Singh v Minister for Immigration
[2013] FMCA 233
•6 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 233 |
| MIGRATION – “Genuine consideration” by Migration Review Tribunal of issues – failure of applicant to provide relevant certificate of enrolment. |
| Migration Act 1958 (Cth), s.65 Migration Regulations (Cth), Sch 2, cls.571.22, 571.222, 571.222(1), (1)(c), 571.222(2) |
| Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 |
| Applicant: | SANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | CAG 65 of 2012 |
| Judgment of: | Neville FM |
| Hearing date: | 6 February 2013 |
| Date of Last Submission: | 6 February 2013 |
| Delivered at: | Canberra |
| Delivered on: | 6 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitor/Advocate for the Respondent: | Ms J. Cumming |
| Solicitors for the Respondent: | Clayton Utz, Canberra |
ORDERS
The application be dismissed with an order for costs in favour of the First Respondent in the sum of $2000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 65 of 2012
| SANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 6th February, orders were made and oral reasons given in this matter. What follows are the reasons as revised from the transcript.[1]
[1] Upon the appeal being lodged with the Federal Court of Australia, the file relating to this matter was removed to the Sydney Registry of that Court. It was only recently returned to this Court. In such circumstances, it was not possible to edit, revise and finalise these reasons without the relevant file: hence the delay in providing settled reasons.
The Applicant, Mr Singh, filed an application with this Court on 27th August 2012 in which he sought to challenge a decision of the Migration Review Tribunal (“the MRT” or “the Tribunal”) that was delivered on 27th July 2012.
Formally, the First Respondent opposed the application and sought orders for its dismissal, together with an order for costs.
Background
From the reasons of the Tribunal, together with materials provided in the Court Book (compiled by the Solicitors for the First Respondent) the following summary will suffice.
The Applicant, Mr Singh, is a national from India, aged 20 years. He came to Australia to complete high school (years 11 and 12). He was enrolled at a ‘school’ that traded under the name of ANC High School. He was enrolled to complete a Senior Secondary Certificate of Education. The commencement of the course was to be on 27 January 2012, and to conclude on 31 December 2013.[2]
[2] See Court Book (“CB”) p.18.
The Applicant had applied for a Student (Temporary) (Class TU) visa. It was lodged on 12 December 2011. Initially, he was only granted a bridging visa while his application for the temporary student visa was being considered.
On 21 February 2012, Mr Singh was advised in writing by a delegate of the First Respondent that his application for a student visa had been refused. That letter confirmed that the reason for the refusal was the failure to satisfy [clause] 571.222 of the Migration Regulations 1994. In particular, the letter stated: “the applicant has failed to provide the evidence of a valid and active CoE [Certificate of Enrolment] to demonstrate that he is currently enrolled in a course of study as per Regulation 571.222.[3]
[3] CB pp.54-60.
Decision of the Tribunal
As recorded by the Tribunal, Mr Singh said that his school term commenced on 27 January 2012.[4] However, a few days before it began, he became ill and could not attend school. When he recovered, he phoned the school and advised them that he was unwell. The school informed him that they had cancelled his Certificate of Enrolment (“CoE”). They had not sent him any notification or warning of their proposed course of action. He advised the school that his visa was still being processed and asked if they could issue another CoE. He said that the school advised him that it was necessary to pay his fees again, and in consequence of this, he thought it was necessary for him to apply to the Tribunal to secure a valid student visa.
[4] The Tribunal’s decision begins at CB p.109.
In response to questions from the Tribunal regarding his time since the cancellation of his most recent CoE, Mr Singh said that he had been living in Sydney but then had moved to Canberra and was living with a friend from his hometown in India. He said he had been working two or three days per week.
He was asked about inquiries he had made to continue his studies in Australia. He said that he had paid $14-15,000 to Uni World College when he came to Australia from India in approximately 2009. He said that due to the negligence of that school, his visa was cancelled, but reinstated by the Tribunal in an earlier decision in 2011.
Mr Singh advised the Tribunal that his college had shut down, and that signs had been put up confirming that the premises were available for lease. He said he sought advice from the Department, and asked what he should do in the circumstances of his college having closed. He said the Department provided him with a form through which he could either claim a refund of his fees, in order to be readmitted to another course, or he could obtain confirmation of the studies he had thus far completed. Mr Singh confirmed that, unfortunately, none of these things took place.
He then confirmed to the Tribunal that he had sought admission to a school called ANC High School, and to obtain a new CoE. He confirmed to the Tribunal that he was still attempting to secure a current CoE, but which he would obtain only upon securing a student visa.
In its ‘Findings and Reasons’, at [21] – [29], the Tribunal confirmed it was satisfied that the Applicant has applied for a visa on a Form 157A. The Tribunal also noted that subclause 571.222 of the Regulations requires the Applicant to give to the Minister (or to the Tribunal) a Certificate of Enrolment relating to the Applicant undertaking a course of study, the provider of which is not a suspended education provider. This Certificate must be current at the time of the Tribunal’s decision.
At [23] of its decision, the Tribunal said:
… While the Applicant indicated that he can provide a CoE in the near future, the Tribunal considers that the delegate’s decision record clearly identifies provision of a valid CoE in an acceptable course as a necessary requirement for grant of the visa applied for, and that the Applicant has been aware of this requirement at least since received the delegate’s decision record dated 21 February 2012. The Tribunal considers that the Applicant has had sufficient time to obtain and provide a valid CoE since that time, yet he has failed to do so. Accordingly the Tribunal makes this decision on the information available to it.
Then at [24] – [25] the Tribunal said: “While the Tribunal accepts that the Applicant provided a CoE at the time of Application, the Applicant did not dispute at the hearing that he did not have a current CoE. The Tribunal finds that at the time of decision, there is no CoE before it to show that the Applicant is currently enrolled in an acceptable course. The Tribunal therefore finds that the Applicant does not meet subclause 571.222 at the time of decision.”
The Tribunal also found that the Applicant does not meet the requirement for visa provided for in subclasses 576 and 580 of the Regulations.
Grounds of Review
The grounds of the Application are stated with an unfortunate degree of generality and imprecision. As a self-represented litigant, this is hardly novel, or perhaps surprising.
In terms, the Application simply states that “the Tribunal failed to exercise its jurisdiction”. More particularly, the Applicant states:
The Applicant provided a medical certificate to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of its credit findings. It was an error for the Tribunal to place no weight on the documents without engaging in an intellectual process as [sic] the contents of the documents.
To compound the Applicant’s difficulties is the simple fact that, for the purposes of this hearing, he has provided no evidence to support his claim(s). Indeed, in his affidavit filed in support of the Application, Mr Singh simply stated that he arrived in Australia as a student “in around 2009”, and that the delegate of the Minister “decided to refuse to grant the visa on 21 February 2012.” He deposed further that he applied “for review of the delegate’s decision on 2 March 2012, but the Tribunal member affirmed the delegate decision on 27 July 2012.” Finally, Mr Singh deposed that: “The decision was fundamentally influenced by not having CoE [Certificate of Enrolment].” Mr Singh then attached a copy of the Tribunal’s decision. Such is/was the sum total of his evidence [and submissions] to the Court.
Other than what I have recorded, the Applicant provided no submissions – written or oral – to the Court in support of his Application.
Consideration & Determination
In its reasons, the Tribunal makes plain the requirements for Mr Singh to satisfy the regulations under the Migration Act 1958 (“the Act”), and in particular, the eligibility requirements set out in sub-clause 571.222 in Schedule 2 of the Migration Regulations 1994 (“the Regulations”). The Tribunal confirmed that it was essential for his visa that he have a current confirmation/certificate of enrolment. He did not provide it for the hearing before the Tribunal, and has not done so since. The Tribunal noted, at [24] of its reasons, that the Applicant had the relevant certificate at the time of his application, but he did not do so at the time of the hearing. Thus, to repeat: neither before, during, or after the hearing has he provided a confirmation/certificate of enrolment as required by the Regulations under the Act.
In particular, I note that clause 571.22 of Schedule 2 of the Regulations refers specifically to (emphasis added) “criteria to be satisfied at time of decision.”
In relation to Mr Singh’s submission that the Tribunal failed properly to consider the material before it, I note that, in the written submissions on behalf of the Minister, there are many cases cited which explain the responsibility of a Tribunal to consider the evidence before it. Respectfully, I accept and adopt the submissions that paragraph 13 and following on that matter. It is sufficient to note that in Minister for Immigration and Multicultural Affairs v Jia Legeng the joint judgment of Gleeson CJ and Gummow J referred, at [105], to the requirement that there be “genuine consideration to the issues raised ….”[5]
[5] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.
In my view, the reasons of the Tribunal make clear that the Tribunal did consider Mr Singh’s claim and did so on such material as it had before it. It applied literally the relevant provisions of the Act and the Regulations to the facts presented to it. In my view, the Tribunal could do no more.
In the High Court said in Minister for Immigration and Citizenship v SZJSS, at [23] (internal citations omitted):[6]
[23] General principles governing the limited role of the courts in reviewing administrative error have long been identified. As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions” is not a sufficient reason for overturning a judicial decision upon a review. Further, Brennan J said in Attorney-General (NSW) v Quin
“The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
[6] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164.
In short, the Applicant effectively seeks that this Court re-consider the decision of the Tribunal. The scope of such review, as is clear from the High Court statement in SZJSS, is significantly limited. It cannot embrace the merits of the decision, which appears to be what the Applicant seeks.
The general circumstances that surround Mr Singh’s education and student visa are decidedly unfortunate, as I have noted them earlier in these reasons, and as did the Tribunal. However, the regulations, for all their density, are clear in relation to students and the requirement to be properly enrolled in an “acceptable course.” The Applicant was not so enrolled, and therefore did not meet the requirements of the Regulations. I note in particular that the Applicant was clearly on notice since at least the time of the Delegate’s decision on 21 February 2012 that a valid CoE was a requirement to secure a valid student (temporary class TU) visa.[7]
[7] In this regard, see generally SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
In all of the circumstances, I do not see that there is any relevant error of law that would require this Court to intervene in or otherwise interfere with the decision of the Tribunal.
The Application should be dismissed with an order for costs in favour of the First Respondent in the sum of $2000.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 3 April 2013