FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Citizenship [2013] FCA 199

THE COURT ORDERS THAT:

1.    The appeal be treated as an application for leave to appeal.

2.    Leave to appeal is refused.

3.    The appellant pay to the first respondent the costs of the application.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    This is an appeal from a decision of the Federal Magistrates Court dismissing an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal).

2    The Tribunal had affirmed the decision of the delegate of the Minister to cancel the Appellant’s Subclass 572 Vocational Education and Training Sector visa (the visa). Subclass 572 is a subclass of the Student (Temporary) (Class TU) visa class.

3    The visa was cancelled because the appellant failed to comply with a condition of the visa, namely condition 8202. Condition 8202 relevantly required the appellant to remain enrolled in a registered course.

4    The appellant is a citizen of India. He was granted the visa on 3 November 2010. He enrolled in a registered course, namely a Diploma of Information Technology course (the IT course) with the education provider Universal Network of Infotech. On 28 March 2011, the education provider cancelled the appellant’s enrolment in the IT course.

5    The appellant enrolled in another registered course, namely a horticulture course with the education provider Australian Adelaide International College (AAIC), with effect from 1 June 2011. Between 28 March 2011 and 1 June 2011, the appellant was not enrolled in any registered course.

6    On 23 June 2011, the Minister’s delegate made a decision to cancel the visa because he had not remained enrolled in a registered course.

7    The appellant then applied to the Tribunal for review of the delegate’s decision. On 27 February 2012, the Tribunal affirmed the decision to cancel the visa.

RELEVANT PROVISIONS OF LEGISLATION AND REGULATIONS

8    Before addressing the Tribunal’s reasons for its decision, it is convenient to refer to the relevant provisions.

9    Section 116 of the Migration Act 1958 (Cth) (the Act) confers on the Minister both a power and a duty to cancel a visa in certain circumstances. As relevant to the present application, s 116 provides:

(1)    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

…

(b)    its holder has not complied with a condition of the visa;

…

10    The relevant “prescribed circumstances” in relation to a Student (Temporary) (Class TU) visa are prescribed by reg 2.43(2) of the Migration Regulations 1994 (Cth) (the Regulations):

(2)    For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

…

(b)    in the case of a Student (Temporary) (Class TU) visa:

…

(ii)    that the Minister is satisfied that:

(A)    the visa holder has not complied with condition 8202; and

(B)    the non-compliance was not due to exceptional circumstances beyond the visas holder’s control.

(3)    If the minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

(A)    the visa holder has not complied with condition 8202; and

(B)    the non-compliance was not due to exceptional circumstances beyond the visa holder’s control.

11    Condition 8202 appears in item 8202 of Schedule 8 to the Regulations. The applicable form of item 8202 was correctly set out in the reasons of the Tribunal and is as follows:

(1)    The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

(2)    A holder meets the requirements of this subclause if:

(a)    the holder is enrolled in a registered course; or

(b)    in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student – the holder is enrolled in a full-time course of study or training.

(3)    A holder meets the requirements of this subclause if neither of the following applies:

(a)    the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

(i)    section 19 of the Education Services for Overseas Students Act 2000; and

(ii)    standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and training to Overseas Students 2007;

(b)    the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

(i)    section 19 of the Education Services for Overseas Students Act 2000; and

(ii)    standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

(4)    In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa – the holder is enrolled in a full-time course of study or training.

12    Relevantly for present circumstances, it can be seen that condition 8202(2)(a) requires that the appellant must be “enrolled in a registered course”. If he was not, then s 116 of the Act and reg 2.43(2) of the Regulations require the Minister to cancel the visa. In that context, both (A) and (B) of reg 2.43(2)(b)(ii) must exist to the satisfaction of the Minister.

DECISION AND REASONING OF THE TRIBUNAL

13    The Tribunal found that the appellant was not enrolled in a registered course between 28 March 2011 and 1 June 2011 (a period of about nine weeks). It followed that the appellant had not complied with condition 8202.

14    The Tribunal then considered whether it was satisfied that the appellant’s breach of condition 8202 was not due to exceptional circumstances beyond his control, as required by r 2.43(2)(b)(ii)(B) of the Regulations.

15    The Tribunal found that the appellant paid fees to AAIC on 3 May 2011. There was no evidence of earlier contact between the appellant and AAIC. There was, therefore, a period of some five weeks during which the appellant was not enrolled in, and had made no attempts to enrol, in any registered course.

16    Before the Tribunal, the appellant relied upon two circumstances as constituting “exceptional circumstances beyond [his] control”.

17    First he claimed that his mother had fallen on 8 April 2011 and hit her head and was consequently hospitalised for 1.5 to 2 months. The Tribunal did not accept that claim, for a combination of reasons, including that the appellant had not raised it in his interview with the Minister’s delegate; that it was inherently unlikely that his mother was hospitalised for up to two months due to falling and hitting her head and, despite the Tribunal raising this concern with the appellant, no explanation had been provided; and that the medical reports provided were from a doctor specialising in gynaecology and “sonology” and, despite the Tribunal raising its concerns about this with the appellant, no explanation was provided for that apparent oddity when it would have been easy enough for the appellant to provide some supplementary material to explain it.

18    Secondly, the appellant claimed that his sister had died on 2 May 2011. The Tribunal accepted that that had unfortunately occurred, but did not consider that that could explain the appellant’s failure to enrol in a new course in the period between 28 March 2011 and 2 May 2011. That is obvious enough as not to require further comment. Further, the Tribunal found that the death of the appellant’s sister did not lead to his non-compliance with condition 8202 in any event.

19    The Tribunal was satisfied that it was within the appellant’s power to have sought enrolment in a new approved course or to have taken steps earlier to secure such an enrolment between leaving the IT course on 28 March 2011, when his enrolment was cancelled, and 1 June 2011.

FEDERAL MAGISTRATES COURT

20    The orders that were sought in the application for judicial review in the Federal Magistrates Court were sparsely expressed as follows:

1.    I arrived in Australia on 19 march 2008 with student visa subclass 572 then on 20 May 2011.

2.    Then I apply to MRT for review of that decision, on 01/07/2011 when I went for hearing to MRT I provide all my new Coe details and explain them my condition.

3.    I think the MRT Tribunal and department of immigration did not look my situation my breach of condition 8202 was due to exceptional circumstance.

21    It is clear that, on their face, those assertions do not include any allegation of jurisdictional error. It appears that the appellant intended to assert that the Tribunal erred in holding that his breach of condition 8202 was not due to exceptional circumstances beyond his control. It is nevertheless not at all clear how that finding of the Tribunal acquired under reg 2.43(2)(b)(ii)(B) was attacked for jurisdictional error rather than simply as a wrong conclusion of fact. It is not uncommon for a person in the appellant’s position not to understand the difference, nor to appreciate the confined circumstances in which the Federal Magistrates Court can set aside a Tribunal decision.

22    The Federal Magistrate dismissed the application with costs. The record of the Federal Magistrates Court indicates that its orders were made “UPON NOTING THAT the applicant’s name was called and he did not appear”. The Court gave no further reasons for its decision. That Court sought no submissions at the hearing in relation to the merits of the application for judicial review (although the first respondent had filed written submissions in advance of the hearing).

consideration

23    In my view, the Court did not dismiss the application on its merits but exercised the powers conferred by r 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth). That is, it dismissed the proceeding because the appellant (then applicant) did not attend. Such a decision is an interlocutory decision: NAOU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 406. It follows that the order dismissing the proceedings was an interlocutory judgment and leave to appeal from the decision is required.

24    Consequently, in my view, the appellant first requires leave to appeal from the decision of the Federal Magistrate. I propose to treat his present “appeal” as an application for leave to appeal, having regard to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

25    The Court has a general discretion to consider whether leave to appeal should be granted. As a general proposition, leave should not be granted unless the decision sought to be appealed from is attended with sufficient doubt to warrant its reconsideration, and substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

26    The sole “ground of appeal” in the Notice of Appeal filed in this Court reads as follows: “For some health problem that day I could not attend meeting”.

27    Obviously the ground discloses no error on the part of the Federal Magistrate. There is no evidence to suggest that the appellant informed the Court prior to the hearing that he would be unable to attend, or that he attempted to do so. Indeed, there is no evidence now to explain why he did not attend. It is not reasonably arguable that the Federal Magistrate’s discretion to dismiss the application by reason of the appellant’s non-attendance miscarried.

28    The “orders sought” in the Notice of Appeal are as follows:

I want that immigration or minister grant my visa

I want chance to show my proofs

29    Equally obviously, those orders are not orders which the Court could properly make on the appeal. The decision the subject of the application for judicial review was a decision to cancel a visa, not a refusal to grant a visa. There was nothing before the Federal Magistrate which might have demonstrated that the Tribunal’s decision was tainted by jurisdictional error.

30    The appellant did not attend on the hearing of this appeal. Shortly before the hearing he contacted the Registry to say he could not attend because he was ill. He was advised he would need to produce medical evidence. He then sent a copy of a medical certificate, apparently from a medical practitioner, that he was unfit for work for a period of one week (covering the hearing date). It did not identify a cause. It did not say he was unfit to attend Court. Those shortcomings, I am informed, were notified to the appellant shortly after the medical certificate was received.

31    The hearing, albeit brief, proceeded in his absence. The Court directed that the further hearing proceed on the papers, and the appellant was given further time to file and serve any submissions in support of his appeal. He was duly notified of that.

32    He has not filed any further submissions within the time specified.

33    Consequently, even now, there is no identified basis for attacking the jurisdictional status of the Tribunal’s decision, or for establishing that the Federal Magistrate erred.

34    For those reasons, the putative appeal does not enjoy any reasonable prospects of success.

35    In addition, I note that it would have been open to the appellant to apply for the judgment of the Federal Magistrate to be set aside or varied pursuant to r 16.05(2)(a) or (c) of the Federal Magistrates Court Rules 2001 (Cth). No such application has been made. This is a relevant consideration in favour of dismissing an application for leave to appeal: SZOBU v Minister for Immigration and Citizenship [2010] FCA 568.

36    In any event, although that is sufficient to dispose of this “appeal”, for the reasons that follow, the application for judicial review to the Federal Magistrate lacked substantive merit. Consequently, any appeal based on the merits of the application would itself enjoy insufficient prospects of success to warrant the grant of leave to appeal.

37    The Tribunal correctly identified the applicable law. It directed itself to the correct issues, in particular whether it was satisfied that the appellant had breached condition 8202, and whether it was satisfied that the breach of condition 8202 was not due to exceptional circumstances beyond the Appellant’s control.

38    The Tribunal’s findings of fact and conclusions were rationally supported by the evidence before it.

ORDERS

39    For the reasons given, the appeal should be treated as an application for leave to appeal. The application for leave to appeal should be refused. If the appeal itself were to be considered on its merits, the appeal should be dismissed. The appellant should pay to the first respondent the costs of the proceeding.

Associate:

Dated:    12 March 2013