Singh v Minister for Immigration and Border Protection

1. The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 The applicant seeks an extension of time to appeal and for leave to appeal from a decision of the Federal Circuit Court of Australia which dismissed an application filed by the applicant in that Court seeking review of the decision of the Migration Review Tribunal to cancel the applicant's Higher Education Sector (Subclass 573) visa. 2 Rule 36.03 of the Federal Court Rules 2011 ("the Federal Court Rules") provides that an appeal from a decision of the Federal Circuit Court must be made within 21 days of the decision. The applicant had until 14 April 2016 to file a notice of appeal from the decision of the Federal Circuit Court which had been made on 31 March 2016. The applicant did not appeal within that time, but on 9 May 2016 applied for an extension of time to file a notice of appeal against the decision of the Federal Circuit Court. The application was 25 days late but the Minister conceded that he would not suffer any prejudice if leave were to be granted. The Minister submitted, however, that leave should not be granted because the delay had not been adequately explained by the applicant and because the applicant had failed to show that there was sufficient doubt about the correctness of the judgment below and to show that substantial injustice would be suffered by the applicant if leave to appeal were refused. 3 The application for an extension of time requires that the Court be satisfied that it is proper to grant the extension which is sought. In deciding whether it is proper to grant the extension of time it is important not to ignore that a period is prescribed within which to make applications. A consideration of whether it is proper to grant the extension will, therefore, require that the applicant provide an adequate reason for the delay: see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91, [19]; Parker v The Queen [2002] FCAFC 133, [6]-[7]. It is also relevant to consider whether the grant of an extension will cause prejudice to the respondent, although an absence of prejudice to the respondent will not be sufficient to warrant the grant of an extension. The merits of a proposed appeal are also relevant to whether an extension should be granted and to whether leave to appeal should be given: see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91, [19]; Parker v The Queen [2002] FCAFC 133, [6]. 4 The applicant filed an affidavit in support of his application and made oral submissions through an interpreter at the hearing. His explanation for the delay in making the application were set out in [4] to [10] of the affidavit as follows: 4. I was present at the hearing. 5. I was self-represented. 6. I could not afford a lawyer to represent me at the hearing. 7. I was not told what I could do about the dismissal. 8. I was not told that I could appeal the dismissal. 9. I did not know what to do after the dismissal. 10. I could not afford to hire a lawyer to advise me. None of these facts adequately explain the applicant's failure to make the application within the time required by the rules. Each of them is a circumstance which the applicant shares with other applicants and do not give particular circumstances which warrant a departure from the requirement that the application was to be made in the time prescribed. The applicant was unrepresented at the hearing of his application but was assisted by an interpreter. The applicant was invited to provide any further explanation for the delay in making his application. The applicant said that his delay had been caused by his inability to pay for the filing fee because his father had been too ill to send him the money needed for the fee but that he had subsequently been informed that he might ask to have his application accepted with a medical certificate about his father's illness. None of this had been in his affidavit in support of his application and none of this was supported by other evidence. However, none of these matters explain the delay. Even accepting the accuracy of each of the matters claimed by the applicant, none of the matters provide an explanation for the delay. There was nothing to show any attempt to comply with the requirement that an application be filed in the prescribed time and that any of the matters he referred to prevented or delayed those attempts. 5 The lack of merit of a proposed appeal, if the extension of time or leave to appeal were to be granted, is another reason to refuse the application for an extension of time and to refuse the grant of leave to appeal. No purpose is served by granting an extension of time to lodge an appeal or to grant leave to appeal which has insufficient prospects of success. The applicant is a citizen of India and entered Australia on 17 November 2013 as the holder of a "Streamline" (Subclass 573) visa. He intended initially to pursue an English language course followed by a diploma leading to a degree. The delegate of the Minister cancelled the applicant's Subclass 573 visa under s 116(1)(a) of the Migration Act 1958 (Cth) ("the Migration Act") because the circumstances which permitted the grant of the visa no longer existed. The applicant had been granted a Subclass 573 visa on the basis that he was an eligible higher education student undertaking a Bachelor's degree. The Commonwealth's Provider Registration and International Student Management System (or PRISMS) revealed, however, that the applicant was not enrolled in a Bachelor's or Master's degree by coursework. The applicant was sent a notice of intention to consider cancellation of his visa and the applicant provided a statement and supporting documents to the delegate. On 9 October 2014 a delegate of the Minister of Immigration made a decision cancelling the applicant's Higher Education Sector (Subclass 573) visa under s 116(1)(a) of the Migration Act. The applicant lodged an appeal to the Migration Review Tribunal on 13 October 2014 which was heard on 2 March 2015. On 11 June 2015 the Tribunal affirmed the delegate's decision to cancel the applicant's visa. On 25 June 2015 the applicant filed an application in the Federal Circuit Court of Australia seeking an order that the decision of the Tribunal or Minister be quashed. 6 The issue for the Court to consider is whether the applicant has shown that there is sufficient doubt about the correctness of the decision of the Federal Circuit Court to warrant review and that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if the extension of time and leave to appeal were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-9. The applicant has not shown either that there is sufficient doubt about the correctness of the decision against him or that he would suffer injustice if the extension of time and leave to appeal were refused. 7 The applicant's affidavit in the application relied upon the following matters in support of the merits of an appeal: 11. The Judge at the Federal Circuit Court failed to give due weight to the cumulative circumstances relating to my health, my experiences at James Cook University and my positive attempts to enroll in a bachelor degree with providers when considering the exercising of power to cancel my Subclass 573 Higher Education Sector visa under Section 116 of the Migration Act. 12. The Judge erred at law as there were not sufficient grounds to conclude that I did not intent to complete business courses either at the vocational or at the higher educational level. 13. I now wish to appeal that dismissal decision. 14. I believe I have good grounds of appeal as contained in my draft notice of appeal attached to my application for leave to appeal and extension of time to make an application for leave to appeal. The application set out three grounds in support of the application. 8 The three grounds relied upon by the applicant in the application were: 1. The Learned Judge erred in law and/or in fact in not adjourning and/or refusing to grant an adjournment of the hearing on 28 October 2015 when taking into account all facts and circumstances such as, but not limited to, that the Applicant was legally unrepresented, Migration law and applications are complex and complicated matters requiring specialised skills, the Applicant is a foreign national and had little or limited understanding of court proceedings in Australia and the Applicant had limited understanding of the English language in so far as it related to court proceedings. 2. The Applicant was not afforded a reasonable opportunity to argue his case before the Court on 28 October 2015 in that the Learned Judge failed to afford the Applicant an opportunity to adequately and/or properly present his case to the Court and/or being unrepresented the Court had an obligation and/or duty to assist the Applicant in presenting his case or adjourning his application to enable him to get assistance to adequately and/or properly present his case to the Court. 3. The Learned Judge erred in law and/or in fact in failing to find that the decision of the Migration Review Tribunal was affected by jurisdictional error and/or that the Migration Review Tribunal had misapplied the Migration Regulations and/or the Migration Act and/or the Migration Review Tribunal had misapplied the applicable test and/or applied the wrong test to ascertain whether the power to cancel the Subclass 573 Higher Education Sector Visa should have been exercised and/or the decision of the Migration Review Tribunal and/or the manner the hearing was conducted by the Migration Review Tribunal was unreasonable in all the circumstances for the following reasons: a. The Migration Review Tribunal and/or the Federal Circuit Court failed to take into account relevant evidence and/or took into account irrelevant evidence when considering whether the power to cancel the visa should have been exercised. b. The Migration Review Tribunal and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it took into account irrelevant matters and/or information and/or evidence and did not take into account matters and/or information and/or evidence as required by law; c. The Migration Review Tribunal and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration to and weight to the evidence presented by the Applicant; d. The Migration Review Tribunal and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it summarily dismissed and discounted the evidence presented by the Applicant; e. The Migration Review Tribunal and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to consider the evidence of the Applicant in totality and cumulatively; f. The Migration Review Tribunal and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to properly and/or adequately investigate and assess the claims of the Applicant; g. The Migration Review Tribunal and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give a and/or a reasonable opportunity to the Applicant to respond to the issues put to him and thereby denied her procedural fairness. The first two grounds in the application stated that her Honour fell into error by refusing to grant an adjournment to the applicant, but there is nothing in the decision of the primary Judge to suggest any error in this regard. Her Honour considered the applicant's request and said at [11]-[12]: 11. […] During the course of the hearing the applicant asked for an adjournment, saying he had not had an opportunity to obtain a lawyer because of his finances and wanted an opportunity to do so. It is a reality that many litigants appear in this Court without legal representation, and certainly it can be difficult for people in that position to present their case. 12. However, the applicant has been aware of the hearing date today since 28 October 2015. There has been ample time for him to obtain legal representation. So in those circumstances I refuse to grant the adjournment, and for the reasons I have given above I dismiss the applicant's application for judicial review. It was open to the Federal Circuit Court to refuse the applicant's request for an adjournment and the applicant has shown no error in principle, or in the application of the applicable principles by her Honour, in refusing to grant the adjournment. Her Honour said at [2]: The applicant filed an application for judicial review on 25 June 2015. The application does not set out any grounds which identify a jurisdictional error by the Tribunal. Rather, they invite the Court to engage in a merits review, which this Court does not have the power to do. On 28 October 2015, Registrar Allaway listed this matter for a show cause hearing before me today, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth). Rule 44.12 deals with show cause hearing. At a show cause hearing a court may, if it is not satisfied that the application has raised an arguable case for relief, dismiss the application. The second ground of appeal fails also to identify any fact, matter or thing which the applicant would have wished to raise which he had been unable to raise by reason of the matter having come on for hearing on the date which had been set for the hearing. 9 The third ground in the application stated that her Honour erred by failing to find error in the Tribunal's decision and that the Tribunal had misapplied the test to cancel his visa. This ground contains seven sub-paragraphs setting out generalised assertions of jurisdictional error without particularising facts, matters or circumstances which would make out the assertions if those facts, matters or circumstances existed or were established. 10 The applicant was invited to make any further submission at the hearing of this application in support of his claim that the Tribunal or the Federal Circuit Court had erred in its decision. The applicant's oral submissions did not add to those in his written application and supporting affidavit. The applicant repeated that his father's illness had been a cause of delay in making his application and that the applicant needed more time. None of the submissions or the other material in the application deal with the fundamental reasons upon which his visa was cancelled. 11 A consideration of the decision of the Migration Review Tribunal reveals none of the jurisdictional errors claimed by the applicant. The Tribunal was entitled on the facts to find that the ground for cancellation in s 116(1)(a) existed and the Tribunal was entitled not to accept the applicant's evidence. The Tribunal found that the applicant did not commence the degree course and that his enrolment in the degree course was cancelled and therefore that the ground for cancellation in s 116(1)(a) of the Migration Act was satisfied. The Tribunal found that the applicant was not a credible witness and rejected his explanations for his lack of academic progress and changes to his enrolments. At [38] the Tribunal said: The tribunal found the applicant to be far from impressive or a credible witness. The tribunal does not accept the applicant's various explanations concerning his lack of academic progress and changes to his enrolments. He claimed not to have had any friends or family in Cairns. The tribunal considers that that fact must have been very obvious to the applicant prior to his arrival in Australia. Again it is simply not apparent to the tribunal that the applicant made appropriate arrangements prior to his arrival in Australia. Taking into account those matters and its concerns regarding the credibility of the applicant's evidence, the tribunal does not accept that he was a victim of his migration agent's poor advice. The tribunal does not accept that the applicant's claims, concerning the failure of a person to pick him up at the airport, are truthful. He has not provided any reasonable account in the tribunal's view as to how the person who supposedly was to begin at did not do so noting he has had substantial amount of time to clarify the issue. The Tribunal considered the exercise of its discretion to cancel the applicant's visa at [17] of the decision record and set out its consideration of the applicant's claims and evidence. In summary, the Tribunal: (i) placed little weight on the applicant's difficulties with arranging accommodation on arrival in Cairns and found that he was unable to provide details about his claimed circumstances in Cairns at [18]-[19]; (ii) did not accept that the applicant was misled by an education agent or that he found himself unwittingly far from family and friends such that he was unable to pursue his studies at [40]; (iii) found that the applicant's claimed difficulties with study in his English language course were due to his lack of effort at [21]-[22], [37]; (iv) found that the applicant had failed to disclose earlier that he had failed to complete his English course due to plagiarism at [25]-[26]; and (v) found that the applicant's Certificate IV in Business and Diploma of Business courses were cancelled for disciplinary reasons and that his enrolment in those courses was not cancelled due to health or skin problems and the applicant was willing to give misleading evidence in this respect at [39]. 12 At [40] the Tribunal said: As set out above the tribunal has also placed no weight on the applicant's claim that he was stuck in Cairns for some time without appropriate accommodation. That evidence appears contrived or manufactured. Nor does the tribunal accept that the applicant was misled by an education agent and as such he found himself unwittingly far from family and friends and in such a context, that he was not able to pursue the business studies. Having not completed the English for academic purposes course the applicant chose to commence the Certificate IV in Business course only to have his enrolment in the course cancelled six months after commencement for disciplinary reasons. He ceased enrolment in the course because he plagiarised other students' work and not because he was without family or friends. The tribunal considers that the reasons for the cancellation of his enrolment in the business courses weigh heavily in favour of cancelling the visa. Further, the applicant's willingness to be misleading in his evidence to the tribunal is of particular concern in regard to his future intentions as a student in Australia. The Tribunal found that the applicant had only enrolled in a Diploma of Management course and an Advanced Diploma of Management course at the Australian Institute of Technical Training in addition to a Bachelor of Business at Stott's Colleges after receiving the notice of intention to consider cancellation of his visa and then only to create the pretence that the applicant still met the requirements for the Subclass 573 visa. At [43] the Tribunal said: As set out above, the Department wrote to the applicant by email of 12 September 2014 enclosing a Notice of Intention to Consider Cancellation of the applicant's student visa. The applicant subsequently provided photocopies of application forms in respect of a Diploma of Management course and an Advanced Diploma of Management course at the Australian Institute of Technical Training in addition to a Bachelor of Business at Stott's Colleges. The photocopies of the two application forms were signed by the applicant and dated 18 July 2014. They were provided to the Department in September 2014. Taking into account its concerns regarding the applicant's credibility the tribunal does not accept that the applicant enrolled in those courses in July 2014. He did not provide evidence of having a confirmation of enrolment from either the Australian Institute of Technical Training or Stott's Colleges at any time prior to the delegate's decision or to the tribunal when such evidence would otherwise ostensibly be available to him. The tribunal considers that the applicant only enrolled in those courses after receiving the Notice from the Department. That is also consistent with the applicant's own evidence that he was enrolled in commercial cookery in hospitality courses and applied for a subclass 572 visa on the basis of those courses. The tribunal concludes that the applicant obtained the confirmations of enrolment in the Diploma of Management course, the Advanced Diploma of Management course and the Bachelor or Business at Stott's College course only in order to artificially demonstrate that he continued to meet the requirements of holding a subclass 573 student visa rather than as a demonstration of any actual intention to undertake and complete those courses. The Tribunal also found that the applicant's history of enrolment reflected an attempt to prolong his stay in Australia rather than being a genuine student. The Tribunal considered that those matters weighed heavily in favour of cancellation of the visa and that the applicant was attempting to take advantage of the streamlined visa process to manipulate the student visa program for an improper purpose. At [44] and [49] the Tribunal said: 44. The tribunal has found the applicant did not intend to complete the business courses either at the vocational or at the higher educational level. Nor is it tribunal satisfied that the applicant now has such intention. The tribunal considers the applicant's history of enrolment reflects a person who is attempting to prolong their stay in Australia rather than person who is a genuine student seeking to progress in his or her studies and obtain useful qualifications for a future career. That consideration weighs strongly in favour of cancelling the visa. […] 49. The circumstances in which the ground of cancellation arose are discussed above. On the basis of the evidence before it the tribunal has concluded that such circumstances indicate the applicant was attempting to take advantage of the streamlined visa processes to arrive in Australia without having any intention to undertake studies at the degree level. It is apparent that he intended to change courses and hoped to obtain a subclass 572 visa on the basis of his enrolment in vocational hospitality and cookery courses. Such circumstances indicate, in the tribunal's view, an attempt to manipulate the student visa program for an improper purpose. That is also a factor weighing considerably toward cancelling the visa. The Tribunal decided that the delegate's decision to cancel the applicant's visa should, therefore, be upheld. 13 The judge of the Federal Circuit Court dismissed the application to review the decision of the Tribunal on the basis that it raised no arguable case. Her Honour found that although the applicant's representative was prevented from giving evidence, the agent had been allowed to make submissions after the hearing but that no further submissions were made. Her Honour noted that the applicant's complaint that other students had been given visas was not a relevant consideration. Her Honour found at [4]-[6]: 4. This is dealt with at paragraph 34 of the Tribunal's decision where the Tribunal member recorded that the applicant's representative attempted to give evidence, claiming that the applicant had forgotten to tell the Tribunal. The Tribunal did not allow the applicant's representative to give that evidence, and there were no further submissions made from the representative or statements received after the hearing. In response to that oral submission, Mr Day for the Minister submits that pursuant to section 362(2)(b) of the Migration Act 1958 (Cth), the Tribunal is not obliged to obtain evidence from a person at the applicant's request, and that it is beyond the scope of the role of a representative to give evidence. 5. The role of the representative is to advise the applicant and to make submissions. It was open to the applicant's representative to ask for the matter to be adjourned briefly so that he could speak to his client in the absence of the tribunal member before the hearing resuming. And it was also open to the applicant's representative to seek to file further written submissions after the hearing. There was no suggestion that the applicant's representative took either of those options. In those circumstances, that does not establish any jurisdictional error on the part of the Tribunal. 6. The applicant also complains that other students in his situation were granted a visa but he was not. As I explained to him during the course of the hearing, the situation of other students, which is unknown, is not relevant. The only issue for the Tribunal to determine is the applicant's own application for a visa and his own circumstances, not those of others. The same applies to the Court. The respondent has filed written submissions which summarise the background of the issues before the Tribunal, and I do not propose to repeat those in any great detail. No error, or doubt, was shown about any of these reasons by her Honour or in her Honour's decision. 14 Accordingly, the application will be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.