FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration and Border Protection [2015] FCA 439 Citation: Singh v Minister for Immigration and Border Protection [2015] FCA 439 Appeal from: Singh v Minister for Immigration and Border Protection [2015] FCCA 121 Parties: SHAMSHER SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: VID 50 of 2015 Judge: TRACEY J Date of judgment: 12 May 2015 Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – judicial review of decision to refuse a further Subclass 572 Student Visa – no appellable error made out Legislation: Migration Regulations 1994 (Cth) Cases cited: Patel v Minister for Immigration and Citizenship (2012) 206 FCR 384 Date of hearing: 12 May 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 14 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr L Brown Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent entered a submitting appearance save as to costs IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 50 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SHAMSHER SINGH Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: TRACEY J DATE OF ORDER: 12 MAY 2015 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 50 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SHAMSHER SINGH Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: TRACEY J DATE: 12 MAY 2015 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The appellant is a citizen of India. In 2011 he was granted a Subclass 572 Student Visa which was valid until 15 March 2012. It was granted in order that he might complete a Certificate IV in Business and a Diploma of Management at the Harward International College. On the day on which the visa expired the appellant applied for a further Subclass 572 Student Visa. 2 In order to obtain the visa it was necessary for him to satisfy a number of criteria. One of those was that there was not in place a certification by an education provider that a visa holder was not achieving satisfactory course progress. Such a certification had been issued, in relation to the appellant, by the Harward International College. 3 The Minister's delegate refused the appellant's application for the further student visa because of the certification. 4 In April 2012 the appellant appealed to the Migration Review Tribunal ("the Tribunal) from the delegate's decision. The appeal did not come on for hearing until September 2013. The appellant attended the hearing. 5 The Tribunal affirmed the delegate's decision on the ground that the certification that the appellant was not achieving satisfactory course progress meant that one of the essential criteria for the granting of the visa had not been met. It affirmed the decision under review. 6 The appellant sought judicial review of the Tribunal's decision in the Federal Circuit Court. His only ground was expressed thus: "I am not satisfied with decision on my MRT application therefore I want to apply against the decision in the court." 7 The trial judge found, relying on the decision of this Court in Patel v Minister for Immigration and Citizenship (2012) 206 FCR 384 (Collier J), that the college's certification was, for practical purposes, conclusive for the purposes of the criteria prescribed by the Migration Regulations 1994 (Cth). As no jurisdictional error had been established the application was dismissed. 8 The appellant now appeals to this Court. He does so on 10 grounds. Only one of these grounds may be understood to suggest jurisdictional error on the part of the Tribunal. This ground was not argued in the Federal Circuit Court. The other grounds are directed to merits issues. The grounds are: "1. I am not satisfied with the decision of the Minister for Immigration and Border Protection not to grant me a Student visa as my Education provider was not correct in Certifying that I had not achieved satisfactory progress in the course as required by clause 572.235 of the Migration Rules. 2. I am not satisfied with the decision of the Migration Review Tribunal to affirm the decision of the Delegate of the Minister. 3. I had completed substantial part of the course, I fact, I had two CoEs issued in my favour. I had completed one course fully and the units for other course were completed but attainment certificate was not issued to me. When I enquired about the attainment certificate, I was informed that the same cannot be issued as I could not pay the fees in time. 4. My education provider has wrongly certified that I had not completed substantial part of the course. The actual reason for issuance of notice under section 20 of the Education Services for Overseas Students Act 2000 is the non-payment of fees and not that I had not achieved satisfactory progress in the course. 5. Further, my education provider did not give me enough time to access Harward International College's complaints and appeals policy and issued notice u/s 20 well before the expiration of 20 days' notice period. 6. I was informed that I had 20 days from 20 November 2011 within which I could access Harward International College's complaints and appeals policy. However the college issued the notice on 8 December 2011, before the 20 days' notice period and thus the notice is null and void ab initio. 7. The Delegate had not cancelled my visa immediately after issue of notice by the college but cancelled the visa after my visa period was over. Thus the Delegate was not satisfied with the issuance of notice under section 20. 8. The Tribunal failed to note that the Delegate had not cancelled my visa immediately after issue of notice by the college but cancelled the visa after my visa period was over. 9. I am not satisfied with the reasons given by the Respondents to uphold the decision of my education provider, though all the documents pertaining to my results were submitted. 10. The respondents failed to provide me natural justice as my circumstances were not considered before issue with All the documents pertaining to my results were submitted." 9 The appellant appeared in person. He had the assistance of an interpreter although he had a sufficient command of English to be able to make some clear submissions himself. 10 I explained to the appellant the limited basis upon which it was open to the Federal Circuit Court and to this Court to intervene in matters of this kind. 11 When invited to elaborate on his grounds the appellant concentrated on merits issues. He said that the College had issued the notice because he had not paid fees which it had demanded of him. He said that he had completed all units of his course. He had explained his predicament to an officer of the department only to be told that there was nothing that she could do. He attributed to her the statement that, had he had a current visa, there would have been no ground to cancel it. 12 The appellant has failed to identify any jurisdictional error which would have warranted the intervention of the Federal Circuit Court. Like that Court I am unable to detect any such error in the Tribunal's reasons. 13 No appellable error has been established and, as a result, the appeal must be dismissed with costs. 14 It would be grossly unfair to the appellant if, as he claims, a false certificate had been issued by the College because the appellant had not paid disputed fees. As the trial judge observed in his reasons there are avenues through which aggrieved students may seek redress in such circumstances. These include a complaints and appeal process and the making of a complaint to the Overseas Student Ombudsman. Despite having been advised of these avenues, the appellant has not chosen to pursue them. If the position is as he asserts he would be well advised to do so. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 12 May 2015