Singh v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an application pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) for an extension of time within which to file a notice of appeal. The applicant seeks to appeal from orders made by the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia): Singh v Minister for Immigration and Anor [2013] FMCA 216. The orders of that Court were made on 3 April 2013. An appeal from those orders needed to be filed on or before 25 April 2013 (r 36.03). The applicant's application for an extension of time was filed on 1 May 2013. Therefore, it is out of time by about six days. 2 The first respondent opposes the applicant's application for an extension of time. He does so on two grounds. First, he contends that the applicant has not provided any or any adequate explanation for his delay in seeking to appeal from the orders made by the Federal Magistrates Court. Secondly, and in any event, he contends that the proposed appeal to this Court has no prospect of success and the application for an extension of time should be refused on that ground. 3 The history of the matter is as follows. The applicant is a citizen of India who arrived in Australia on 1 May 2008 as the holder of a Student (Temporary) (Class TU) subclass 573 Higher Education Sector Visa which was valid until 4 April 2011. On the latter date, he made an application to the first respondent for the grant of a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) ("the Act"). On 8 July 2011 a delegate of the first respondent refused his application. The delegate refused the application 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 Clause 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) ("the Regulations"). On 22 July 2011 the applicant applied to the Migration Review Tribunal ("the Tribunal") for a review of that decision. 4 A Student (Temporary) (Class TU) visa has a number of subclasses (Schedule 1, Item 1222). The subclass relevant to the applicant was subclass 572 which is "Vocational Education and Training Sector". 5 The criteria for the grant of a subclass 572 visa are set out in clause 572 of Schedule 2 to the Regulations. The issue in the review before the Tribunal was whether the applicant met the criterion in Clause 572.223 of Schedule 2 and in particular, subclause 572.223(2)(a)(ii) which, at the relevant time, provided as follows: (2) An applicant meets the requirements of this subclause if: (a) … (i) … (ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to: (A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and (B) any other relevant matter; or … 6 The Tribunal had before it the department's file relating to the applicant. 7 The applicant was invited to a hearing of the Tribunal, and before that hearing was held, he provided to the Tribunal two certificates of enrolment in a Certificate IV in Business and a Diploma of Management, certified copies of Punjab School Education Board certificates and records of progress in the applicant's Diploma of Community Welfare course, and other documents. The hearing before the Tribunal was held on 2 August 2012. The applicant told the Tribunal that he had arrived as the holder of a student visa in April 2008. The applicant said that he had wanted to achieve a qualification in community welfare. He had not completed the course, and he told the Tribunal that he did not attend any lessons after June 2010. He told the Tribunal that he was not permitted to undertake practical field work because the college considered he had not completed course work. He told the Tribunal that he approached the college in 2011 and was again given this information. He maintained, however, that he had completed his assignments. The Tribunal asked the applicant why there had been such a long time since he had last studied in Australia. The applicant said again that he had been waiting for a placement in his course, but it had been refused. The Tribunal asked the applicant about his current enrolment in a business management course. The applicant agreed that he had enrolled in the course the previous day. The Tribunal explained to the applicant that there was a real issue in its mind as to whether it could conclude that he was a genuine applicant for entry and stay in Australia as a student. 8 In its reasons for decision the Tribunal expressed its conclusions in the following terms: Having considered the applicants' (sic) response to the concerns raised with him at hearing, arising from his evidence, the Tribunal finds that there are relevant matters before it that lead it not to be satisfied that the applicant is a genuine applicant for entry and stay as a student. The Tribunal reaches this conclusion after having regard to, and notwithstanding, the applicant's stated intention to comply with any conditions subject to which the visa is granted. On the basis of the above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student within the terms of cl.572.223(2)(a)(ii)(B). 9 The applicant was unrepresented before the Federal Magistrates Court as he was before this Court. He had the assistance of an interpreter in both courts. 10 In his reasons the Federal Magistrate noted that on 16 November 2012 the applicant swore an affidavit and filed it in the Court. At the hearing, the applicant did not say to the Court whether or not he wished to rely on the affidavit. The Federal Magistrate said that he had read the affidavit and had come to the conclusion that other than the Tribunal decision record, all other annexures were not relevant and were therefore inadmissible. He described the other annexures as follows (at [6]): • A statement from Cambridge International College Australia, being a Statement of Academic Results together with certain cover sheets and feedback forms for assessments in the course Diploma of Community Welfare Work; • Two Statutory Declarations of individuals who the applicant says faced record keeping problems from College; • Fee receipts; • Enrolment details of the applicant in courses of study at Derbin International College Pty Ltd; and • Tax Invoice from Australian Health Management in the sum of $476.05. 11 In his reasons, the Federal Magistrate noted that when the applicant was before the Tribunal he was given an opportunity to provide whatever evidence he wished. The Federal Magistrate said that the applicant declined to provide the information now contained in his affidavit at that time. In those circumstances, the Federal Magistrate decided that he would not allow the applicant's affidavit to be used at the hearing. 12 The Federal Magistrate outlined the history of the matter and the findings of the Tribunal. He referred to the submissions of the respondent. He noted that the decision of the Tribunal was a privative clause decision as defined in s 474 of the Act. He noted that in the circumstances, the Court could only review a decision if it could be shown that the decision was tainted by jurisdictional error. The Federal Magistrate concluded that the applicant had failed to establish that the Tribunal had committed a jurisdictional error. 13 At the hearing before this Court, the applicant said that he had gone to the registry of the Court and been told that the period within which he could appeal was 28 days. He said that that was the reason he had not taken any steps within the period of 21 days after the orders were made by the Federal Magistrates Court. 14 As he is required to do by r 36.05, the applicant has filed a draft notice of appeal. The grounds of appeal in that document are as follows: 1. I have enrolled in diploma of business management, which I have completed more than 50%. and only 4 months are left of the diploma. moreover, I wish to study advance diploma in business management after completing diploma of business management. I want to make appeal to court that let me finish my study. while my whole career depends. In evidence, i am providing my assessments records $ attendance record from college. I urge before the court to grant my applications of visa. 2. I have provided evidence that the Cambridge international college was having problem with record keeping. as i am victim of record keeping. i tried to explain to the tribunal and to court that i was innocent the whole situation happened due to Cambridge record error. They just cancelled my COE without given any warning. and after I paid my fees which i have in my records and all situations turned to opposite. 3. As paragraph 30 of judgement indicate about not engaging with the colleges but I have record which clears that I was regular visiting college in order to join field placements which was requirement of the course. but college didn't resolved the issue and I end up risking everything. I can fulfil all requirement of student visa if granted. 15 The focus of the respondent's submissions on the applicant's application for an extension of time was on two of the relevant factors (Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349), namely, the explanation for the delay and the merits of the proposed appeal. There is no prejudice to the first respondent or any third party if an extension of time is granted and there are no public interest considerations which weigh against the grant of an extension of time. The extension of time required is relatively insubstantial. 16 As far as the explanation for the delay is concerned, the applicant relies on what he states he was told by registry staff. It is difficult to test the truthfulness of his account as the staff member was not identified. I am prepared to assume that the applicant has an adequate explanation for the delay, partly because the delay is relatively short and partly because I am able to decide the case on the other ground. 17 As far as the merits of the appeal are concerned, it is not a matter of the Court determining the appeal at this stage. Rather, an extension of time will be refused if the proposed appeal is obviously hopeless or devoid of merit. In my opinion, this proposed appeal fits into that category. 18 The Federal Magistrate held that the applicant could only succeed before him if he established that the Tribunal committed a jurisdictional error. That is clearly correct. 19 At the risk of oversimplifying the Tribunal's reasoning, it was, in essence, that it could not be satisfied that the applicant was a genuine applicant for entry and stay in Australia as a student having regard to his failure to attend any lessons after June 2010 and the fact that he had only enrolled in his present course the previous day. The applicant's response to those provisional views was to the effect that he had paid partial fees towards his education in 2010 in order to maintain his place in that course, the course had not been offered by the college after 2011 and that he had approached other colleges regarding enrolment in a Diploma of Community Welfare. That response was insufficient to dissuade the Tribunal from reaching the conclusions summarised above (at [8]). 20 The Federal Magistrate held that the applicant had not shown jurisdictional error on the part of the Tribunal and in my opinion, subject to a consideration of the proposed grounds of appeal, he was correct to do so. 21 I turn to the proposed grounds of appeal which are set out above (at [14]). 22 The first proposed ground of appeal has no prospects of success. It seems to deal with matters which post-date the Tribunal's decision and it does not identify an arguable case of error on the part of the Federal Magistrate. 23 The second proposed ground appears to be that as to the applicant's enrolment in the course of Community Welfare, the Cambridge International College cancelled his enrolment incorrectly and after he had paid tuition fees. As I have said, the applicant sought to put an affidavit before the Federal Magistrate to establish this contention. The Federal Magistrate refused to receive the affidavit into evidence. He said (at [6]): When he was before the Tribunal the applicant was given an opportunity to provide what ever evidence he wished. He declined to provide the information now contained in his affidavit at that time. In all of the circumstances, it is not appropriate that I allow this affidavit to be used in this hearing. 24 I have read the affidavit and annexures carefully. I do not think the Federal Magistrate erred in declining to receive the affidavit. There is nothing to suggest that the applicant was not given a full and proper opportunity to present his case to the Tribunal. 25 The third proposed ground of appeal is that the applicant asserts that he has "records" which show that he was regularly visiting his college to join field placements. The Tribunal said that the applicant had approached the college in 2011 and if this is the evidence to which the applicant refers then the proposed ground does not raise an arguable case of jurisdictional error. If the reference is to new evidence then there is no indication as to how, in accordance with established principle, this Court could take the evidence into account at this stage. 26 I do not think the applicant's proposed appeal has any prospect of success and for that reason, I refuse the application for an extension of time 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 Besanko.