Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 391
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 391
File number(s): SYG 2570 of 2019 Judgment of: JUDGE LAING Date of judgment: 19 May 2022 Catchwords: MIGRATION – application to extend time for applying for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant Subclass 573 Higher Education Sector visa – whether the extension of time ought to be granted – whether grounds available to the applicant are reasonably arguable – application dismissed. Legislation: Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 116(1)(b), 140, 189, 198, 476A(3)(a), 477(2)
Migration Regulations 1994 (Cth) cl 573.223(1A)
Cases cited: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491
Singh v Minister for Immigration & Border Protection [2016] FCA 679
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; [2012] 135 ALD 17
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of hearing: 5 May 2022 Place: Sydney Solicitor for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr Sharma, HWL Ebsworth ORDERS
SYG 2570 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAGMOHAN SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
19 MAY 2022
THE COURT ORDERS THAT:
1.The application filed on 4 October 2019 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application, filed on 4 October 2019 (Application), seeking an extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 29 August 2019. The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) cancelling the applicant’s Subclass 573 Higher Education Sector visa (Subclass 573 Visa).
BACKGROUND
The applicant was granted the Subclass 573 Visa on 19 October 2015.
On 14 February 2017, he was sent a notice of intention to consider cancellation of his visa (NOICC) under s 116 of the Migration Act 1958 (Cth) (Act). This was stated to be on the basis that he had not complied with condition 8516, which required him to continue to be a person who would satisfy the criteria for the grant of the visa. The applicant was advised that, according to the Provider Registration and International Student Management Systems (PRISMS), he was not enrolled in a course of study specified for his visa.
The applicant responded to the NOICC through emails sent on 20 February 2017 and 28 February 2017.
On 2 March 2017, the Delegate decided to cancel the applicant’s Subclass 573 Visa.
The applicant applied to the Tribunal for review of the Delegate’s decision on 10 March 2017.
The applicant attended a hearing before the Tribunal on 13 March 2019.
On 29 August 2019, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
Subject to exceptions that are not presently relevant, s 116(1)(b) of the Act provided that “the Minister may cancel a visa if he or she is satisfied that… its holder has not complied with a condition of the visa”.
As noted above, condition 8516 required that the applicant continue to be a person who would satisfy the criteria for the grant of the visa.
As the applicant was not an ‘eligible higher degree student’ within the meaning of cl 573.223(1A) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), he was required to meet cl 573.231:
573.231
If subclause 573.223(1A) does not apply:
(a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and
(b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:
(i) made under regulation 1.40A; and
(ii) in force at the time the application was made.
The relevant instrument made under r 1.40A at the time of application was IMMI 14/015. That instrument specified the following types of courses for the Subclass 573 Visa:
a) Diploma (Higher Education);
b) Advanced Diploma (Higher Education);
c) Bachelor Degree;
d) Graduate Certificate (Higher Education);
e) Graduate Diploma (Higher Education);
f) Associate Degree; and
g) Masters by Coursework.
THE TRIBUNAL’S DECISION
The Tribunal set out the applicable law (at [3]-[10]) as well as the applicant’s submissions that he was not aware that there were conditions attached to his visa and that he had been inadequately advised by his agent (at [11]).
The Tribunal was satisfied that the ground for cancellation under s 116(1)(b) of the Act existed (at [12]). It therefore proceeded to consider whether the visa should be cancelled. In this regard, the Tribunal considered:
a) The purpose of the applicant’s travel to and stay in Australia. The Tribunal considered that the applicant’s history of enrolment represented a significant departure from the purpose for which the visa was granted, namely the intended level of study that was contemplated for the visa. This was given weight in favour of cancellation, as was the fact that the English course he had completed was insufficient to satisfy the English requirements for his intended course. The Tribunal gave the applicant’s apparent satisfaction of the requirements for a Diploma some weight in his favour. However, the Tribunal found that the applicant had no compelling need to remain in Australia, given that he had failed to demonstrate effective compliance with the requirements regarding enrolment (at [14]-[19]).
b) The extent of the applicant’s compliance with his visa conditions. In this regard, the Tribunal observed that information before it indicated that the applicant had not held enrolment in a course of study specified for his visa since 6 April 2016. The applicant only obtained enrolment at the required level on 24 February 2017, after the NOICC had been issued. After cancelation, he did not continue with further studies. This was given weight in favour of cancellation (at [20]-[21]).
c) The degree of hardship that may be caused to the applicant or his family. The Tribunal noted that the applicant had raised no specific instances of hardship in his initial response to the NOICC. However, before the Tribunal he had claimed that if he returned to India without any qualifications he would have “no future”. From this and from the applicant’s references to his father’s employment, the Tribunal understood the applicant to contend that he and his family would not be able to rise above their financial circumstances in India if the visa remained cancelled. The Tribunal accepted that some hardship may be caused to the applicant’s family if the visa was cancelled, which was given some weight (whilst the Tribunal stated this was weight in favour of cancelling the visa, I accept that this was a typographical error and that the balance of the paragraph makes tolerably clear that the weight was given against cancellation) (at [22]-[23]).
d) The applicant’s past behaviour towards the department. The Tribunal accepted that the applicant had been cooperative in providing information when requested and that there was no evidence indicating that he had been uncooperative or had not complied with previous visa conditions. This was found to weigh against cancellation (at [24]).
e) Whether other visas may be cancelled under s 140. The Tribunal found that there were no secondary visa holders or others whose visas would be cancelled as a result of a decision to cancel the applicant’s visa. This was given weight in favour of cancellation (at [25]).
f) The legal consequences of cancellation. The Tribunal observed that a result of cancellation was that the applicant would become an unlawful non-citizen liable to detention under s 189 of the Act and removal under s 198 (if he did not voluntarily depart). He would have limited options regarding further visas by reason of s 48 of the Act and may also be impeded by Public Interest Requirement 4013. These matters were given weight against cancellation. However, the Tribunal considered that the applicant would not necessarily be immediately removed from Australia and that he may apply for a Bridging Visa E to allow him reasonable time to depart. Whilst a failure to depart could result in detention or removal action, this was not an inevitable consequence. The Tribunal found that cancellation would not result in indefinite detention and that there was no evidence regarding any impact on victims of family violence (at [26]-[28]).
g) Any children in Australia whose interests could be affected. The Tribunal found that there were no children whose interests needed to be taken into account (at [30]).
h) Australia’s international obligations, including regarding non-refoulement. The Tribunal found that cancellation would not result in the engagement of Australia’s international obligations. The Tribunal considered that there was no matter or claim before it to suggest that removal, if necessary, would breach Australia’s non-refoulement obligations ([29] and [31]).
By reference to the above, the Tribunal was satisfied that the factors in favour of cancelling the Subclass 573 Visa outweighed the factors against this. Considering “the circumstances as a whole”, the Tribunal concluded that the visa should be cancelled and affirmed the Delegate’s decision (at [33]-[34]).
EXTENSION OF TIME APPLICATION
Relevant principles
The principles regarding an application under s 477(2) of the Act were considered recently in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 (BTI15).
The provision requires the Court “to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice”: BTI15 [40] (Jagot and Halley JJ). Whilst the matters to which regard may be had are not expressly confined by the Act, matters that are usually relevant include the following:
a) the extent of the delay and the explanation for it;
b) any prejudice to the respondent;
c) the impact on the applicant if the time is not extended;
d) the interests of the public at large; and
e) the merits of the substantive application (see BTI15 at [25]-[26] per Logan J).
Delay and explanation
Section 477(2) of the Act required that the application to this Court be made within 35 days of the date of the migration decision. As the Tribunal’s decision was dated 29 August 2019, the application needed to be filed no later than 3 October 2019 in order to be filed within time. The application to this Court was filed on 4 October 2019, one day later.
The explanation given by the applicant for this is provided in his application form under “Grounds of application for extension of time” (errors in original):
Because I am not aware I need to put before 28 days and I think Its shows me before 35 days that why I am not aware from this. Please given me extension Thanks.
At the hearing, the applicant stated from the bar table that he had been delayed the additional day because further documents had been required in support of a hardship application that he needed to submit to the Registry.
However, I accept the Minister’s submission that ignorance of the requirements for an application is generally not a satisfactory explanation: SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; [2012] 135 ALD 17 at [38]. Therefore, I would not have considered this explanation to be entirely satisfactory even if it had been supported by affidavit evidence. That said, it may also be accepted that the length of delay is very limited in the present case.
Prejudice, the public interest and impact upon the applicant
I do not place significant weight upon the issue of prejudice in this case in the absence of any specific prejudice (other than costs) being identified by the Minister.
There is a public interest in ensuring that decisions of the executive are made lawfully. Relevant to this will be the merits of the substantive grounds relied upon, which are considered further below. It has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15]-[17].
As to the impact upon the applicant, if the extension of time is refused then the Tribunal’s decision will stand and his visa will remain cancelled. No appeal would lie to the Federal Court of Australia pursuant to s 476A(3)(a) of the Act although an application to that Court may be made under s 39B of the Judiciary Act 1903 (Cth): see BTI15 at [4] per Logan J.
Merits of proposed grounds
The cases make clear that for the purposes of an extension of time application, the Court is concerned with whether the grounds available to the applicant are reasonably arguable. This assessment is to be undertaken at “a reasonably impressionistic level”: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62]-[63].
All that is stated in the Application under the heading “Grounds of application” is the following:
I was studying full time when my visa got cancelled and I wasn’t notified that I’m breaching my visa condition.
In an affidavit submitted with his application, the applicant further stated:
I came to Australia on student visa on 30 Oct 2015 in AIH College in 2015. I was doing well in my studies. So, I changed my majors through migration agents to Sydney College. I was clueless that I’m breaching any condition because it was handle by professional agent. I was studying sincerely and full time then I got notice from DIBP that I breached my student visa condition. But I was still studying and then AAT also affirms cancellation. Its going to effect my whole future if this result of AAT stays. Please look this matter and review decision again. Thanks.
The matters raised by the applicant do not identify any jurisdictional error in the process or the decision of the Tribunal. As explained above, the applicant was required to “continue” his enrolment in a course that was capable of satisfying the criteria for the visa after the visa had been granted (see Singh v Minister for Immigration & Border Protection [2016] FCA 679 at [37]-[38]). He did not do so, in breach of condition 8516. There was no obligation on the Minister to notify the applicant that he was in breach of his visa conditions and to give him the opportunity to rectify the breach prior to issuing a NOICC. Whilst the applicant may well have misunderstood his visa conditions, and may have not received advice in this regard from those assisting him, these were not matters that prevented him from breaching condition 8516. Moreover, these claims on the part of the applicant were considered by the Tribunal in determining whether or not to affirm the Delegate’s decision (see [11] and [15] of the Tribunal’s decision).
At the hearing of this matter, the scope and limitations of the Court’s powers in contrast to those of the Tribunal were discussed with the applicant. It was also confirmed that the applicant was in possession of the Court Book and other relevant documents, and that he had received the Minister’s written submissions.
At the hearing, the applicant further explained that the cancellation will affect his whole future. He stated that he did not make any mistake intentionally. He conveyed that he had not been aware of the visa requirements and that those assisting him had not adequately explained the requirements to him.
As will be apparent from the above, the matters raised by the applicant sought for the Court to revisit the merits of the Tribunal’s decision. However, as I endeavoured to explain to the applicant at the hearing, this is beyond the scope of the Court’s powers on judicial review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
CONCLUSION
For the above reasons, I consider it appropriate to dismiss the application.
I will hear the parties in relation to costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Laing. Associate:
Dated: 19 May 2022
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