FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1875

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant have leave to file the document titled “Notice of Appeal” received by the Court but not entered into the electronic court file as his proposed Notice of Appeal.

2.    The Minister arrange the filing of that document on the electronic court file.

3.    The Applicant’s interlocutory application for an extension of time to appeal the decision of the Federal Circuit Court of Australia made on 23 May 2019 be dismissed.

4.    The name of the First Respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

THE COURT ORDERS BY CONSENT THAT:

1.    The Applicant pay the First Respondent’s costs of the application, fixed in the amount of $3,000.00.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

KERR J:

1    This case concerns an application for leave to appeal out of time from a decision of Judge Lucev of the Federal Circuit Court of Australia (FCCA). In the relevant decision, the FCCA held that there was no jurisdictional error in a decision of the Administrative Appeals Tribunal (Tribunal) which had affirmed a decision of a delegate of the now Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) to cancel the Appellant’s Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa (Student Visa).

2    The judgment of the FCCA was delivered on 23 May 2019. Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), the Applicant had 28 days to file an appeal. The Minister submits, and it is not disputed, that the Applicant attempted to file a Notice of Appeal one day out of time on 21 June 2019. On the same day, the Applicant also filed an application for an extension of time within which to file the notice.

3    Mr Singh filed an affidavit in support of his application for an extension of time. In that affidavit at [14] he deposes as follows:

I have to apply for extension of time for lodgement of application as I was not provided with the detailed statements and facts based on which the orders were passed and due to which I was unable to lodge the application in statutory timeframe.

4    It should be noted that it appears that the Appellant’s Notice of Appeal was not in fact accepted for filing on the day it was submitted to the Court. Accordingly, I made orders in the course of the hearing for that document to be received as Mr Singh’s Proposed Notice of Appeal and filed on his behalf by the First Respondent. Nothing turns on that procedural point. The document is before the Court.

5    The grounds listed in the Proposed Notice of Appeal are enumerated as follows:

1.    I was born on 4th Aug 1995 in India.

2.    My family resided in India.

3.    I was granted Student (Temporary) Class TU Higher education Sector (Subclass 573 visa on 12 Feb 2014.

4.    On 15th Feb 2014 I came to Australia and commenced my studies at Department of Education, Training and Employment in Queensland. My principal course of study was Bachelor of Business from Queensland University of Technology.

5.    After completing my English studies from Gold coast Institute of technology (Department of Education, Training and Employment) I moved to Perth.

6.    In Perth I choose to study under different course package. I was enrolled in Diploma of Hospitality (Commercial Cookery) including Cert III & Cert IV Commercial Cookery followed by Bachelor of Business. My principal course of study was still a bachelor's degree under new course package.

7.    On 14 November 2014 Department of Immigration and Border Protection issued me with Notice of intension of cancellation of my visa.

8.    On 19 Nov 2014 I replied to Department of Immigration and Border Protection with my Certificate of Enrolment of all the course including my principle course of bachelor’s degree.

9.    Subsequently my visa was cancelled on 28 January 2015 my visa was cancelled under section 116(1)(A) of the Migration Act

10.    I applied for review of decision with Migration Review Tribunal on 4 Feb 2015.

11.    I was invited by Tribunal on 22 December 2015 for hearing in relation to my case. Later on my application was refused by tribunal.

12.    I would like to state that I never breached my visa condition. Even though I changed my education provider I still was enrolled in principal course of study at bachelor’s level and thus I was still maintaining the circumstances that led to grant of my visa i.e. my enrolment in higher education course.

13.    I believe that the tribunal member and case officer was not taken into account all the compelling and compassionate circumstances to my case.

6    Counsel for the Minister, Ms Tattersall, submits that although only a day late, leave to appeal out of time should not be granted by the Court. The Minister relies on two bases for that contention. The first is that the Applicant’s explanation for his delay is inadequate and should not be accepted. The second is that that there is a lack of merit in the proposed grounds.

7    In considering whether to grant an extension of time to appeal, this Court is guided by the following factors:

(1)    The length of the delay and explanation for it;

(2)    Any prejudice that a respondent might suffer due to the delay; and

(3)    The prospects of the case succeeding if an extension were granted.

8    It is not necessary that the Court be satisfied that the prospects of the case succeeding are such that the proposed appeal must succeed. However, leave will not be granted should an application’s prospects of success be so slight as to render the extension of time a futile exercise: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9].

9    I turn, first, to the objection that the Minister presses in relation to delay. The Minister accepts that if Mr Singh is permitted to advance his appeal out of time, the Minister would suffer no relevant prejudice. Nonetheless, Ms Tattersall submits that the Applicant’s explanation for the delay is not adequate and the reason he advances is not credible. Ms Tattersall points to the conflict between Mr Singh’s assertion that the delay arose from him not having access to the reasons of the primary judge in a timely manner, and the fact that the FCCA decision is dated 23 May 2019 which is the day on which that judgment was delivered.

10    I accept that those circumstances raise some grounds for scepticism. However, Mr Singh has filed a sworn affidavit in these proceedings and has not been required for cross-examination on his explanation. In those circumstances, he is entitled to have his explanation accepted. Given that the extent of the delay is only one day, the Court would not in any case accept that the length of the delay is a decisive consideration in this proceeding. The Court does not ignore its existence. However, it places little weight on the Minister’s objection on that premise.

11    However, the second basis of the Minister’s objection - lack of merit - stands in a different position. I accept Ms Tattersall’s submission that what is stated at [1]-[11] of the proposed grounds of appeal are matters of history and do not give rise to any relevant asserted legal error. Paragraph 12, however, asserts as follows:

12.    I would like to state that I never breached my visa condition. Even though I changed my education provider, I still was enrolled in principal course of study at bachelor’s level and thus I was still maintaining the circumstance that led to grant of my visa, i.e. my enrolment in a higher education course.

12    Ms Tattersall accepts that that assertion does raise a ground of appeal that puts in issue the legal correctness of the following conclusions of the Tribunal:

8.    A visa may be cancelled under s. 116(1)(a) if the Minister or the Tribunal is satisfied the circumstances which permitted the grant of the visa no longer exist. The proper construction of s. 116(1)(a) was discussed in detail by the Full Federal Court in MIMA v Zhang (1999) 84 FCR 258. The Court held that s. 116(1)(a) is concerned with a material change in the circumstances.

9.    The applicant’s subclass 573 visa was granted on the basis of his enrolment in a Bachelor of Business with an eligible education provider (Queensland University of Technology) and a Diploma of Business and Commerce Studies with an educational business partner of that provider (Gold Coast Institute TAFE). With these enrolments, the applicant satisfied the definition of an “eligible higher degree student” in cl.573.111 of the Migration Regulations 1994 (the Regulations).

…

16.    The Diploma of Business and Commerce Studies at Gold Coast Institute TAFE (an educational business partner of Queensland University of Technology) was a course of study before and for the purposes of the principal course of study (the Bachelor of Business at Queensland University of Technology). When the applicant ceased to be enrolled in the Diploma of Business and Commerce Studies at Gold Coast Institute TAFE and enrolled on cookery courses, he ceased to be an eligible higher degree student because the cookery courses were not “before and for the purposes of the principal course of study (the Bachelor of Business). When he ceased to satisfy the definition of an eligible higher degree student, the circumstances that enabled him to satisfy cl.573.223(1A) no longer existed.

13    Proposed ground 12 also puts in issue the primary judge’s endorsement of those conclusions.

14    There is only one matter of potential factual dispute. In his submissions to the Court, Mr Singh states that he travelled to Perth:

…after completing my English stud[ies] from Gold Coast Institute of Technology.

15    With respect to that issue, the Tribunal found as follows:

10.    The diploma study was to commence on 7 July 2014 and the bachelor degree study was to commence on 20 July 2015. Information from the Provided Registration and International Student Management System (PRISMS) shows that the applicant’s enrolment in the Diploma of Business and Commerce study was cancelled on 4 August 2014 and his enrolment in the Bachelor of Business was cancelled on 5 July 2014. Both enrolments were cancelled for non-commencement of studies.

16    However, the tension between those two propositions can be resolved by accepting that Mr Singh may have completed some course of studies relating to English competency before the diploma. In any event, it is not in contest that Mr Singh’s enrolment was cancelled on the relevant dates to which the Tribunal refers.

17    After Mr Singh failed to proceed with his studies in Brisbane, his evidence before the FCCA and his submissions in the Court today are to the effect that he travelled to Perth where he commenced an entirely different program of studies. His evidence is consistent with the Tribunal’s findings that he commenced a Certificate III in Commercial Cookery on 25 August 2015; a Certificate IV in Commercial Cookery on 10 August 2015; and a Diploma of Hospitality on 22 February 2016, all at Kingston International College

18    However, contrary to what might be implied by Mr Singh’s submission that he maintained his enrolment in a Bachelor’s Degree, it appears from the Tribunal’s finding that his enrolment in a Bachelor of Business was for a program to commence only on 6 March 2017.

19    I note that the Tribunal also found that Group Colleges Australia, in which Mr Singh ultimately enrolled for the Bachelor’s Degree, is not an eligible education provider. Further, the Tribunal found that Kingston International College is not an educational business partner as required under the Migration Regulations 1994 (Cth).

20    Nothing in the Tribunal’s findings appears to be contentious. Mr Singh did not dispute them in this Court.

21    In those circumstances, Ms Tattersall submits that the critical question is whether the Tribunal was correct to have concluded that a circumstance which had permitted the grant of a Student Visa to Mr Singh no longer existed. The Tribunal itself does not refer to the date upon which that visa was granted, but it does not appear to be in dispute. It is referred to in the Applicant’s affidavit, which appears at [8] in the primary judge’s decision, as 12 February 2014.

22    Ms Tattersall submits that the Tribunal was correct in what it said at [16], and that as such the primary judge’s endorsement of the correctness of those findings as appear at [35] and [36] of his Honour’s reasons, are plainly correct.

23    Ms Tattersall submits that the conclusions of the Tribunal and of the primary judge reflect the law, as stated by the High Court of Australia in Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; 264 CLR 151. I accept that submission.

24    Ms Tattersall further submits that to the extent the Applicant’s proposed ground 13 involves an assertion of legal error on the basis that the FCCA had failed to take into account relevant matters that it was obliged to, that proposition cannot be accepted. It will be recalled that ground 13 provides as follows:

13.    I believe that the tribunal member and case officer has not taken into account all the compelling and compassionate circumstances applicable to my case.

25    Ms Tattersall submits that the Applicant has not identified any matter that the primary judge is said to have omitted to give attention to. I agree. In my view, Judge Lucev’s reasoning is an exemplary instance of careful analysis.

26    When Mr Singh was given opportunity to identify any particular matter or matters that the primary judge failed to have regard to, that opportunity was not taken.

27    I accept that where an applicant is self-represented it is appropriate to give particular attention to the possibility that there may have been an error which they were unable to discern. However, having undertaken that task, but not identified any legal error on the primary judge’s part, I have concluded that the proposed appeal is without merit. Accordingly, I accept the Minister’s submission that leave to appeal must be refused.

Associate:

Dated:    14 November 2019