Singh v Minister for Immigration and Border Protection & Anor [2016] HCATrans 207 (6 September 2016)

Last Updated: 7 September 2016

[2016] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M90 of 2016

B e t w e e n -

SIMRANJEET SINGH

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 6 SEPTEMBER 2016, AT 10.09 AM

Copyright in the High Court of Australia

MR C.J. TRAN: Your Honour, I appear on behalf of the first defendant. (instructed by Mills Oakley)

HER HONOUR: Could I have the matter called outside please, Registrar?

COURT OFFICER: No appearance, your Honour.

HER HONOUR: Thank you, Mr Tran.

MR TRAN: Your Honour, the Court would have received from the plaintiff yesterday a letter and a certificate which was faxed in the afternoon.

HER HONOUR: Yes.

MR TRAN: In that fax the applicant seeks an adjournment on the basis of the medical certificate.

HER HONOUR: Yes.

MR TRAN: The first defendant opposes that adjournment for two reasons. The first is that the medical certificate is unsatisfactory, it does not explain the first plaintiff’s non-attendance here, and the plaintiff was put on notice by my instructors in the afternoon yesterday that the adjournment would be opposed. The second and more substantial reason is that the plaintiff’s application for an order to show cause has no merit for the reasons set out in the written submissions filed by the first respondent in this matter.

In broad compass, there are three reasons why this application lacks merit. The first reason is that the plaintiff’s affidavit which was filed accompanying the application for an order to show cause essentially takes issue with various aspects of the proceedings in the Tribunal and in the Federal Circuit Court. These matters either were adumbrated before the Federal Circuit Court and the Federal Court or they should have been and to seek to invoke this Court’s original jurisdiction to raise the same or similar matters is an abuse of process.

The second reason is that the first plaintiff’s affidavit discloses no error, whether jurisdictional or otherwise, with the reasons and decision of the Federal Circuit Court, the Tribunal and, indeed, the Federal Court. The third reason is that it may well be that the remedy sought by the first plaintiff in his application for an order to show cause would require him in fact to seek certiorari in respect of the Federal Circuit Court’s decision and also the Tribunal’s decision, albeit that really is not sought in the

application for an order to show cause and to the extent that that relief is sought it is outside of time and there is no explanation for the delay.

HER HONOUR: Thank you.

On 4 September 2013, the plaintiff was granted a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa (“the visa”) under the Migration Act 1958 (Cth) (“the Act”). The visa was subject to condition 8516 in Schedule 8 of the Migration Regulations 1994 (Cth) (“the Regulations”), that:

“The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.”

For the grant of the visa, the Regulations also required the plaintiff to be an “eligible higher degree student” or alternatively enrolled (or the subject of a current offer of enrolment) in a course of study approved for the visa under regulation 1.40A of the Regulations: see clause 573.231 of Schedule 2. When the visa was granted, the plaintiff was enrolled in an approved course of study, a Bachelor of Information Technology degree at the University of Ballarat. On 7 April 2014, following poor academic performance, the plaintiff cancelled his enrolment in that degree. At that time, the plaintiff no longer met the criteria to be “an eligible higher degree student” and was no longer enrolled in a relevant course of study.

On 12 September 2014, the plaintiff was advised that consideration was being given to cancel the visa as he had not “continued to be a person who would satisfy” the requirement for a visa. That same day the plaintiff was offered enrolment in a Bachelor of Business degree at Stott’s Colleges, to commence on 20 March 2017. The plaintiff confirmed his enrolment on 17 September 2014.

On 10 November 2014, the delegate cancelled the plaintiff’s visa pursuant to section 116(1)(b) of the Act on the basis that, first, the plaintiff had failed to comply with a condition of the visa, and, second, the visa should be cancelled in the exercise of the discretion conferred on him under section 116 (“the Cancellation Decision”).

The plaintiff was, in fact, subject to two decisions: a decision not to grant the plaintiff a Student (Temporary) (Class TU) Vocational Education and Training Sector (subclass 572) visa and the Cancellation Decision. On 4 July 2016, the plaintiff filed an application in this Court for an order to show cause seeking constitutional writs and related relief. The application to show cause is concerned only with the Cancellation Decision. The plaintiff is unrepresented and did not attend today’s hearing, a matter to which I shall return.

The application for an order to show cause seeks a writ of certiorari to quash the decision of the Federal Court of Australia made on 8 June 2016 and mandamus requiring the first defendant to remake the Cancellation Decision. The applicant also seeks an extension of time.

On 5 September 2016, the plaintiff sent a letter to the Court seeking to postpone today’s hearing. The application was opposed by the first defendant. The material provided by the plaintiff in support of the application was unsatisfactory. The plaintiff’s covering letter stated he was “very sick and having serious flue (sic) and also have serious back pain sickness”, that he could not stand, could not walk long distances and could not sit more than 10 minutes. A medical certificate dated 5 September 2016 was attached. It was a pro forma that had been completed by the medical practitioner. The certificate recorded that the medical practitioner had examined the plaintiff on 5 September 2016, and that according to the “patient’s statement”, not the opinion of the medical practitioner, he was unfit for duties and in particular “unable to attend work or school” from 5 September until 6 September. It is to be noted that despite his claimed medical conditions in his letter, he was able to travel some distance to consult a medical practitioner on 5 September and that the medical certificate does not refer to, or identify, any medical condition, including one of those identified in the plaintiff’s covering letter. For those reasons, the plaintiff’s application for an adjournment should be refused.

It is then necessary to set out what has happened since the Cancellation Decision.

On 14 November 2014, the plaintiff applied to the Migration Review Tribunal (now known as the Administrative Appeals Tribunal (“the Tribunal”)) seeking review of the Cancellation Decision. On 10 February 2015, the Tribunal affirmed the Cancellation Decision. The Tribunal found that grounds for cancellation of the visa existed, as the plaintiff had not maintained enrolment in a course of study approved for the visa under regulation 1.40A of the Regulations, or maintained his status as an “eligible higher degree student” after 8 April 2014 until at least 17 September 2014. The evidence before the Tribunal was that:

1. The plaintiff arrived in Australia in September 2013 as the holder of the visa, intending to undertake a Bachelor of Information Technology in Australia, and prior to arriving in Australia he had achieved a Diploma of Computer Science.
   
2. The plaintiff had poor academic performance, which he attributed to feeling homesick and the differing “study level” between Australia and India and that some of his teachers were no co-operating with him.
   
3. The plaintiff then changed his area of study from information technology to commercial cookery and hospitality. The plaintiff’s reasons for the change were that he worked part-time in a bakery, it was suggested to him by a migration agent, and that his parents had advised him that he should undertake a baking course if he liked cooking. The plaintiff also gave evidence that there were few hospitality courses in India as compared with Australia.
   

The Tribunal was not satisfied that the plaintiff made any effort to improve his performance in the information technology course and was not satisfied that the plaintiff would incur any particular difficulties if the visa was cancelled. The Tribunal was not satisfied that the plaintiff was a genuine student wishing to improve his education qualifications for his career. The Tribunal considered the plaintiff was attempting to prolong his stay in Australia for reasons unrelated to academic and vocational success.

The plaintiff then applied for judicial review of the Tribunal’s decision to the Federal Circuit Court on the ground that the Tribunal applied the wrong test by focusing on the plaintiff “maintaining” his status as an “eligible higher degree student”, rather than focusing on the word “continue” used in condition 8516 of the Regulations. The plaintiff argued there was a material difference between the words “maintain” and “continue” with the meaning of latter including “go on after an interruption”. Upon a review of the relevant sections of the Act and the Regulations and their application to the facts of this case, Judge Smith rejected the plaintiff’s argument as straining the language of the condition in the Regulations. At the hearing, the plaintiff also argued that the Tribunal did not consider whether the plaintiff satisfied the criteria in clause 573.231 in Schedule 2 of the Regulations. Judge Smith found that, although the Tribunal’s reasons were inadequate, the Tribunal did consider whether the plaintiff satisfied that clause. On 27 November 2015, the Federal Circuit Court dismissed the plaintiff’s application.

On 11 December 2015, the plaintiff appealed the Federal Circuit Court’s decision to the Federal Court. The plaintiff’s appeal grounds were that first, the Tribunal was required to consider the wider meaning of “continue”, as his enrolment in Stott’s College meant that he “continued to be a person who would satisfy” the requirement for the visa and, second, that the Federal Circuit Court erred in its construction of the Regulations. The Federal Court dismissed the appeal on 8 June 2016.

I now turn to the plaintiff’s application in this Court. The merits of this application affect not only the reasons for dismissal of the application for the order to show cause, but also the application for adjournment. The Cancellation Decision was made approximately one year and eight months before the application was made to this Court. To the extent the application seeks an order in the nature of mandamus in relation to that decision, the plaintiff’s application for an order to show cause is made out of time: see section 486A(1) of the Act and rule 25.07.2 of the High Court Rules 2004 (Cth). The Court may extend these periods of time under section 486A(2) of the Act and rule 4.02 of the Rules if it is satisfied that it is necessary in the interests of the administration of justice to do so: see Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; 177 ALR 491.

In this application it is not necessary, in the interests of the administration of justice, to extend time and the application for an order to show cause should otherwise be dismissed for the following reasons.

First, the plaintiff had a right to apply for review of the Cancellation Decision. Those applications were unsuccessful, both in the Federal Circuit Court and in the Federal Court. The fact that those applications were unsuccessful does not justify an order extending the time limit for applying for judicial review in this Court: see Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678, paragraph 13; 297 ALR 560 at 563.

Second, the grounds of the plaintiff’s substantive application were considered by the Federal Circuit Court and the Federal Court, with both courts rejecting the plaintiff’s contentions and dismissing the application and appeal respectively. Pursuant to rule 25.03.3, at a hearing of an application for an order to show cause, the Court may dismiss the application if the Court is not satisfied that the application raises an arguable case for the relief claimed. I have reviewed the plaintiff’s complaint, the Tribunal’s decision and the decisions of the Federal Circuit Court and the Federal Court. There is no identifiable error in any of those decisions. The application does not disclose any arguable ground and the argument sought to be advanced by the plaintiff lacks merit. No less importantly, the plaintiff’s challenges to the decision of the delegate do not support the relief claimed.

Third, to the extent that the plaintiff needs an extension of time, even if the plaintiff has an arguable case (which he does not), the plaintiff has not demonstrated any adequate reason why an extension of time should be granted in relation to the Cancellation Decision.

For those reasons, it is not in the interests of the administration of justice to make an order for enlargement of time for the filing of the application to show cause in relation to the Cancellation Decision and the application should otherwise be dismissed.

The orders I make are as follows:

1. The plaintiff’s application for an enlargement of time under section 486A(2) of the Act and rule 4.02 of the Rules is refused.
   
2. The plaintiff’s application for an order to show cause is dismissed pursuant to rule 25.03.3(a) of the Rules.
   
3. The plaintiff is to pay the first defendant’s costs of the application.
   

Anything, Mr Tran?

MR TRAN: Your Honour, if I could just raise one matter - and I apologise for not noting this before. It may well be that an order should be made under rule 21.05.1 amending the parties to the application. Your Honour will notice the application for an order to show cause seeks relief against the Minister, which explains why the Minister is the first defendant, but then the application for an order to show cause seeks certiorari against Justice Buchanan in the Federal Court of Australia. Currently, the Administrative Appeals Tribunal is named as the second defendant. I wonder – it may be appropriate and necessary to make an order under 21.05.1 that the Administrative Appeals Tribunal cease to be a party and that Justice Buchanan be named as a defendant, since relief is sought against Justice Buchanan.

HER HONOUR: I think part of my reasons is that the relief sought does not match – is not appropriate.

MR TRAN: Yes, your Honour.

HER HONOUR: There is an inconsistency. The application for an order to show cause has the Administrative Appeals Tribunal as the second defendant. The affidavit has the Federal Court of Australia as the second defendant. So I think the answer is that, regardless of which way it is dealt with, it seems as though the Federal Court of Australia is the way you have dealt with it as well, as I understand the way you filed your submissions.

MR TRAN: Yes, your Honour.

HER HONOUR: I mean I am happy to substitute the Federal Court of Australia as the second defendant.

MR TRAN: It is probably unnecessary, your Honour, if the Court pleases.

HER HONOUR: Thank you.

AT 10.26 AM THE MATTER WAS CONCLUDED