Singh v Minister for Immigration

[2019] FCCA 3659

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3659

Catchwords:
MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – jurisdictional error – application for student visa – applicant failed to appear at hearing before the court – evidence indicates applicant aware of hearing – applicant has forwarded written request to transfer proceeding to Melbourne day prior to hearing – applicant assets he is unwell – application for review does not contain clear assertion of jurisdictional error – application for transfer and adjournment not supported by satisfactory evidence – no obvious merit in application – application for transfer dismissed – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C
Migration Act 1953 (Cth)
Migration Regulations 1994 (Cth), Sch.2, cl.573.222

Cases cited:

MZZGY v Minister for Immigration and Border Protection [2014] FCA 488

Applicant: PARMINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 48 of 2018

Judgment of: Judge Brown

Hearing date: 26 November 2019

Date of Last Submission: 26 November 2019

Delivered at: Adelaide

Delivered on: 26 November 2019

REPRESENTATION

Counsel for the Applicant: No appearance

Solicitors for the Applicant: N/A

Counsel for the Respondents: Ms Milutinovic

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application by the Applicant to have the proceedings adjourned and transferred to the Melbourne Registry is dismissed.

2. The First Respondent’s name be changed from the Minister for Home Affairs to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

3. The Applicant pay the costs of the First Respondent fixed at five thousand dollars ($5,000.00).

4. The application filed on 1 February 2018 be dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 48 of 2018

PARMINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This morning, an application for judicial review of a determination of the Administrative Appeals Tribunal[1] comes before me.  The applicant in the proceeding is Parminder Singh.  The first respondent to the application is the Minister for Immigration and Border Protection, who is now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural affairs. 

   [1] Hereinafter referred to as “the AAT” or “the Tribunal”

2. The applicant is a citizen of India.  On 24 September 2015 he applied for a student temporary class TU subclass 573 visa pursuant to the provisions of the Migration Act 1958.[2]  It is convenient to refer to that visa as “the visa” in these orally delivered reasons. 

   [2] Hereinafter referred to as “the Act”

3. On 22 July 2016 a delegate of the Minister refused to grant the visa, and, as a consequence of that decision, the applicant applied to the AAT for a merits review of that decision.  The AAT delivered its decision in oral form shortly after the hearing of the review application, which was scheduled for 9 January 2018.  The Tribunal affirmed the decision of the Minister’s delegate not to grant the visa in question.

4. In order to be granted the visa in question, the applicant concerned must satisfy a number of criteria, which can be best expressed in short hand form as being that the applicant concerned must be a genuine student, who only intends to remain in Australia on a temporary basis, whilst he or she completes his or her studies.

5. The exercise of the discretion is controlled by a ministerial direction which directs that a decision-maker must consider the circumstances of the applicant; the value of the course which he or she is undertaking in respect of the applicant’s future; the applicant’s immigration history; what are their incentives to stay in Australia or return home; and if they are using the student visa program to facilitate their ongoing residence in Australia; together with any other matter relevant. 

6. At the hearing before the AAT, the applicant provided evidence that he had undertaken a number of courses in Australia since arriving in this country on 23 June 2008.  At the time of the hearing, the applicant was not enrolled in a course of study.  The member concerned, in his oral reasons, indicated to the applicant as follows: 

   “It’s a condition you have to satisfy to grant a student visa. So if you don’t have a Certificate of Enrolment or proof of enrolment in an approved course you haven’t satisfied the requirement of a prerequisite and as consequence of that your application for a student visa has to be rejected and the tribunal has no discretion.”[3]

   [3] Court book at 121 [17]

7. He went on to say:

   “No choice – no options. As you are not currently enrolled and do not hold a current Certificate of Enrolment you do not satisfy clause 573.222 which, as I said, the prerequisite for the grant of a student visa. As you do not meet clause 573.222 you are not eligible for the grant of a student visa. The tribunal does not intend to consider whether you meet the genuine temporary entrant requirement.”[4]

   [4] Court book at 122 [19]

8. Accordingly, the AAT found that, as the applicant had not enrolled in a course of tertiary education or analogous course of study, he had not satisfied the essential prerequisite to the grant of the visa – that he was, in fact, a student, at the time of hearing. 

9. As a consequence of that decision, on 1 February 2018, which, of course, is now approximately 20 months ago, the applicant applied for judicial review of that decision in this Court. 

10. He prepared his own grounds of review, which reads as follows: 

    “Because AAT made a jurisdictional error because it didn’t give me procedural fairness since they didn’t even hear me out and made a decision within 10 minutes.”[5]

    [5] Applicant’s originating application filed 1 February 2018 at 3

11. The application for review was fixed for hearing today, 26 November 2019 at 10:15am, and a notice to that effect was forwarded to the applicant some time ago. 

12. There can be no doubt that the applicant knows of the adjourned date, because, although he has not appeared today, on 25 November 2019, he swore an affidavit, which indicated that he lives at an address in Narre Warren in Victoria.  In the affidavit he deposes as follows:

    “I need my matter moved to Melbourne since I am unable to travel to Adelaide because I suffer from injuries of a violent attack on 19^th May 2019.  My doctors advised me to not work and travel until the next surgery which is scheduled within next 3 months.”[6]

    [6] Affidavit of the applicant dated 25 November 2019

13. Annexed to that affidavit is a statutory declaration which the applicant has affirmed, which indicates that he was assaulted on 19 May 2019 and sustained facial injuries, including a broken eye socket and a blood clot on the brain.  He further goes on:

    “As a result of the injuries sustained the long black hoodie type jacket I was wearing was damaged and taken by medical staff.  I seek the amount of $100 for replacement of the black hoodie type jacket.”[7]

    [7] Statutory declaration of the applicant dated 12 September 2019, annexed to the applicant’s affidavit filed 25 November 2019

14. The affidavit seems to be an application in support of an application for crimes compensation.  It was deposed on 12 September 2019, which is over two months ago now.  No more contemporaneous evidence has been provided.

15. In addition, Mr Singh has provided a medical certificate from Alfred Health, which I assume is the outpatients department of the Alfred Hospital, which indicated that he was attending there for medical treatment from 19 May 2019 to 19 August 2019. 

16. The certificate is dated 12 July 2019, and, again, as is self-apparent, it is now over three months old.  There is also a discharge summary, which indicates that Mr Singh was in hospital in respect of suffering some species of trauma in May of 2019. 

17. Accordingly, although Mr Singh has not attended at Court today, although, as I understand it, counsel for the Minister did indicate that it was open to him to apply to attend Court by telephone, it is implicit in his affidavit that he wishes the proceedings to be transferred to Melbourne and, necessarily, that there is an adjournment of the proceedings. 

18. The Minister opposes that application.  It is the submission of the Minister’s counsel that the application is made at an extremely late stage, that is, essentially, the day of the proceedings, when it is implicit that Mr Singh has lived in Victoria for a significant period of time. 

19. In addition, Mr Singh himself has made no submissions in respect of the grounds for judicial review, and his application itself is un-particularised and can be, perhaps, best summarised as an inchoate plea that he was not fairly dealt because his application was disposed of by a brief hearing followed by an oral decision.  In these circumstances, it seems to be Mr Singh’s perception that he did not get an opportunity to present his case. 

20. In all of these circumstances – the lateness of the  application; the absence of a clearly articulated ground of judicial review, – Ms Milutinovic, counsel for the Minister, submits that it is open to the Court to infer that this is a delaying tactic, which will enable Mr Singh, perhaps, to remain further in this country. 

21. Pursuant to the provisions of rule 13.03C of the Federal Circuit Court Rules, the Court has authority to dismiss an application, if an applicant fails to appear at Court or to prosecute his or her application properly and with due diligence. 

22. I am, of course, aware that Mr Singh is not legally qualified and he is likely to be a person who is not familiar with Court processes due to his background.  However, it is, I think, axiomatic that he has not attended to the prosecution of his matter with a high degree of diligence. 

23. The grounds for review are bald indeed.  The affidavit in support of them is also bland in that he just seeks judicial review.  He doesn’t particularise why the proceedings were unfair, other than that they were dealt with orally.

24. In terms of whether an adjournment should be granted, I have to be aware of the overall interests of justice.  Part of that consideration, in my view, requires me to consider the merits of any application.  In this case, Mr Singh has not delineated any obvious error in respect of the Tribunal’s decision, other than he thinks it was unfair because it was not the decision he wanted.

25. More significantly, on its face, it is self-apparent that Mr Singh did not satisfy an essential prerequisite to the ground of the visa in question; namely, that he was undergoing a course of study and could establish that he was. 

26. In fact, he conceded to the Tribunal that, in fact, he was not undergoing a course of study.  In that context I think I have to consider the medical material which has been provided to me.  It seems relatively clear that Mr Singh was assaulted.  He was assaulted in Victoria after he had filed his application in the registry of the Court here.

27. In my view, the natural time to make an application to transfer the proceedings would have been when Mr Singh had recently moved or better still was considering the move.  For reasons about which I can only conjecture, he elected to make that application on the day fixed for hearing. 

28. Of course, I am sympathetic to Mr Singh because of the assault, which seems to be relatively serious, but the assault was some months ago now and the medical material he has provided is now out of date.

29. In my view, the situation is one which is analogous to that which confronted Davies J in the case of MZZGY v Minister for Immigration and Border Protection.[8]  In the case, Her Honour said as follows in respect of the medical certificate which had been submitted in the case before her:

    “These documents were wholly inadequate to support an adjournment application.  The certificate did not state the nature of the appellant’s condition nor explain why it would prevent the appellant from attending and participating effectively in the Court hearing and the fact that some tablets were prescribed was insufficient reason to be satisfied that the appellant could not attend and participate effectively in the Court hearing.  Furthermore, wholly unexplained was why it was left until late the day before to seek the adjournment.  It is reasonable to infer that the late notice was deliberate and intended to bring about the outcome of an adjournment by the short notice.  I accordingly refused the adjournment application and proceeded to hear the appeal on its merits.”[9]

    [8] MZZGY v Minister for Immigration and Border Protection (2014) FCA 488

    [9] Ibid at [13]

30. So in this case, in my view, the applicant has not explained why he has sought the adjournment and the transfer of the proceedings at this late stage.  He has not provided any up to date medical evidence as to why he could not attend court either by telephone or even in person. 

31. Significantly, he has not advanced any submissions as to why there is a jurisdictional error.  In all those circumstances, I decline the adjournment and the transfer of the proceedings on the basis that I do not think that the adjournment or the transfer of the proceedings would be in the interests of justice.  

32. In terms of the application itself, I am not persuaded that the applicant has established any jurisdictional error in respect of the decision of the Tribunal itself.  The applicant was invited to give evidence before the Tribunal.  He attended before the Tribunal.  There is nothing to indicate that he was not able to put any matter appropriately before the court. 

33. In its decision, the Tribunal referred to the applicant’s oral evidence at the hearing that he did not want to enrol in a course of tertiary education and go to a cheap college because he did not intend to remain in Australia as a resident.  Rather, he wished to enrol in a bachelor’s degree but did not want to pay $90,000 in course fees in case his application for review was refused by the Tribunal. 

34. Accordingly, the evidence indicated that the applicant did not satisfy the necessary criteria as specified in the applicable clause of the regulations – clause 573.222 of schedule 2 – and therefore the applicant did not meet the genuine temporary entry criteria.

35. On that basis, in my view, there is no merit to the applicant’s application.  The applicant was given an ample opportunity to amend his application.  An order was made by the Registrar of the Court on 23 March 2018 that he file any amended application supported by any further affidavit upon it before 11 May 2018. 

36. He was further directed, as I have indicated, to file his submissions 10 days prior to the hearing.  He has not done either of those things so, accordingly, I am satisfied that he has not agitated these proceedings with any due degree of diligence and the only logical explanation for the way he has approached the proceedings today is that he wishes to delay them. 

37. If there is some suggestion by the applicant that the Tribunal was biased, the authorities, in my view, are clear that such allegations must be distinctly and clearly made out.  It is not sufficient for there to be some inchoate submissions to that effect.  Certainly, as I say, the applicant has not filed any affidavit material to outline in further detail why he asserts that the hearing was unfair or biased against him.  There is no transcript of the proceedings. 

38. So for all of those reasons I will dismiss the application and make an order for costs as sought by the Minister.  The normal rule is that costs should follow the event, and I have no reason to depart from the ordinary rule.  The Minister seeks a sum slightly less than the scale amount in the sum of $5000 and, in my view that is a proper amount, so I will make an order for costs to this effect. 

39. I will also formally make an order amending the name of the first respondent to read the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

40. So for those reasons the application is dismissed and it is directed that the applicant pay the first respondent’s costs fixed at an amount of $5000.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 27 February 2020