SINGH v Minister for Immigration - [2012] FMCA 548

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 548

MIGRATION – Application for judicial review of a decision of the Migration Review Tribunal – grounds of application in part difficult to construe – application for extension of time – application devoid of merit – application dismissed.

Migration Act 1958, s.65
Migration Regulations 1994, cl.572.223

Shrestha v Minister for Immigration and Citizenship [2008] FCA 1296

Applicant:

GURIQBAL SINGH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 306 of 2011

Judgment of:

Burchardt FM

Hearing date:

30 May 2012

Date of Last Submission:

30 May 2012

Delivered at:

Adelaide

Delivered on:

4 July 2012 (By video link to Adelaide)

REPRESENTATION

The Applicant:

In person

Counsel for the First Respondent:

Ms Shepherd

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Applicant’s application for an extension of time be dismissed.
The Application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,685.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 306 of 2011

GURIQBAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 21 October 2011. Because the application was only filed on 6 December 2011, the applicant requires, and has sought, an extension of time. The reasons for that are indicated in his application as being that the applicant did not know his legal options and did not have enough money to pay for legal advice and that he had to ask for help from many people to help him with his application. I would observe that the Minister opposes the extension of time on the sole ground that the application has no prospects of success.
The application sets out three grounds which are as follows:
“1.    Tribunal did not consider the documents already provided to Immigration. There is jurisdiction error in the decision of Migration Review Tribunal.
2.    Tribunal Failed to identify the number of courses I had undertaken. They had wrong information about my enrolment on their system. There is jurisdictional error in the decision.
3.    Tribunal also failed to provide me time or even ask me if I need time for proving my financial capacity.”
The applicant has not expanded very much, if at all, upon those assertions. No written submissions have been filed by the applicant, although I note it does not appear that he has been ordered to do so. What he did do was set out in his affidavit a very short recitation of the facts which repeats, relevantly, the complaint about not being provided further time to provide evidence of financial resources and goes on to state “As it was my first hearing of such a kind I was not aware of procures (sic) and was nervous but rather than helping me out and providing me information and opportunity to prove myself. I was straight away given decision.”
It is the Minister’s submission that none of the grounds can possibly be made out and for the reasons that follow I agree and the application must be dismissed with costs. Given the paucity of materials filed by the applicant, one has to commence with the matters as set out in the Tribunal’s reasons for decision.
The applicant came to Australia on a student visa. He applied for a temporary student visa under s.65 of the Migration Act 1958 (“the Act”) on 16 November 2010. A delegate refused to grant the visa on 18 January 2011 and did so on the basis that the applicant was not a genuine applicant for entry and stay as a student because he did not satisfy the requirements of cl.572.223 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).
The Tribunal in its decision noted that at the time the visa application was lodged, there were a number of subclasses of the relevant visa. The Tribunal referred (having dismissed a number of other possibilities) to clause 572.223 and set out the relevant subclause in full. Amongst other things, one of the matters required to be established at the time of decision was that the applicant had appropriate financial means and had achieved a relevant standard of English.
This, of course, was a subset of the requirement that the applicant be:
“…a genuine applicant for entry and stay as a student.”
The Tribunal noted, at paragraph 16 (CB147), that:
“… The applicant provided in support of his application evidence of current health insurance, letters from Cambridge International College indicating that he had completed 75% of a Diploma course in Welfare Studies, and two Confirmations of Enrolment relating to consecutive courses in Cookery (1/2012-1/2013) and Hospitality (1/2013-1/2014), each of 12 months’ duration at a total of cost of AUD$18,300, of which AUD$500 had been paid as a deposit. He had also provided to the Department evidence of a loan to his father of INR350,000 dated 22 December 2010 and an IELTS test results record issued in 2006.”
The Tribunal continued at paragraph 19 (CB147-148):
“19. The Tribunal invited the applicant to comment under s.359AA of the Act on information that over the four years in which he had been in Australia as a student visa holder, he had cancelled his enrolments in registered courses of study on no fewer than twelve occasions for an assortment of reasons, had never successfully completed any such course of study while a student visa holder, and had enrolled in a bewildering array of unrelated courses, ranging from Welfare Studies to Horticulture, and from Graphics to Cookery. These matters, individually and certainly collectively, raised serious doubts as to his genuineness as an applicant for entry and stay as a student.
20. The applicant opted to respond then and there, but proceeded to bluster, repeating that he had completed 75% of a Welfare Studies Diploma. The Tribunal observed that it had raised a much larger question, and that, in any event, the 75% figure was relevant in deciding whether he must provide evidence of his financial capacity to complete that course, and his language ability. The former was not an issue, because he had cancelled that enrolment, and had now enrolled in two courses that were entirely unrelated to Welfare Studies, and was therefore required to demonstrate possession of and access to adequate funds to complete those courses. After disputing that he had been enrolled in Horticulture, the applicant blamed his migration agent in India for having made these and other arrangements unbeknown to him, but was otherwise quite unable to offer a coherent explanation for his erratic academic performance and interests.
21. Turning to the financial requirements of Schedule 5A, the Tribunal invited the applicant under s.359AA of the Act to comment on information that he had been unable to afford the Tribunal’s filing fee, and had sought a fee waiver on that basis. This suggested that his funds were very limited, and certainly well short of the amounts required to undertake the courses that he was now contemplating. He said that his parents were angry when his visa was cancelled, and refused to pay his MRT lodgement fee. However, all was now well, and they were offering support once again. The applicant remarked that he had no financial evidence apart from the documents already submitted to the Department, and did not wish to present any additional material.”
Against these matters, the Tribunal, under the heading Findings and Reasons, went on to say (at paragraph 22 CB148):
“… Having regard to the evidence that he has completed a substantial proportion (75%) of a course (other than a foundation course) that was conducted in English and was leading to a qualification within the Australian Qualifications Framework at the Certificate IV level or higher, the Tribunal is now satisfied that he meets cl.5A404(d)(iii).”
This was, of course, a finding favourable to the applicant and which would reverse the delegate’s view that the applicant did not meet the English language requirement.
The Tribunal went on, at paragraph 23, to say:
“However, cl.572.223(2)(a)(i) requires that the applicants meet all relevant Schedule 5A requirements, and the Tribunal must, as it explicitly indicated to the applicant at the hearing, determine whether, at the time of this decision, the applicant has satisfied the Tribunal that he meets the financial requirements of Schedule 5A405. It must also assess whether he is a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions subject to which the visa is granted and any other relevant matter: cl.572.223(2)(a)(ii). These are two discrete requirements, and the applicant is required to meet both if he is to be granted a subclass 572 visa.”
At paragraph 25 the Tribunal, having referred to the law relating to these matters in terms that have not been the subject of any criticism and which appear to me to be entirely correct, continued:
“Against that background, the applicant has provided no evidence or information that might lead the Tribunal to find that he is a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions subject to which the visa is granted and any other relevant matter. Nor has he satisfactorily responded to adverse information put to him under s.359AA of the Act that suggests he is not in fact such an applicant. The Tribunal is not satisfied that his repeated cancellations of enrolments, failure to complete any course of study since arriving here in 2007, or his multiple and apparently haphazard changes of course focus can be explained away as the consequence of a former agent’s ineptitude, or of incompetence on the part of education providers. There is nothing in any of the applicant’s enrolment history or statements to the Tribunal that satisfies it that he is, as he claims, a genuine student who has been prevented by forces outside his control from consummating his alleged academic aspirations. The Tribunal is therefore not satisfied that the applicant meets cl.572.223(2)(a)(ii), an essential requirement for the grant of the visa, and the application must fail.”
The Tribunal went on, at paragraph 26, to find (as an entirely separate matter) that the applicant failed to meet the requirements in relation to satisfying funding requirements. Having set out some of the matters to which I have already referred, the Tribunal said at paragraph 26:
“… Even if the loan moneys were still available, the amount is manifestly inadequate to meet the applicant’s projected total costs, or even those arising in the first year. When asked about this evidence about his financial situation and resources at the hearing, even after raising concerns as to the implications of his earlier application for a Tribunal fee waiver, the applicant indicated that he had no further evidence to offer. The Tribunal finds that the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and Assessment Level 4 to which he was subject, in relation to the financial requirements of Schedule 5A. Accordingly, the applicant does not meet the requirements of cl.572.223(2)(a)(i).”
The Tribunal went on to dismiss the application.
When the matter came before the Court, the applicant, who was self-represented with the assistance of an interpreter, referred to having enrolled in a number of courses and changed to and from a particular course which he identified as “community service” and said that he had done 85 per cent of the course.
He wanted to make it clear that the assertions made by the Tribunal as to his changes of courses were not true. He also went on, in reply, to surmise whether the Court Book showed the various changes of courses. Counsel for the Minister relied essentially upon the written submissions filed but did take the Court to those parts of the Court Book in which the various records showing the all too numerous changes of course by the applicant were set out.
Against these introductory matters, I will deal with each of the grounds raised in turn. First, the alleged failure of the Tribunal to consider the documents provided to Immigration. I accept the submission of the first respondent that there is nothing to support this contention.
I accept the assertion made at paragraph 20 of the first respondent’s written submissions that the Tribunal expressly mentioned the material provided by the applicant at paragraph 16 (CB 149) of its decision. Put shortly, it is clear that the Tribunal did have proper regard to the materials before it and this ground is not made out.
The second ground is hard to construe, as the first respondent’s written submissions assert. To the extent that the ground asserts, “They had wrong information about my enrolment on their system”, that ground is not, it appears to me, made out on the materials. Furthermore, an error of fact by the Tribunal does not of itself give rise to jurisdictional error.
I further accept the submission made at paragraph 26 of the first respondent’s written submissions that given that the Certificate of enrolment (COE) provided with the visa application did not meet the criterion of cl.572.222 at the time of the Tribunal’s decision on

21 October 2011, it was perfectly proper for the Tribunal to consider the other certificates of enrolment provided by the applicant to the Tribunal on 19 October 2011. This could not in any way give rise to jurisdictional error.
The third complaint made is that the Tribunal failed to provide time to the applicant to provide proof of his financial capacity. As earlier indicated, the Tribunal asserted that the applicant had no further evidence to offer even after the question of his application for fee waiver was raised. An examination of the transcript, which has been annexed to the affidavit of Cabrini Rita Shepherd, affirmed on 10 May 2012, shows that that characterisation of what took place before the Tribunal is correct.
The Tribunal did not fall into error in not giving the applicant time, for which he did not ask or indicate in any way that it might be of any assistance. It was for the applicant to provide the necessary evidence to the Tribunal and this was a task in which he failed. See Shrestha v Minister for Immigration and Citizenship [2008] FCA 1296.
In the end, it is clear that the Tribunal’s conclusion that the applicant was not a person who was genuinely seeking entry to Australia to remain as a student was clearly open to the Tribunal on the materials before it. Indeed, one might think that any other conclusion would have been strange indeed. This was, of course, a fatal bar to the applicant’s application.
Likewise, in the circumstances that emerged before the Tribunal, the Tribunal’s conclusion that the applicant did not satisfy the financial requirements raised by the legislation was equally clearly made out. For all these reasons, the application was devoid of any chance of success and the application to this Court by way of judicial review is equally so.
It therefore follows that no extension of time should be granted as to do so would be futile. Even if an extension were to be granted, the application is, unfortunately for the applicant, devoid of merit. For all these reasons the application is dismissed with costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:

Date: 4 July 2012