluded that it was not satisfied that the applicant had complied substantially with Condition 8202 of his previous visa on the basis of his education provider certifying the applicant not achieving satisfactory course attendance for the purpose of the Condition. The Tribunal considered the applicant’s claims of unfairness as a result of his ill health but considered aspects of his claim were not supported by evidence and that it was not open to the Tribunal to go behind the certification provided in any event.
The submissions made at hearing
The applicant was self-represented. He asserted that his attendance was only two per cent down and that his agent had not informed him of the hearing before the Tribunal. He said he was busy with his study and that the agent forgot to inform him in time.
Counsel for the first respondent submitted that the Court should look at the merits of the application in considering whether time should be extended. It was submitted that the applicant had raised no new or further issues to those already rejected by the Tribunal. The s.359A letter had been sent to the applicant’s nominated representative and to the applicant. The representative received the material, it was only that sent to the applicant that was returned. The requirements of s.359A of the Migration Act 1958 it was submitted were met.
Counsel submitted that if the agent was negligent this was governed by the observations of French J in the Full Court of the Federal Court and by the High Court in the matter of SZFDE.
In Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 at [129] French J, as his Honour then was, said:
“There are sound policy reasons why a person, whose conduct before an administrative tribunal has been affected, to his or her detriment, by bad or negligent advice, should not be heard to complain that the detriment was unfair in any sense that would vitiate the decision made. But where a person’s participation in a decision-making process is affected by the material dishonesty of another which conveys a false impression to the decision-maker, then that dishonesty may be said to have distorted or vitiated the approach and to have affected the decision. Whether it has will depend upon a consideration of the circumstances of the particular case.”
In the appeal before the High Court, SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 the High Court observed at [53]:
“In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.”
Counsel for the first respondent also relied upon the written submissions filed, which inter alia point out the absence of a cogent explanation for the delay in application and the fact that the Tribunal, it was submitted, correctly decided that it could not go behind the certification from the applicant’s education provider.
Consideration
While the explanation for delay is by no means satisfactory, I do not regard this as being of primary significance.
What is of significance is the fact that there is binding authority, or at least authority which is not clearly wrong, that the certificate from the education provider was conclusive.
In Jayasekara v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 199, Heerey and Sundberg JJ, who constituted the majority of the Full Court of the Federal Court, found relevantly that a requirement in Condition 8202(3)(d) to provide a certificate is not a Condition that can be satisfied by substantial compliance. In the absence of a certificate there was no compliance with Condition 8202(3)(d) and the Tribunal in that instance was correct in refusing to grant the applicant a further student visa.
This case is slightly different of course in that it concerns not the absence but rather the existence of a negative certificate but the principle seems to me to be indistinguishable.
Even if that were wrong the Tribunal quoted at paragraph 43 of its decision (CB117) a number of decisions by members of this Court to the effect that this Court should not go behind a Condition 8202(3) certificate.
I note that in addition to those decisions more recently Judge Lindsay in the matter of Singh v Minister for Immigration and Citizenship [2011] FMCA 972 has adopted the same approach to Condition 8202 certification, and appears at [8] to have adopted the same view of Jayasekara that I have expressed above. The reasons for decisions of this Court in Mo v Minister for Immigration and Citizenship [2009] FMCA 1026, Singh v Minister for Immigration and Citizenship [2009] FMCA 1261, Mazumder v Minister for Immigration and Citizenship [2010] FMCA 76, Patel v Minister for Immigration and Citizenship [2011] FMCA 112, Luo v Minister for Immigration and Citizenship [2011] FMCA 160 and Alsunaid v Minister for Immigration and Citizenship [2011] FMCA 238 are not in my view clearly wrong. I am clearly bound to follow them.
Conclusion
In my view once the Tribunal found, and it was clearly correct to find, that the applicant’s education provider had certified unsatisfactory attendance it is immediately obvious that the applicant would never satisfy the Tribunal that he had complied with Condition 8202. This being so the Tribunal was clearly not wrong to uphold the decision of the delegate to refuse the applicant’s visa application. It follows that the application for an extension of time must be refused and the application dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 3 June 2013
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