FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration and Border Protection [2016] FCA 912 Appeal from: Application for extension of time: Singh v Minister for Immigration & Anor [2016] FCCA 624 File number: SAD 115 of 2016 Judge: BESANKO J Date of judgment: 9 August 2016 Catchwords: MIGRATION – application for extension of time to appeal from orders of Federal Circuit Court – where Federal Circuit Court dismissed applicant's application for judicial review of a decision made by Migration Review Tribunal – where Tribunal affirmed a decision of the Minister's delegate to cancel the applicant's Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa – where applicant had breached a visa condition by not being enrolled in a relevant course – whether proposed appeal has any realistic prospects of success – application refused. Legislation: Federal Court Rules 2011 (Cth) rr 36.03, 36.05 Migration Act 1958 (Cth) s 116 Migration Regulations 1994 (Cth) regs 1.04, 1.04A, Sch 2, cll 573.223, 573.231 Date of hearing: 4 August 2016 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr P d'Assumpcao Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent entered a submitting notice, save as to costs ORDERS SAD 115 of 2016 BETWEEN: BHAGWAN SINGH Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BESANKO J DATE OF ORDER: 9 AUGUST 2016 THE COURT ORDERS THAT: 1. The applicant's application for an extension of time dated 29 April 2016 be dismissed. 2. The applicant pay the first respondent's costs fixed in the sum of $1,756.00. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BESANKO J: 1 This is an application for an extension of time within which to appeal from orders made by the Federal Circuit Court on 4 April 2016 (Singh v Minister for Immigration & Anor [2016] FCCA 624). The applicant lodged his application for an extension of time on 29 April 2016. The application was supported by an affidavit affirmed by the applicant on the same day. The Federal Court Rules 2011 (Cth) provide that a notice of appeal must be filed within 21 days after the date on which the order was made. The time for filing a notice of appeal may be extended (rr 36.03 and 36.05). The proposed appeal is four days out of time. 2 The first respondent, the Minister for Immigration and Border Protection, does not claim any prejudice as a result of the applicant's delay in instituting his appeal. At the same time, the applicant has not addressed the reasons for his delay in his affidavit. I have considered the merits of the proposed appeal, and I do not think that the appeal has any realistic prospect of success. I refuse the extension of time on this ground. 3 The matter before the Federal Circuit Court was an application for judicial review of a decision of the Migration Review Tribunal ("the Tribunal") made on 9 April 2015. The Tribunal decided to affirm a decision of a delegate of the Minister for Immigration and Border Protection to cancel the applicant's Student (Temporary) (Class TU) Higher Education Sector visa (subclass 573). The applicant sought an order from the Federal Circuit Court quashing the Tribunal's decision on the basis that the Tribunal had committed a jurisdictional error. The Federal Circuit Court decided that the Tribunal had not committed a jurisdictional error and on 4 April 2016 it made an order that the applicant's application be dismissed. 4 The background to the applicant's application for an extension of time is as follows. 5 On 13 September 2013, the applicant was granted a subclass 573 visa. He arrived in Australia on 24 September 2013. He was involved in a motor vehicle accident in November 2013. The applicant's enrolment in the Higher Education Sector course was cancelled on 21 May 2014. 6 On 23 September 2014, a delegate of the Minister decided to cancel the applicant's subclass 573 visa under s 116(1)(b) of the Migration Act 1958 ("the Act"). The delegate made his decision on the basis that the applicant had breached condition 8516 of the visa as he was no longer enrolled in a bachelor's degree or master's degree course, and was not enrolled in a course of study that was the principal course of a type specified for subclass 573 visas by the Minister in an instrument made under reg 1.40A of the Migration Regulations 1994 ("the Regulations"). 7 The applicant lodged an application for review by the Tribunal and, on 8 April 2015, he appeared before the Tribunal to give evidence and present arguments. He was assisted by an interpreter in the Punjabi and English languages. 8 Section 116 of the Act, as at the time of the delegate's decision, relevantly provided: (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: … (b) its holder has not complied with a condition of the visa; … (3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. … 9 The Tribunal found that condition 8516 was attached to the applicant's visa and that the condition required the visa holder to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. Condition 8516 requires the applicant to continue to be enrolled in, or the subject of a current offer of enrolment in, a course of study that is a principal course as required by cl 573.231 of Schedule 2 to the Regulations. The principal course is of a type that is specified for subclass 573 visas by the Minister in an instrument made under reg 1.40A and in force at the time the application was made. 10 The Tribunal explained (at [8]) that reg 1.40 provides the definition of "principal course". Relevantly, where an applicant for a student visa proposes to undertake two or more courses of study that are registered courses, and either: one of the courses of study (course A) is a prerequisite to another of the courses (course B); or one of the courses of study (course B) may be taken only after completion of another of the courses (course A); course B, not course A, is the principal course. 11 At the time of the delegate's decision, the applicant's enrolment was in a Vocational Education Training Sector course, being a Diploma of Technology (later renamed to Diploma of Engineering) undertaken with the South Australian Institute of Business Technology ("SABIT"). The applicant said that he understood this is not a Higher Education Sector course that is specified for a subclass 573 visa as it is in the Vocational Education and Training Sector, but that it would lead to such a course. The applicant said that he was experiencing difficulties in progressing satisfactorily with this course following his involvement in a motor vehicle accident on 27 November 2013 in which he suffered a head injury which required stitches/staples and medication for pain relief and for stress. The applicant told the Tribunal that for this reason he sought and applied for a Student (Temporary) (Class TU) Vocational Education and Training Sector visa (subclass 572), but his application was unsuccessful. 12 The applicant confirmed before the Tribunal that he had not remained enrolled in any Higher Education Sector course type that is specified for subclass 573 visas. The Tribunal found that the applicant did not satisfy condition 8516 of the visa as he was not enrolled in, or was the subject of a current offer of enrolment in, a course of study that is a principal course as required by cl 573.231 or otherwise satisfied cl 573.223(1A). The Tribunal found that the ground for cancellation in s 116(1)(b) was made out and that it was required to consider whether the visa should be cancelled. The Tribunal noted that s 116(3) (the Minister must cancel the visa if prescribed circumstances exist) was not engaged. The Tribunal considered the exercise of the discretion by reference to (but not limited to) the Department's Procedures Advice Manual PAM 3 (general visa cancellation powers). The Tribunal noted that the applicant arrived in Australia on 27 September 2013 on a subclass 573 visa granted on 13 September 2013. That visa ceased on 23 September 2014 when it was cancelled. The Tribunal noted that the applicant had ceased to be enrolled in a registered course and, indeed, has not remained enrolled in any Higher Education Sector course type that is specified for subclass 573 visas. The Tribunal considered a period of more than one year to be a lengthy period with no further successful study. In fact, the applicant had stated a clear intention not to remain in the Higher Education Sector course specified for subclass 573 visas as he wished to change to a lower level course, but was not so enrolled. The Tribunal made reference to the applicant's particular circumstances, including his stated reasons of depression or stress and difficulties following the motor vehicle accident in November 2013. The Tribunal accepted the applicant's oral evidence that, as his medical condition had improved, he ceased prescribed medication some eight months following the accident, and also he was able to complete successfully at least one semester of study for the Diploma of Technology undertaken with SABIT during the period October 2013 to February 2014. The Tribunal did not accept the applicant's evidence that he could not concentrate on his studies, and the Tribunal said there was no reason why he could not continue in his planned studies for the subclass 573 visa. 13 The Tribunal addressed the question of hardship to the applicant or others if the visa was cancelled. The applicant said that he would suffer embarrassment should he return to his home in India without an educational qualification from Australia. The Tribunal reached the view that there would not be any consequential cancellations. The Tribunal concluded its reasons by saying it was not satisfied that the applicant had been fulfilling the purpose of his travel to and stay in Australia, and that it placed substantial weight on this factor. The Tribunal said that this, together with the other factors discussed above, outweighed any considerations in favour of not cancelling the applicant's visa. 14 The two grounds which the applicant raised in support of his application for judicial review were in essence: (1) the Tribunal committed a jurisdictional error in not placing sufficient weight on documents the applicant provided relating to his motor vehicle accident and subsequent hospitalisation; and (2) the Tribunal committed a jurisdictional error in not placing sufficient weight on his "situation" meaning his personal circumstances since arriving in Australia. The applicant identified as his personal circumstances the fact of his motor vehicle accident, the impact of the injuries he sustained as a result of the accident, the role those matters played in his withdrawal from higher education studies and the subsequent decision to change the direction of his studies and apply for a subclass 572 visa. 15 The applicant appeared in person before the Federal Circuit Court. His submissions focussed on his involvement in the motor vehicle accident in November 2013 and its effects on his capacity. He claimed that the Tribunal had not placed enough weight on these matters. 16 The Federal Circuit Court judge held that the power to cancel the applicant's visa had been engaged. He dismissed the first ground of the applicant's application for judicial review on the basis that it was for the Tribunal to determine the weight it placed on the applicant's documents about the accident and, in any event, the documents did not advance the applicant's case beyond the Tribunal's findings. The Tribunal found that the accident occurred and that the applicant suffered injury. The Federal Circuit Court judge also held that it was open to the Tribunal to reject the applicant's case that the accident and its consequences provided a satisfactory explanation of the applicant's failure to continue his studies after February 2014. 17 Finally, the Federal Circuit Court judge rejected a submission which emerged during the applicant's oral submissions that the Tribunal was required to carry out its own inquiries about the accident. His Honour did so on the basis that there was no general duty on the Tribunal to make inquiries, and as far as this particular case was concerned, there was nothing to suggest that information from the police about the accident related to a critical fact, and there was nothing to suggest that the applicant had asked the Tribunal to make further inquiries of South Australian police. 18 The applicant appeared in person before me. The proposed grounds of appeal, should an extension of time be granted, are the same as the applicant's grounds of his application for judicial review before the Federal Circuit Court. In his oral submissions, his main complaint was that the Tribunal failed to obtain a copy of the police report in relation to his accident and that his injuries were more severe than is reflected in the Tribunal's reasons. 19 There is no substance in these complaints for the reasons given by the Federal Circuit Court judge which I have summarised. As the applicant appears in person, I have also carefully considered the Tribunal's reasons and, in particular, its reasons concerning the motor vehicle accident and its consequences for the applicant. The Tribunal summarised the applicant's evidence. It noted that he had been in a motor vehicle accident and that he experienced some difficulties following it. However, he had successfully completed at least one semester of study for the Diploma of Technology undertaken with SABIT during the period from October 2013 to February 2014. He ceased taking prescribed medication for pain relief and his mental health problems within eight months of the accident. I think it was open to the Tribunal to find (as it did) that it did not accept that the applicant could not concentrate on his studies, and that there was no reason why he could not continue in his planned studies for the subclass 573 visa. 20 In my opinion, the proposed appeal has no realistic prospect of success and, in those circumstances, the application for an extension of time should be refused. The applicant should pay the first respondent's costs fixed in the sum of $1,756.00. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 9 August 2016