Singh v Minister for Immigration and Border Protection

[2015] FCA 132

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2015] FCA 132

Citation:	Singh v Minister for Immigration and Border Protection [2015] FCA 132
Appeal from:	Singh v Minister for Immigration & Anor [2014] FCCA  2551
Parties:	HARKAMAL JIT SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number(s):	NSD 1134 of 2014
Judge(s):	SIOPIS J
Date of judgment:	27 February 2015
Date of hearing:	23 February 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	26
Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the First Respondent:	Mr D McLaren
Solicitor for the First Respondent:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1134 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

HARKAMAL JIT SINGH
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	27 FEBRUARY 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1134 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

HARKAMAL JIT SINGH
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	27 FEBRUARY 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a judge of the Federal Circuit Court of Australia delivered on 17 October 2014, dismissing the appellant’s application for judicial review of a decision of the Migration Review Tribunal (the Tribunal).

2. The Tribunal affirmed the decision of a delegate of the first respondent not to grant the appellant a Student (Temporary) (Class TU) visa.  The appellant is a citizen of India who on 30 March 2012, lodged an onshore application with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) for a student visa.

3. The appellant previously held a student visa which was granted on 19 April 2011.  The appellant was enrolled at the Australian College of Vocational Studies from 24 January 2011 but his enrolment was cancelled on 30 April 2011.  He then commenced study at MIS Global Technologies on 12 March 2012.  The gap in enrolment in a course of study was approximately ten and a half months.  The appellant then applied for his second student visa on 30 March 2012.

4. The appellant’s application for the second student visa was refused by the delegate on the basis that the appellant did not satisfy cl 572.235 in Sch 2 of the Migrations Regulations 1994 (Cth) that required the appellant to have complied with the conditions of his last substantive visa and subsequent bridging visa.  The delegate was not satisfied that the appellant had complied with condition 8516 of his previous student visa that required him to be enrolled, or the subject of a current offer of enrolment in a course of study, because of the appellant’s ten and a half month gap between enrolments.

   THE TRIBUNAL

5. The appellant sought review of the delegate’s decision before the Tribunal.  Before the Tribunal, the appellant gave oral evidence and relied upon a number of documents to support his application.

6. The appellant said that the long gap between enrolments was due to his father having passed away and his mother being sick.  The appellant also said he experienced mental trauma and was unable to study.

7. The appellant also claimed that he was not aware of the grant of the first student visa until September 2011 and that he had been worried about that.

8. The Tribunal found that there was no medical evidence to suggest that the appellant was affected by a medical or psychological condition that prevented him from enrolling in a course of study for a period of ten and a half months.  The Tribunal accepted that the appellant’s mother had kidney problems between April and October 2011 and that the appellant was worried about the well-being of his family.  However, the Tribunal did not accept that this would have prevented the appellant from studying.  The appellant had not provided any evidence to demonstrate that he was affected by a condition that prevented him from studying.

9. The Tribunal did not accept the appellant’s claim that his first student visa was not granted until September 2011 as there was no evidence to support such a claim and the appellant’s representative had agreed that the visa was granted on 19 April 2011.  The Tribunal came to the view that the appellant was aware that he had to maintain his enrolment in a course of study as a condition of his student visa, but he failed to do so, deliberately flouting the visa conditions.  The Tribunal affirmed the decision of the delegate to refuse the appellant’s second student visa application.

   THE FEDERAL CIRCUIT COURT

10. The appellant brought an application for judicial review of the decision of the Tribunal to the Federal Circuit Court.  The appellant complained, in essence, that the Tribunal had failed to take into account the health issues affecting him and his family in coming to its decision.

11. On 17 October 2014, the Federal Circuit Court dismissed the appellant’s application for judicial review.  The Federal Circuit Court found that the Tribunal had applied the correct test and had taken into account all of the relevant circumstances.  In particular, the primary judge found that the Tribunal had addressed all of the health issues which the appellant had raised.

12. The primary judge also observed that the appellant had submitted orally that he had been confused at the Tribunal hearing and was under stress arising from his father’s death, and this had caused him to claim mistakenly that he had received his first student visa late.  The primary judge found that, insofar as, by this submission, the appellant sought to suggest he had not received a proper hearing, the primary judge rejected that contention on the basis that there was no evidence to support a finding that the appellant was unfit to take part in the Tribunal hearing.

    THE APPEAL

13. On 5 November 2014, the appellant filed a notice of appeal to this Court.

14. The appellant has set out one ground of appeal in his notice of appeal:

    I would like to beg from court some more time so that I can arrange lawyer.  On the hearing day, I was mentally disturb so I could not present myself during the decision time.

15. At the commencement of the hearing before this Court, the appellant applied for a two week adjournment so that he could obtain legal advice.

16. I asked the appellant to identify what he said was the error made by the Federal Circuit Court.  The appellant said that there was no error.  However, he said that he had not expressed himself well before the Federal Circuit Court because he was suffering from stress.

17. I asked the counsel for the first respondent to make submissions on the merits of the appeal, and gave the appellant an opportunity to respond to the first respondent’s submissions.  The appellant responded by saying that he needed more time to get money together to find a lawyer.

18. As mentioned, the Federal Circuit Court decision was made on 17 October 2014.  The appellant’s notice of appeal was filed on 5 November 2014.  There was no evidence before the Court that the appellant had made any effort between the decision of the Federal Circuit Court and this hearing to find legal representation.

19. Further, there was no evidence before this Court that the appellant had been suffering any form of disability which prevented him from representing himself before the Federal Circuit Court, let alone such a disability as would have vitiated the lawfulness of the hearing before the Federal Circuit Court.

20. Further, I asked the appellant what he would have said in support of his case before the Federal Circuit Court, which he had not said at the time.  In his response, the appellant did not identify any additional argument that he would have made before the Federal Circuit Court.

21. I reject the appellant’s claim for an adjournment of the hearing before this Court.  This is because the appellant has had sufficient time to arrange for representation, and also because, as appears below, there is no utility in granting such an adjournment.

22. I also reject the appellant’s only discernible ground of appeal, namely, his unfitness at the hearing before the Federal Circuit Court, on the basis of the absence of evidence that he suffered from any disabling condition which affected the lawfulness of the hearing before the Federal Circuit Court.

23. Further, and in any event, I have reviewed the decision of the Federal Circuit Court and I am satisfied that the primary judge did not err in finding that the decision of the Tribunal was not affected by jurisdictional error.

24. The primary judge recited the matters which the appellant had relied upon before the Tribunal to explain his failure to attend a course of study as an enrolled student for approximately ten and a half months.  The primary judge observed that the Tribunal’s finding that those matters had not prevented the appellant from enrolling in a course of study for the time in question, was on the material before the Tribunal, open to it.  The primary judge did not err in coming to this view.

25. Nor did the primary judge err in rejecting the appellant’s implicit contention made in his oral submissions before the Federal Circuit Court, that he had not had a meaningful opportunity to give evidence and present arguments before the Tribunal, on the basis that there was no evidence to support any contention that he was unfit to take part in the Tribunal hearing.

26. It follows that the appeal is dismissed with costs.

I certify that the preceding twenty‑six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        27 February 2015