Singh v. Minister for Immigration and Border Protection & Anor [2016] HCATrans 258 (3 November 2016)

Last Updated: 16 November 2016

[2016] HCATrans 258

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M107 of 2016

B e t w e e n -

SHERJIT SINGH

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Second Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 3 NOVEMBER 2016, AT 11.17 AM

Copyright in the High Court of Australia

MR L.T. BROWN: If the Court pleases, I appear for the Minister. (instructed by Clayton Utz Lawyers)

HIS HONOUR: Thank you. Would you call the matter outside please, Madam Registrar.

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Thank you. Mr Brown, what do we do? Proceed or not?

MR BROWN: Your Honour, I understand that there was some communication with the Registry.

HIS HONOUR: Yes, there was an email sent to the Deputy Registrar on 2 November at 1.49 pm saying that the plaintiff could not be at the hearing tomorrow, being today, because his brother is really sick and he had to go overseas to see him as it was really urgent and therefore could you kindly extend the time of my hearing for four weeks.

MR BROWN: Yes, your Honour. I got handed that email shortly before Court today. I have had time to get some instructions and my instructions are that my client seeks to oppose any application for an adjournment on the basis that the material given in support of it is insufficient to establish the basis on which the adjournment is sought.

HIS HONOUR: Yes.

MR BROWN: Having said that, your Honour, my submission is the matter should proceed in the absence of Mr Singh today. The papers have been filed, submissions have been made on the basis of those papers, and there is no reason why the matter cannot proceed for a determination on its merits.

HIS HONOUR: Thank you.

In this matter the plaintiff seeks an order to show cause why certiorari should not go to quash decisions of the Migration Review Tribunal dated 31 October 2011 and of the defendant (“the Minister”) of 6 June 2011 to refuse the plaintiff a Student (Temporary) (Class TU) visa. The plaintiff also seeks mandamus to compel the Minister and the Tribunal to determine his application for visa according to law and an injunction to restrain the Minister from giving effect to the decision to refuse the visa.

Upon the matter coming on for hearing before me this morning there has been no appearance by the plaintiff. Yesterday, however, an email was sent to the Registry, apparently from the plaintiff, in which it was stated as follows: “I can’t make it to the hearing tomorrow. My brother was really sick and I have to go overseas to see him as it was really urgent. Can you kindly please extend my hearing date for four weeks? I’m attaching my passport photos. Can you please have a look? Thanks.” There is included in the email a facsimile copy, apparently, of the plaintiff’s passport.

The application for adjournment of the hearing which appears thus to be constituted is opposed by the Minister on the basis that there is insufficient explanation of the need for delay. I agree with that submission. I propose therefore to proceed in the absence of the plaintiff.

As seems so often to be the case in migration matters, the application for order to show cause is very substantially out of time. It is more than 18 months outside the time limited by section 486A of the Migration Act 1958 (Cth) and more than four and a half years beyond the time prescribed by rule 25.06 of the High Court Rules 2004 (Cth). Hence the matter cannot proceed without an extension of time. I am not disposed to grant an extension of time. Apart from the inordinate delay and the fact that the plaintiff has already pursued every available avenue of review and appeal without success, the application appears to me to be hopeless.

In brief substance, the plaintiff is an Indian citizen who arrived in this country with his wife more than five years ago. On 12 March 2011, the plaintiff’s wife applied for a student visa naming the plaintiff as her dependant. At that time the plaintiff did not propose to study in this country. The delegate refused the application on the basis that the financial capacity of the applicant had not been established in conformity with Schedule 5A to the Act.

On 13 October 2012, regrettably the plaintiff’s wife died whilst in India. Subsequently the plaintiff prosecuted an application for review of the delegate’s decision with, in effect, the plaintiff substituted as the applicant for student visa. The Migration Review Tribunal heard the application over two days on 21 May 2013 and 3 July 2013. On 2 October 2013 the Tribunal affirmed the delegate’s decision to refuse the visa on the basis that the application was not accompanied by evidence that the plaintiff was enrolled in a registered course of study as required by Item 1222(3)(c) of Schedule 1 to the Migration Regulations 1994 (Cth).

The plaintiff sought judicial review of the Tribunal’s decision, which was granted, and the Federal Circuit Court of Australia remitted the matter to the Tribunal for redetermination on the basis that the Tribunal had failed to consider the plaintiff against criteria applicable to a primary applicant.

Clauses 570.232, 571.232, 572.231, 573.281, 574.231 and 575.231 of the Regulations specify that, subject to some exceptions of no present relevance, it is a requirement for the grant of the student visa that at the time of decision to grant the visa the applicant be enrolled in, or be the subject of a current offer of enrolment in a course of study that is a principal course of a type specified under regulation 1.40A for the subclass at the time of application.

On 10 July 2014, the Tribunal wrote to the plaintiff inviting him to give evidence and present argument at a hearing to be held on 15 August 2014. The letter also set out, in bold type, an invitation to the plaintiff to provide a current confirmation of enrolment or offer of enrolment in a principal course of the specified kind.

At the plaintiff’s request, the hearing was deferred until 21 August 2014. On that day the plaintiff appeared before the Tribunal with the assistance of an interpreter. During the course of the hearing, he tendered a letter of offer dated 16 July 2013 of a place in a Certificate III ESL course to commence on 22 July 2013 and end on 3 January 2014, to be followed by a Certificate IV ESL course to commence on 20 January 2014 and end on 4 July 2014. He gave evidence, however, that he had not commenced those courses and he did not provide any evidence of current enrolment or current offer of enrolment in any other courses.

On 21 October 2014, the Tribunal affirmed the delegate’s decision to refuse the grant of student visa on the basis that there was no evidence before the Tribunal that the plaintiff was currently enrolled in, or the recipient of a current offer of enrolment in any applicable course of study.

On 11 November 2014, the plaintiff filed an application for judicial review in the Federal Circuit Court. On 27 January 2016, his Honour Judge Burchardt dismissed the application pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). His Honour held that the Tribunal had applied the correct criteria and rightly concluded on the evidence before it that it could not be satisfied that the plaintiff fulfilled the criteria for grant of student visa.

On 5 February 2016, the plaintiff filed an application for leave to appeal to the Federal Court of Australia, and by orders made on 5 April 2016 the application was set down for hearing on 10 August 2016. On 2 August 2016, before the matter was heard, a letter from a firm of solicitors purporting to act for the plaintiff arrived in the Registry. It stated that the plaintiff had first attended on the solicitors on 28 July 2016 and that the solicitor who would be responsible for the plaintiff’s case was away in India attending to an emergency. An adjournment of six months was sought on the basis that the solicitor in question was the only Punjabi speaker within the firm. Unsurprisingly, her Honour Justice Charlesworth directed that notice be sent to the firm of solicitors that the Court would not act upon correspondence unless a Notice of Commencing to Act as Solicitor on the Record was filed in accordance with rule 4.3 of the Federal Court Rules 2011 (Cth). No such notice was filed.

Upon the matter coming on for hearing on 10 August 2016, the plaintiff appeared in person and once again sought an adjournment on the same grounds as had been stated in the solicitor’s letter. He also informed Justice Charlesworth that he suffered from physical and mental health problems, the result of the death of his family. Justice Charlesworth, however, refused the application for adjournment, essentially on the basis that the plaintiff had had abundant time to retain legal representation.

Her Honour then dealt with the substance of the application for leave to appeal, which was advanced on the basis of four proposed grounds of appeal, namely: (1) that the Federal Circuit Court had made its decision without considering all the facts and evidence on file; (2) that the Federal Circuit Court had failed to accord the plaintiff procedural fairness; (3) that the Federal Court had erred in failing to take into account that originally the plaintiff had been the dependant applicant and that evidence of enrolment had been submitted but not updated before the Tribunal made its decision; and (4) the Federal Circuit Court had erred in failing to apply the requirements of section 357A et seq of the Act, in particular the provision in section 359 of the Act that permits a tribunal to get such information that it considers relevant and to that end to invite a person to give such information.

Justice Charlesworth rejected each ground of appeal. Her Honour disposed of the first two on the basis that information which it was contended the Federal Circuit Court had failed to take into account or afford the plaintiff an opportunity to provide was evidence of the lapsed enrolment offers previously referred to. Thus, her Honour held it was irrelevant to satisfaction of the eligibility criteria for the visa which was sought. Justice Charlesworth rejected the third ground of appeal as, in effect, directed to merits-based review and otherwise as a complaint that the plaintiff had not been afforded an opportunity to provide further evidence. The difficulty with the latter aspect of the ground, as her Honour observed, was that it had not been advanced as a ground of review before the Federal Circuit Court and, in any event, there was nothing in the materials to suggest that the applicant had sought further time in which to obtain additional evidence.

Justice Charlesworth rejected the fourth ground of appeal for essentially similar reasons, but not least because that ground of appeal had not been raised as a ground of review before the Federal Circuit Court, and hence it could not be contended that the Federal Circuit Court’s failure to consider it was an error. Justice Charlesworth concluded that there was nothing about the application which warranted the grant of leave. Thus, on 12 August 2016, her Honour rejected the application.

In his grounds of application for order to show cause before this Court, the plaintiff advances four grounds for relief: (1) the Federal Court did not recognise the jurisdictional error on the part of the Tribunal in failing to assess and weigh exceptional circumstances; (2) the Tribunal failed to accord the plaintiff natural justice; (3) the plaintiff’s lack of knowledge of the law; and (4) the failure to give consideration to the plaintiff’s past student courses in Australia.

Ground (1) is unparticularised and in relevant respects is meaningless. Ground (2) is untenable. For the reasons already given it is plain that the Tribunal did accord the plaintiff natural justice. Ground (3) is irrelevant. Ground (4) is unparticularised and, in any event, is also irrelevant. There was no evidence of past studies before the Tribunal and it is not suggested even now that there is evidence available of past studies that satisfied the criteria for the grant of visa that was sought.

In summary, the plaintiff has failed to advance an arguable basis for the relief which he seeks and, therefore, to permit him to proceed with his application to show cause would be futile. In those circumstances it is ordered that the application be dismissed.

Do you seek costs, Mr Brown?

MR BROWN: Yes, your Honour.

HIS HONOUR: It is ordered that the application be dismissed with costs. Thank you.

AT 11.34 AM THE MATTER WAS CONCLUDED