FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 841

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The Appellant pay the First Respondent’s costs, to be taxed unless agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

1    The appellant appeals against an order of Judge Burchardt of 3 June 2013 which dismissed the appellant’s application for judicial review of a recommendation of the second respondent (the Tribunal) of 6 March 2012.

2    Section  477(1) of the Migration Act 1958 (Cth) (the Act) requires that:

An application to the Federal Circuit Court [formerly the Federal Magistrates Court] for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

3    The application for review before the Federal Magistrates Court (as it then was) was filed 130 days out of time. The first question to be answered by the Judge was whether time to file the application should be extended. The Federal Circuit Judge refused the appellant’s application for an extension of time to file the application for review. His Honour considered that the appellant’s chances of success were not sufficient to justify the extension even if all other matters were presumed in his favour.

4    Before this Court, the Tribunal filed a Submitting Notice pursuant to r 12.01(1) of the Federal Court Rules 2011 (Cth) on 3 July 2013.

PROCEDURAL HISTORY

5    The appellant is a national of India who arrived in Australia in September 2007 on a subclass 572 (Vocational Education and Training Sector) visa which was valid until 15 July 2009. On 15 July 2009, the appellant applied under s 65 of the Act to the First Respondent (the Minister) for a Student (Temporary) (Class TU) subclass 572 visa. On 7 October 2009, a delegate of the Minister requested documentary evidence from the appellant in relation to his financial capacity to meet the costs of his proposed study, living expenses and travel costs to return to India at the conclusion of his study. The appellant failed to provide the requested documents and, on 21 October 2009, a delegate of the Minister extended the time to do so by two days. The appellant did not provide any material.

6    On 13 November 2009, a delegate of the Minister refused the application on the basis that the appellant did not satisfy the requirements of cll 572.223 and 572.235 of Sch 2 of the Migration Regulations 1994 (Cth) and found that the appellant was not a genuine applicant for entry and stay as a student. On 3 December 2009, the appellant applied to the Tribunal for a review of the decision of the delegate of the Minister.

THE PROCESS BEFORE THE TRIBUNAL

7    The appellant sought review of the decision of a delegate of the Minister who refused an application to grant a further Student (Temporary) (Class TU) visa. The appellant lodged the application for review, via his appointed migration agent, on 3 December 2009. The application attached the following documents in support:

1.    the Minister’s decision and notification letter dated 13 November 2009;

2.    the bio-data page of the appellant’s Indian passport;

3.    a letter from the Victorian Institute of Culinary Arts and Technology advising that the appellant had enrolled in the Diploma of Hospitality Management course and would be credited for units already completed at the Hales Institute which equated for more than 51% of the course. The commencement date was 17 July 2009;

4.    statement of interim results from the Hales Institute;

5.    confirmation of enrolment for various units of the proposed course, including notification of some fees being pre-paid;

6.    a copy of the appellant’s secondary school results; and

7.    written submissions from the appellant’s migration agent.

8    On 4 December 2009, the Tribunal invited the appellant, via his migration agent, to provide any further material in support of his application. On 6 January 2010, the appellant provided further documents to the Tribunal including the following:

1.    an affidavit sworn by the appellant’s cousin, who stated he was sponsoring the appellant;

2.    financial information, including bank statements from the appellant’s cousin;

3.    a letter from Hales Institute dated 28 May 2009 stating that the appellant’s attendance record was unsatisfactory;

4.    further confirmation of enrolment at the Ghurkhas Institute of Hospitality and Management and the Victorian Institute of Culinary Arts and Technology;

5.    three medical certificates dated 5 May 2009 stating the appellant was unwell on 20 January 2009, 2 February and 3 February 2009.

9    On 14 November 2011, the Tribunal invited the appellant, via his migration agent, to attend a hearing scheduled for 6 December 2011 as the Tribunal was unable to a make a positive decision with the material before it. Further, the appellant was invited to provide up to date information in relation to his current enrolment and his financial capacity. The appellant did not attend the hearing on 6 December 2011 and did not provide any further supporting documents.

10    The Tribunal further invited the appellant to respond to the material held by it by letter on 15 December 2011. That letter advised the appellant that it was a condition that the appellant had, at the time of decision, complied with all conditions that applied to the last substantive visa he held and that the appellant failed to meet this requirement as a result of his unsatisfactory attendance at the Hales Institute: see [8.3] above.

11    The Tribunal found that the appellant had not substantially complied with a condition of his visa. His education provider certified that the appellant’s attendance record was unsatisfactory. On 6 March 2012, the Tribunal affirmed the decision of a delegate of the Minister not to grant to appellant a Student (Temporary) (Class TU) visa.

THE COURT BELOW

12    The appellant filed an application for review in the Federal Magistrates Court (as it then was) on 17 August 2012. The grounds of review were:

1.    the appellant applied for a student visa on 15 July 2009;

2.    the appellant applied for a review of that decision to the Tribunal on 3 December 2009;

3.    the appellant received a refusal from the Tribunal on 6 March 2012 and then the appellant applied for Ministerial intervention which was refused on 2 August 2012. The appellant thinks that the Tribunal and the Minister did not look at his situation.

13    On 3 October 2012, a Registrar of the Court listed the application for final hearing and directed the appellant to file further material. The appellant did not file any further material.

14    The Federal Circuit Judge refused the application for an extension of time and dismissed the application on 3 June 2013. The Judge concluded at [28]:

… the Tribunal found, and it was clearly correct to find, that the [appellant’s] education provider had certified unsatisfactory attendance it is immediately obvious that the [appellant] would never satisfy the Tribunal that he had complied with Condition 8202 [of the visa]. This being so the Tribunal was clearly not wrong to uphold the decision of the delegate to refuse the [appellant’s] visa application. It follows that the application for an extension of time must be refused and the application dismissed with costs.

15    The application for an extension of time was refused pursuant to s 477(2) of the Act and the substantive application was also dismissed.

APPLICATION TO THIS COURT

16    The appellant filed a Notice of Appeal on 20 June 2013. The grounds of appeal in this Court were that the Federal Circuit Judge:

… failed to find that the Tribunal’s decision was in breach of s 424 of the [Act] and therefore fall under jurisdictional error.

(a)    There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1) [of the Act].

17    On 3 July 2013, the Minister file a Notice of Objection to Competency (Notice of Objection to Competency). The basis of the Notice of Objection to Competency was that the Federal Court did not have jurisdiction to hear and determine the Notice of Appeal. The Federal Court has jurisdiction to hear and determine appeals from judgments of the Federal Circuit Court: s 24 of the Federal Court of Australia Act 1976 (Cth).

18    However, s 476A of the Act relevantly states:

…

(3)    Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

(a)    a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2);

…

(Emphasis added.)

19    The application before this court fails at the first hurdle. The application for an extension of time under s 477(2) of the Act was refused by the Federal Circuit Judge. The Federal Court does not have jurisdiction to hear or determine the application before it: see AZACM v Minister for Immigration and Citizenship [2013] FCA 710 at [11] and the cases cited; Singh v Minister for Immigration and Citizenship [2013] FCA 57 at [13] and MZYIZ v Minister for Immigration and Citizenship [2010] FCA 1449 at [4].

20    The appellant did not appear. Counsel for the Minister informed the Court that it had served a copy of the Notice of Objection to Competency on the appellant. Subject to the Minister filing an affidavit deposing to service of the Notice of Objection to Competency on the appellant at the address he had notified to the Court as his address for service, the appellant’s application is dismissed, and the appellant will be ordered to pay the Minister’s costs, such costs to be taxed unless agreed.

Associate:

Dated:    19 August 2013