Singh v Minister for Immigration and Border Protection & Anor [2017] HCATrans 140 (30 June 2017)

Last Updated: 3 July 2017

[2017] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M26 of 2017

B e t w e e n -

GURPREET SINGH

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

Application to show cause

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 JUNE 2017, AT 9.45 AM

Copyright in the High Court of Australia

MR G. SINGH appeared in person.

MR L.T. BROWN: May it please the Court, I appear on behalf of the first defendant. (instructed by Sparke Helmore)

HIS HONOUR: No appearance for the second defendant. Mr Singh, is there anything that you wish to say in addition to what you have put in your papers? You do not have to say anything, it is just if you wish to this is the opportunity to do so.

MR SINGH: Yes, I would like to repeat those things again just if I can.

HIS HONOUR: Mr Singh, it is not mandatory, but it is customary to take your hat off in Court, a bit like church.

MR SINGH: Your Honour, back in 2013 I got visas of Class 572. Immigration granted that and then they cancelled it in 2014 – February 2014 and the reason they cancelled it, they said I might have breached conditions but they did not know what I was going through that period of time. I had really mental stress because my father was always – he was very sick back in overseas. I was not aware Immigration has cancelled my visa. They have cancelled my COE and that they find out – they found out – they cancelled my COE, I went there personally, and asked themselves why they cancelled it, then they give me the explanation. I just was not very happy with the explanation.

I told them what I was going through and they did not listen to me and they just stick with their decision. So here I am just requesting you just to have a look at my application as they have not done the justice for me. I am just here seeking for the justice. So that is all I want. I have really – time that six months I cannot even explain it now and they just did not listen to me. I was not very happy about it and I just – I know I lost the opportunity, I am just trying to get it back now. I just need a second chance. I can finish my study and yes, I cannot say any more.

HIS HONOUR: All right. Thank you, Mr Singh.

MR SINGH: Thank you.

HIS HONOUR: Mr Brown, is there anything you want to add to what has been written?

MR BROWN: No, your Honour.

HIS HONOUR: Thank you, Mr Brown.

By application for an order to show cause dated 7 March 2017, the applicant seeks certiorari to quash the judgment and orders of the Federal Court of Australia (McKerracher J), given and made on 21 February 2017, whereby his Honour rejected an application for an extension of time and leave to appeal from an order of the Federal Circuit Court of Australia (Judge Riethmuller), rejecting an application to set aside a notice of discontinuance of the applicant’s application for judicial review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) of 14 October 2014 to affirm a decision of the Minister’s delegate made on 19 February 2014 to cancel the applicant’s Student (Subclass 572) visa. The applicant also seeks mandamus to compel the Minister to revoke the cancellation of the student visa.

The applicant is an Indian citizen who came to Australia on 5 June 2009 as the holder of a Subclass 572 visa valid until 13 September 2011. He was granted a further Subclass 572 visa on 14 October 2011 and, on 9 January 2013, was granted a third Subclass 572 visa with an expiry date of 17 April 2015. On 19 February 2014, the Minister’s delegate cancelled the applicant’s visa for breach of Condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) by reason of the applicant not having been enrolled in a registered course from 16 July 2013.

On 28 February 2014, the applicant applied to the Migration Review Tribunal for review of the delegate’s decision but, on 14 October 2014, the Tribunal affirmed the delegate’s decision.

As the Tribunal recorded in its reasons for decision, on 4 March 2014, the Tribunal acknowledged receipt of the application for review and invited the applicant to provide material or written arguments in support of his application. Thereafter, the case was constituted before the presiding member on 27 August 2014 and by letter dated 2 September 2014 the Tribunal informed the applicant that it had considered the material before it but was unable to make a favourable decision on the basis of that information alone. It invited the applicant to attend a hearing listed for 14 October 2014 to give evidence and present argument in support of his application, but the applicant did not attend the hearing. Consequently, the Tribunal proceeded to make its decision pursuant to section 362B of the Migration Act 1958 (Cth) without taking further action to allow or enable the applicant to appear before it. The Tribunal found that the applicant had failed to comply with Condition 8202 in that, according to the PRISMS information, the applicant had ceased to be enrolled in a registered course on 16 July 2013 and had thereafter not re-enrolled in a registered course.

The Tribunal then turned to the exercise of discretion as to whether the student visa should be cancelled. The Tribunal observed that the applicant had informed the delegate that he had been suffering from traumatic circumstances which affected his health and mental status and he had been adversely affected by family problems in India and that he did not know that his enrolment had been cancelled. The applicant also claimed that he had re-enrolled but, as the Tribunal further observed, the applicant did not provide any evidence in support of his claims or any submissions as to why the visa should not be cancelled. Accordingly, the Tribunal affirmed the delegate’s decision.

Thereafter, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision but subsequently filed a notice of discontinuance with leave granted by Judge Riethmuller in chambers on 25 July 2016. Later, the applicant made a further interlocutory application for orders to set aside the grant of leave and the notice of discontinuance, and to allow him to proceed with the application for judicial review. That application came on for hearing before Judge Riethmuller on 30 August 2016.

As Judge Riethmuller observed in his reasons for judgment, the interlocutory application faced two difficulties. First, since the proceeding had been discontinued with leave, the bases for obtaining the Court’s leave to set aside the notice of discontinuance and reinstate the proceeding were limited to circumstances in which it appeared that to fail so to order would be productive of injustice. Here, there was nothing before the Court that suggested that a refusal of leave to withdraw the notice of discontinuance would be productive of injustice. Secondly, and more significantly, it was apparent that the applicant did not have an arguable case, in that he was seeking to set aside cancellation of his student visa in circumstances where he did not have a current enrolment, did not have an offer of enrolment and did not have any material to indicate when and if he would start studying again. Thus, as his Honour concluded:

“It is difficult to see how the Tribunal or delegate in the circumstances as at the date of the Tribunal’s decision could have concluded that they ought not to cancel his student visa as, on the material before them, he was no longer a student. The applicant had not participated in the process and is not able to point to any procedural errors on the part of the Tribunal. Indeed, the Tribunal specifically identified that it had regard to policy guidelines in paragraph [19] of the decision.

It is also apparent that the Tribunal considered the reasons he gave the delegate, noted that there was no specific evidence to support them and, in any event, the time that had passed since then would make it unlikely that they would be effective reasons for the exercise of the discretion in his favour, particularly in circumstances where he had no enrolment, or offer of enrolment.

In the circumstances of this matter, I am not persuaded that the applicant has an arguable case. Therefore, I have no option but to refuse the application.”

Thereafter, the applicant applied out of time for an extension of time and leave to appeal to the Federal Court, but, on 21 February 2017, McKerracher J rejected the application. His Honour could find no error in Judge Riethmuller’s reasons or conclusion. He concluded that the appeal would be bound to fail and accordingly refused the extension of time and leave to appeal that was sought.

The grounds of the application for order to show cause are as follows:

“1. If the Court determines that vitiating error has been demonstrated, then the Plaintiff is entitled to the declaratory relief from court costs and get 573 visa grant or give permission to further studies with 573 subclass onshore in Australia.

2. Case officer hasn’t had given me enough time to provide and give me a chance to go ahead for studies in Australia, this situation has left me nowhere in Australia wasted my valuable time.
   
3. Writ of certiorari of Federal Court Decision made on 21st February 2017 by McKERRACHER J.
   
4. Nor is mandamus available to compel the exercise of those powers.”
   

In his affidavit in support of the application, as well as reiterating the claims of ill health and family difficulties which he advanced before the delegate, the applicant deposes that the reason he did not attend the hearing before the Migration Review Tribunal was due to miscommunication between him and his migration agent. The latter claim, however, is not only new but also uncorroborated, and even now the applicant does not suggest that he has re-enrolled or has any offer of re-enrolment, nor does he provide any indication as to when and if he might re-enrol.

In those circumstances I consider that his application is devoid of merit and should be dismissed.

Do you seek costs, Mr Brown?

MR BROWN: Yes, your Honour.

HIS HONOUR: The application is dismissed with costs. Thank you, Mr Singh.

AT 9.58 AM THE MATTER WAS CONCLUDED