Singh v Minister for Immigration and Citizenship

The Review Proceeding in the Tribunal 5 On 2 March 2012, the appellant applied to the Tribunal for review of the delegate's decision. 6 On 5 July 2012, the Tribunal sent to the appellant an Invitation to Appear before the Tribunal on 27 July 2012. The appellant was requested to return to the Tribunal a Response to Hearing Invitation. In the Tribunal's Invitation to Appear, the appellant was specifically asked to provide the following evidence at least two days before the hearing, namely: A confirmation of enrolment showing that you are enrolled in, and undertaking an acceptable course of study. 7 The appellant forwarded his Response to Hearing Invitation on 25 July 2012. In that document, he said that he would take part in the hearing on 27 July 2012. He did not ask for any deferral of that hearing nor did he raise any objection to proceeding on that day. He did not ask for additional time in order to allow him to procure the necessary CoE. He did, however, forward with that Response to Hearing Invitation a copy of CoE No 4DF78690. That CoE was the CoE he had relied upon in his visa application in December 2011. As I have already mentioned, it had been cancelled by February 2012. The appellant also sent with his Response to Hearing Invitation a copy of a medical certificate dated 24 January 2012 in which it was suggested that he had been unable to attend school in the period between 24 January 2012 and 15 February 2012 inclusive because of illness. 8 The Tribunal conducted a hearing of the appellant's review application on 27 July 2012 as it had planned to do. The appellant gave evidence before the Tribunal. The material placed before the Tribunal by the appellant is described in the Tribunal's Statement of Decision and Reasons (the Tribunal's Reasons) dated 27 July 2012. Those Reasons were provided to the appellant on 30 July 2012. 9 In the Tribunal's Reasons, after referring to reg 571.222 of the Regulations and to certain definitional matters, the Tribunal dealt with the claims and evidence which the appellant had made before it. The Tribunal recorded the terms of the decision by the delegate and the fact that the appellant had made his application for review at the time and in the manner which I have outlined above. 10 At [12]-[20] of its Reasons, the Tribunal described what had taken place at the hearing before it on 27 July 2012. At [13]-[20] of its Reasons, the Tribunal said: 13. During the hearing the Tribunal explained to the applicant the reasons for the department's decision and put to him that it has before it no evidence that there is a current CoE relating to the applicant undertaking a course of study in an acceptable course. The Tribunal explained that unless the Tribunal has a CoE relating to the applicant undertaking a course of study in an acceptable course at the time of decision, it will have no option but to find that he does not meet an essential criteria grant of these are applied for. The Tribunal invited the applicant's comments in relation to the above, and explored with him the steps he has taken to obtain a CoE and other matters detailed below. A summary of the applicant's oral evidence to the Tribunal follows. 14. The applicant commented that when he applied for the visa the subject of this review he provided a CoE as well as medicals and evidence of funds from India. The school term commenced on 27 January 2012, however, three days prior he became sick and could not attend his school. When he felt better he phoned the school and told them he was ill. He was then informed by the school that they had already cancelled his CoE. They did not send him any warning letters. He told them that his visa is still being processed and ask if they could issue another CoE. However, he was asked to pay the fees again that his visa had been refused by then so he thought he would just apply to the Tribunal. 15. When asked how he has been spending his time since his most recent CoE was cancelled, he said that he was living in Sydney but moved to live with a friend in Canberra, this friend being from his hometown in India. He also works two or three days a week. When asked what enquiries and steps he has been taking in regards to his studies in Australia, he responded that he had paid $14-$15,000 to Uni world College when he came to Australia from India in around 2009. However, due to the negligence of that school, his visa was cancelled. That decision was set aside by the Tribunal in around 2011. He was told he should return to his college as soon as possible, however the school had already shut down and the premises had signs up indicating that it was for lease. He went to the department and asked what he should do as his school had shut down, and was given a form through which he could either claim a refund of his fees so he could get readmission to another course, or obtain confirmation of the extent of his studies to date. However none of these things eventuated and he did not obtain a refund or certification of studies. It was then that he sought admission to ANC High School, obtaining the CoE that he submitted at the time of lodging his visa application the subject of this review. 16. In relation to his attempts to obtain a current CoE he offered that he wants to continue studying and will get a further CoE once he gets his student visa. Tribunal put to him that it is a legal requirement for grant of the visa he has applied for that valid CoE is provided and in effect at the time of decision, and without that document the visa applied for cannot be granted. He responded that he will then try to get CoE as soon as possible. 17. The Tribunal asked whether, for the student visa on which he entered Australia, he had to obtain a CoE before his visa was granted. He responded that he did. The Tribunal put to him that this suggests he would be aware that a CoE should be obtained before the visa can be granted and asked whether he can read and understand English. He responded that he can. He also gave evidence that he was represented by a lawyer in respect of a prior student visa cancellation which was reviewed by the Tribunal in 2011 and decided in his favour. He explained that he did not approach that lawyer or seek independent immigration advice in relation to the refusal decision the subject of this review because he thought he would just do what his lawyer did previously by himself. The Tribunal put to him that if he can read and understand English, he should have been able to see that the delegate's reasons for refusing to grant his most recent student visa were not necessarily the same as the reasons relevant to the decision he previously sought the Tribunal's review of. It also put to him that the delegate's decision record in respect of the visa application the subject of this review, clearly identifies the reasons for refusal and that a valid CoE must be provided at the time of decision in order for the visa to be granted. It explained that, in such circumstances: it is wondering why he has not yet obtained or provided to the Tribunal a valid CoE; it is concerned as to whether he is a genuine applicant for stay as a student, which is also an essential criteria for grant of the visa applied for. 18. The applicant offered that he will try to provide a CoE at as soon as possible, and that his friend told him that if he is successful at the Tribunal his CoE will be re-activated. He added that, when he previously appeared before the Tribunal he did not have to provide a CoE. 19. In relation to his studies in Australia to date, he gave evidence that he entered Australia in 2009. He completed year 11, but when year 12 commenced the college had closed down. He has not studied since around 2010. When asked what he has been doing since that time he responded that he got the COE to study in 2012 but that was cancelled. When asked what he was doing in the two years between the time he claimed he last studied in 2010, and the date on which his course was scheduled to commence in 2012, he responded that he was waiting for the Tribunal's case regarding his previous cancellation to be finalised, which did not occur until around October 2011. He repeated that he promises to obtain a CoE and asked for additional time to do so. 20. The Tribunal put to him that in the circumstances identified above, in particular: where the delegate's decision record, dated 21 February 2012, clearly identifies the existence of a valid CoE at the time of decision as a necessary requirement for grant of the visa applied for; his failure to provide a valid CoE to date; his failure to seek independent advice or take any demonstrated steps to continue his studies, the Tribunal is not willing to delay finalisation of its decision in anticipation of the applicant providing a valid CoE. It added however, that it has an obligation to consider any information provided to it, if that information is provided before finalisation of the decision. It repeated that it will not, however, delay finalisation of its decision in anticipation of a valid CoE and noted that it will move to finalise its decision as soon as possible. 11 At [21]-[27], the Tribunal stated its findings and reasons. In a nutshell, the Tribunal concluded that the fact that the appellant did not have a current and valid CoE as at 27 July 2012 (the date of the hearing before the Tribunal) was fatal to his application. 12 At [28], the Tribunal said: As the Tribunal has found the applicant does not meet an essential requirement of Schedule 2 for visa subclasses 570, 571, 572, 573, 574 and 575, and as no evidence has been provided on which the Tribunal could be satisfied that the applicant meets the criteria for the remaining Student (Temporary) (Class TU) visa subclasses, the decision under review must be affirmed.

The Proceeding in the Federal Magistrates Court 13 On 27 August 2012, the appellant commenced judicial review proceedings in the Federal Magistrates Court. The appellant sought the issue of the constitutional writs in order to have the Tribunal's decision set aside. The grounds of the application were: 1. The Tribunal failed to exercise its jurisdiction. Particulars: The applicant provided a medical certificate to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of its credit findings. It was an error for the Tribunal to place no weight on the documents without engaging in an intellectual process as the contents of the documents. 14 The appellant filed an affidavit in support of his application in the Federal Magistrates Court but that affidavit did not travel beyond the formal requirements for an affidavit in support of such an application in that Court. 15 At [1]-[16] of his Reasons for Judgment, the Federal Magistrate dealt with the relevant factual background. At [17] and [18] of his Reasons, the Federal Magistrate referred to the grounds of review which I have extracted at [13] above. 16 At [19], the Federal Magistrate observed that the appellant had provided no evidence to support the claims which he was making. 17 At [20], the Federal Magistrate noted that the appellant had provided no submissions, written or oral, to the Court in support of his application. 18 At [21]-[24] of his Reasons, the Federal Magistrate said: 21. In its reasons, the Tribunal makes plain the requirements for Mr Singh to satisfy the regulations under the Migration Act 1958 ("the Act"), and in particular, the eligibility requirements set out in sub-clause 571.222 in Schedule 2 of the Migration Regulations 1994 ("the Regulations"). The Tribunal confirmed that it was essential for his visa that he have a current confirmation/certificate of enrolment. He did not provide it for the hearing before the Tribunal, and has not done so since. The Tribunal noted, at [24] of its reasons, that the Applicant had the relevant certificate at the time of his application, but he did not do so at the time of the hearing. Thus, to repeat: neither before, during, or after the hearing has he provided a confirmation/certificate of enrolment as required by the Regulations under the Act. 22. In particular, I note that clause 571.22 of Schedule 2 of the Regulations refers specifically to (emphasis added) "criteria to be satisfied at time of decision." 23. In relation to Mr Singh's submission that the Tribunal failed properly to consider the material before it, I note that, in the written submissions on behalf of the Minister, there are many cases cited which explain the responsibility of a Tribunal to consider the evidence before it. Respectfully, I accept and adopt the submissions that paragraph 13 and following on that matter. It is sufficient to note that in Minister for Immigration and Multicultural Affairs v Jia Legeng the joint judgment of Gleeson CJ and Gummow J referred, at [105], to the requirement that there be "genuine consideration to the issues raised …." [Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507] 24. In my view, the reasons of the Tribunal make clear that the Tribunal did consider Mr Singh's claim and did so on such material as it had before it. It applied literally the relevant provisions of the Act and the Regulations to the facts presented to it. In my view, the Tribunal could do no more. 19 The Federal Magistrate went on to conclude that, in substance, the appellant was seeking merits review in the Federal Magistrates Court. The Federal Magistrate correctly held that the appellant could not obtain merits review of the Tribunal's decision in the Federal Magistrates Court. 20 The Federal Magistrate dismissed the appellant's application for judicial review.

The Appeal in this Court 21 On 26 February 2013, the appellant filed a Notice of Appeal in this Court seeking to overturn the decision of the Federal Magistrate. In his Notice of Appeal, the appellant relied upon the following grounds of appeal: 1. The FM failed to consider that the Migration Review Tribunal exceeded its jurisdiction in making its decision to affirm the First Respondent's decision. 2. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the MRT. 22 The appellant has appeared before me this morning with the aid of an interpreter. He did not file any written submissions in support of his appeal. The oral submissions that he made this morning were directed to the merits of his visa application and did not come to grips in any way with any relevant matter as far as his appeal is concerned and did not address the grounds upon which he was, in fact, relying. 23 The Minister filed a Written Submission and appeared before me today represented by Counsel. 24 The grounds relied upon by the appellant were not clarified or amplified in any way by way of particulars or by way of submission before me. 25 The first ground does not differ, in any substantial way, from one of the grounds of review raised before the Federal Magistrate. The Federal Magistrate did consider whether the Tribunal had failed to exercise its jurisdiction and rejected the appellant's contention that it had failed to do so. No error in the conclusion reached by the Federal Magistrate has been demonstrated before me. 26 As far as ground 2 is concerned, in my view, the Federal Magistrate gave appropriate consideration to the Reasons for Decision given by the Tribunal. The appellant has not specified the alleged shortcomings of the Federal Magistrate. He has not identified the legal and factual errors made by the Tribunal which the Federal Magistrate failed to consider. When a ground such as ground 2 is raised in this Court, some clear articulation of the complaint by way of particulars and argument is required. Otherwise the ground goes nowhere. I reject ground 2. 27 I should add that the fundamental reasoning which underpinned the decision of the delegate, the decision of the Tribunal and, ultimately, the decision of the Federal Magistrate, namely, that a prerequisite for eligibility in respect of the particular visa sought by the appellant had not been satisfied, was plainly correct. The absence of that prerequisite was and is fatal to the appellant's application. 28 For the above reasons, the appellant has failed to make good either of the grounds of appeal relied upon by him in this Court. 29 The Minister has quite properly raised another matter. It arises because, on one view of the course of the hearing before the Tribunal on 27 July 2012, the appellant had sought an adjournment of the hearing before the Tribunal and that adjournment had been refused, arguably, in circumstances where the Tribunal did not give reasons for refusing that adjournment and arguably in circumstances where the reasoning of the High Court in Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; 297 ALR 225; [2013] HCA 18 might have been engaged. 30 In the present case, the appellant had procured the requisite CoE but that CoE had been cancelled prior to the making of any of the relevant decisions. The appellant was aware of the cancellation of this CoE and of the significance of that cancellation. In particular, in her decision made on 21 February 2012, the delegate made very clear to the appellant that there was a fundamental flaw in his visa application, that is, that he could not produce to the Minister a CoE which was both valid and current. There is no evidence before me, and there was no evidence before the delegate or the Tribunal or the Federal Magistrate, as to what steps, if any, the appellant took after 21 February 2012 to obtain a CoE. True it was that he had a medical certificate that explained his unfitness for school for the three week period ending on 15 February 2012 but there was nothing in any of the material before the decision-makers or the Court below which explained why an up-to-date CoE had not been obtained in the period after 21 February 2012. Nor, as I have mentioned at [7] above, did the appellant make a request in his Response to Hearing Invitation that the Tribunal hearing be adjourned or suggest that something was happening in respect of the CoE which might justify such an adjournment. In particular, at no time prior to the day of the Tribunal hearing did the appellant say that he intended to procure a valid and current CoE. Nor did he ever say that he had already taken steps to procure such a CoE. 31 The Tribunal noted at various places in [16]-[20] of its Reasons that the appellant had indicated that he was proposing to try to get a CoE as soon as possible and, ultimately, that he had asked for additional time to do so. But those matters were in a context, the context being that the appellant had had many months prior to 27 July 2012 during which he could have procured a CoE but had apparently done nothing at all. 32 The facts and matters which I have described at [30]-[31] above demonstrate that the circumstances of this case differ in a material respect from those which were in play in Minister for Immigration and Citizenship v Li and thus form a proper basis for distinguishing that case from the present. In Minister for Immigration and Citizenship v Li, the fundamental preconditions for obtaining the visa which had been claimed by the claimant had been satisfied. However, by the time of the Tribunal hearing, the visa had not been granted. The substance of the matter was that, unless an adjournment was granted, Ms Li would not obtain her visa, even though she had satisfied all of the relevant requirements for the grant of the visa for which she had applied. Such an outcome would have been obviously unjust. In the present case, the appellant had had a significant amount of time within which to procure the necessary CoE. By the time of the Tribunal hearing, not only had he not, in fact, done so, but there was no material before the Tribunal that suggested that, as at 27 July 2012, he was already engaged in attempting to procure such a CoE. There was no evidence that suggested he had taken any action at all directed to procuring the necessary CoE. 33 For those reasons, I do not think that the reasoning of the High Court in Minister for Immigration and Citizenship v Li requires me to conclude that, in the circumstances of this case, the decision by the Tribunal not to allow to the appellant more time to procure the necessary CoE was a jurisdictional error. 34 I should make clear, as well, that the question of the applicability of the decision in Minister for Immigration and Citizenship v Li was a matter raised by the Minister, for the assistance of the Court, and in fairness to the appellant, but was not raised by the appellant in his grounds of appeal or in any submissions which he made to the Court. The substance of the matter is that, notwithstanding that his attention was drawn to the decision, he did not rely upon it. 35 For all of the above reasons, I dismiss the appeal with costs. 36 There will be orders accordingly. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.