FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration and Border Protection [2015] FCA 1122 Citation: Singh v Minister for Immigration and Border Protection [2015] FCA 1122 Appeal from: Application for leave to appeal: Singh v Minister for Immigration and Anor [2015] FCCA 556 Parties: MANINDERBIR SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: SAD 69 of 2015 Judge: BESANKO J Date of judgment: 23 October 2015 Catchwords: MIGRATION – application for leave to appeal from a decision of the Federal Circuit Court – whether the applicant had an arguable case that the decision challenged was wrong – where the applicant was required to be enrolled in, or have an offer to enrol in, a registered course of study – where the applicant failed to provide a certificate of enrolment – Migration Regulations 1994 (Cth) Sch 2, cll 572.223, 572.231, Sch 5 cl 5A405 – Federal Circuit Court Rules 2001 (Cth) r. 44.12. Held: Application refused. Legislation: Federal Circuit Court Rules 2001 (Cth) r 44.12 Federal Court of Australia Act 1976 (Cth) s 24 Migration Regulations 1994 (Cth) Sch 2, cll 572.223, 572.231, Sch 5 cl 5A405 Cases cited: Décor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 39 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 Date of hearing: 7 October 2015 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 26 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr K Tredrea Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent entered a submitting notice, save as to costs IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 69 of 2015 BETWEEN: MANINDERBIR SINGH Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BESANKO J DATE OF ORDER: 23 October 2015 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The name of the second respondent be changed to the Administrative Appeals Tribunal. 2. The application for leave to appeal be refused. 3. The applicant pay the first respondent's costs to be agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 69 of 2015 BETWEEN: MANINDERBIR SINGH Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BESANKO J DATE: 23 October 2015 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 Mr Maninderbir Singh seeks to appeal from a decision of the Federal Circuit Court of Australia ("the Federal Circuit Court") made on 26 March 2015. That Court dismissed an application for judicial review of a decision of the Migration Review Tribunal ("the Tribunal") (Singh v Minister for Immigration and Anor [2015] FCCA 556). The Tribunal had affirmed a decision of the delegate of the Minister for Immigration and Border Protection to refuse the applicant's application for a Student (Temporary) (Class TU) subclass 572 visa. 2 The first respondent submits that Mr Singh requires leave to appeal to this Court because the Federal Circuit Court dismissed Mr Singh's application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) ("the Rules"), and, given that a dismissal under r 44.12(1)(a) is interlocutory in nature, leave is required to appeal to this Court under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Rule 44.12(1)(a) provides that, at a show cause hearing, the Court may dismiss an application if it is not satisfied that the application has raised an arguable case for the relief claimed. The primary judge noted (at [23]) that the Minister sought the dismissal of the application under this rule, and ultimately his Honour came to the conclusion (at [62]) that "Mr Singh has not established that he has an arguable case for the relief sought". I think that it is clear that Mr Singh's application for review was dismissed under r 44.12(1)(a) and it follows that Mr Singh requires leave to appeal to this Court. I will treat the applicant's notice of appeal as an application for leave to appeal. Leave to appeal must be dismissed because any appeal is doomed to fail. Background 3 The applicant, who is a citizen of India, undertook a Diploma of Community Welfare Work at Cambridge International College in Adelaide between July 2008 and July 2011. He then wished to undertake a Diploma of Hospitality at the Salford College. On 19 July 2011, the Cambridge International College provided him with a "Letter of Release" which stated that the applicant's transfer to another registered education provider had been approved. On the same date, the applicant received a letter of offer from the Salford College in its Diploma of Hospitality which was a course which was to run from 1 August 2011 to 1 August 2013. 4 On 27 October 2011, the applicant applied for the visa. The applicant nominated as his intended course of study the Diploma of Hospitality at the Salford College. 5 Applicants for the visa are required to meet a number of criteria at the time of decision, including the criteria in cl 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) ("the Regulations"). That regulation deals with, inter alia, whether the applicant is a genuine applicant for entry and stay as a student, and has the requisite financial capacity. Clause 5A405 of Schedule 5 described the evidence of financial capacity which an applicant was required to provide. 6 In a letter dated 1 November 2011 from the Department of Immigration and Citizenship ("the Department"), as it then was, the applicant was asked to provide evidence of the source of funds used to secure the overdraft referred to in letters advanced by him. On 28 November 2011, the applicant provided an affidavit affirmed from a Mr Balwant Singh which apparently stated that he had purchased land from the applicant's father, and paid part of the purchase price. A response was sent to the applicant via email on 8 December 2011 stating that an affidavit is not an acceptable form of evidence and a sale deed must be provided. On 14 December 2011, an agreement of sale was received by the Department. 7 In her decision, the delegate said that an agreement of sale was not a sale deed and was not acceptable as evidence of the sale of the land, and that this had been explained previously to the applicant. Accordingly, the delegate found that, as the applicant had not provided evidence of an acceptable source of funds, he did not meet the criteria for the grant of the visa and, in particular, cl 572.223(2)(a)ii) and cl 5A405 of the Regulations. The Tribunal Decision 8 On 21 December 2011, the applicant lodged an application for a review of the delegate's decision at the Tribunal. On 20 January 2014, the Tribunal sent a letter to the applicant notifying him that his application had been set down for hearing on 26 February 2014 and requesting him to provide the Tribunal with certain documentation regarding his enrolment and financial capacity, including his certificate of enrolment. The letter also advised the applicant that the member who would be conducting the hearing would be in Melbourne and arrangements were being made for the applicant, who was in Adelaide, to appear by telephone. The Tribunal officer requested that, should the applicant wish to appear in person, he should contact her as soon as possible. 9 On 30 January 2014, the applicant contacted the Tribunal by email to ask that the hearing be postponed to on or after 12 March 2014 as he needed to return to India to assist his brother who was scheduled to have an operation. On 19 February 2014, a second letter of invitation was sent to the applicant advising him that the hearing had been rescheduled for 26 March 2014. However, on 18 March 2014, the applicant contacted the Tribunal to advise that he had had an accident in India and would be unable to return to Australia at the time of the intended hearing. On 20 March 2014, the applicant was advised by letter that the Tribunal agreed to reschedule the hearing for 7 May 2014. 10 On 7 May 2014, the hearing proceeded by telephone and the Tribunal delivered an oral decision affirming the decision of the delegate. On 20 May 2014, the applicant was sent a statement of the Tribunal's reasons. 11 It is clear from the Tribunal's reasons that the applicant did not provide to the Tribunal any current certificate of enrolment or any evidence of enrolment in a registered course. The Tribunal noted that cl 572.231 of the Regulations required that, at the time of the decision, the applicant must be enrolled in, or have an offer to enrol in, a registered course of study. The applicant put forward a number of explanations for failing to produce a current certificate of enrolment. First, he said that he had requested a certificate of enrolment, but the college said that it would not provide a certificate to the applicant until he had obtained a visa. He then claimed that he did not feel comfortable requesting a certificate, and the college needed money to reissue a certificate of enrolment. The applicant stated that if the Tribunal required a certificate of enrolment, he could send it to the Tribunal the next week. 12 The Tribunal noted that it could not consider the issue of whether the applicant met cl 572.223(2)(a)(iii) of the Regulations because the applicant had not provided any current financial documents. The Tribunal indicated that it proposed to consider another issue, namely, whether the applicant was a genuine applicant for entry and stay as a student. With respect to this issue, the Tribunal noted that the applicant said that he came to Australia in April 2008 to study and for no other reason. Despite this, since coming to Australia, the applicant had only completed a two-year Diploma of Community Welfare Work, which he completed in two and a half years, and had not studied since January 2012. The applicant explained that part of the reason that he had not studied since January 2012 was that he had only been in Australia for six or seven months since that time, and, for the remainder of the time, he had been in India. The Tribunal noted that the Department's records showed this to be incorrect, and the applicant had actually spent much longer than six or seven months in Australia since January 2012. When invited by the Tribunal to respond to this information, the applicant stated that he "just had an idea that he didn't stay here long and he didn't calculate it properly". 13 The Tribunal found the applicant's reasons as to why he had not studied since January 2012 to be unconvincing and unpersuasive, and accordingly it was not satisfied that the applicant was a genuine applicant for entry and stay as a student. The Tribunal therefore refused the applicant's request for more time to provide a certificate of enrolment. The Tribunal further noted that the applicant was first asked to provide a certificate of enrolment in the hearing invitation sent to him in January 2014, and these requests were reiterated in the two further invitations issued in February and March 2014. 14 When the Tribunal indicated that it was prepared to make a decision on the application, the applicant claimed that he wanted the hearing to be adjourned so that he could go to Melbourne to give evidence in person as he was not comfortable conducting the hearing by telephone. The Tribunal refused the adjournment and said as follows: 38. The Tribunal noted that the hearing had been going for 40 minutes and it was only when the Tribunal alerted the applicant to the fact it was about to make a decision that he claimed for the first time, that he was not comfortable on the phone, notwithstanding the fact that the Tribunal had asked the applicant at the commencement of the hearing to let it know immediately if there was something he did not understand or he could not hear the Tribunal and he did, in fact, confirm that he could hear the Tribunal clearly and, further, he had not at any time indicated during the hearing that he could not hear the Tribunal. For those reasons, the Tribunal refused the applicant's request for an adjournment. 15 The Tribunal proceeded to affirm the decision of the delegate. In the course of its reasons, it found that the applicant was not a genuine applicant for entry and stay as a student. Ultimately, it refused the application because of the applicant's inability to meet the enrolment requirements for a student visa. The Tribunal member said: 41. With limited exceptions not relevant to this case, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.140A for the subclass at the time of application. 42. Although invited to provide evidence of his current CoE and/or documents that show he is currently enrolled in, or has a current offer of enrolment in, a registered course of study, the applicant failed to do so. Accordingly, there is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met. 43. Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian. The Decision of the Federal Circuit Court 16 On 4 June 2014, the applicant made an application for judicial review of the Tribunal's decision to the Federal Circuit Court. In his application, the ground of review was stated to be that he was a "genuine student" when he applied. The applicant filed an accompanying affidavit to similar effect. On 4 July 2014, the applicant received notification that the application had been listed for hearing on 16 February 2015. The applicant did not file any submissions and appeared in person at the hearing. 17 The Federal Circuit Court found that, in the circumstances that prevailed, the Tribunal's decision to refuse to adjourn the proceedings to enable the applicant to provide a current certificate of enrolment the following week did not amount to a denial of procedural fairness. Those circumstances included the fact that the applicant had been requested to provide information relating to his course enrolment on several occasions, and that the Tribunal said that the applicant was not a credible witness. 18 The Federal Circuit Court also found that it was not unreasonable for the Tribunal to decline to adjourn the hearing to enable the applicant to appear in person in Melbourne, given that the applicant had previously successfully sought to adjourn two earlier hearings without any suggestion that he would prefer to have a face to face hearing. Rather, the applicant had acquiesced in a telephone hearing. Therefore, the Federal Circuit Court found that the Tribunal's reasons did not disclose any jurisdictional error. The Appeal to this Court 19 On 13 April 2015, the applicant lodged his notice of appeal with this Court. As I have said, the applicant ought to have filed an application for leave to appeal, but I will treat his appeal as an application for leave to appeal. 20 The notice of appeal contains the following ground of appeal: ... the main points of my case have been ignored or overlooked as my case was originally refused due to funds factor when I did have funds for case to fulfil financial requirements of the visa but it was not discussed during the last hearing and study gap that have been questioned by the department have not been looked at when I did have release letter and had only 18 days gap from one course t (sic) another. So I request the court to please look into my case. 21 The applicant seeks orders that "Previous court decision to reconsider and quashed" and "Advise Department of Immigration to reconsider my student visa application". 22 Leave to appeal should not be granted unless the decision the applicant wishes to challenge is attended by sufficient doubt to warrant it being reconsidered by an appellate court, and substantial injustice would result if leave were refused supposing the decision to be wrong: Décor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 at 398-400. In my opinion, there is no doubt about the correctness of the decision of the Federal Circuit Court, and leave to appeal should be refused. 23 In his oral submissions, the applicant referred me to the affidavit affirmed by Mr Balwant Singh and submitted that the delegate failed to give due regard to the affidavit in considering whether the applicant had available to him sufficient funding from an acceptable source. However, the applicant did not fail before the Tribunal on the basis of a failure to show sufficient funding. Nor did he fail on the basis of the length of any "study gap" during the period of transfer from Cambridge International College to Salford College. These arguments cannot lead to the finding of any jurisdictional error by the Tribunal or appealable error by the Federal Circuit Court. 24 With respect to the Tribunal's finding relating to the applicant's failure to provide a current certificate of enrolment, the applicant submitted that he did not understand that he needed a new certificate of enrolment. Regardless of the applicant's understanding, the failure to provide a current certificate of enrolment, or other evidence of the applicant's enrolment in a registered course, is necessarily fatal to the outcome of the application because cl 572.231 of the Regulations mandates that the applicant be enrolled in, or have a current offer to enrol in, a registered course. Accordingly, there was no error on the part of the Tribunal in rejecting the applicant's application on the basis that the applicant failed to satisfy cl 572.231 of the Regulations. It may be noted that the applicant did not produce a certificate of enrolment which would satisfy the Regulations, either to the Federal Circuit Court or to this Court. 25 The applicant did not appear to advance before this Court any argument that the Tribunal fell into jurisdictional error by denying the applicant procedural fairness in refusing to adjourn the hearing. In any event, I consider the Tribunal's refusal to grant the applicant an adjournment was reasonable in the circumstances, and the Federal Circuit Court's analysis of this issue was correct (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225). 26 I will make an order that the name of the second respondent be changed to the "Administrative Appeals Tribunal". The application for leave to appeal must be refused. The applicant must pay the first respondent's costs to be agreed or taxed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 23 October 2015