Singh v Minister for Immigration & Anor [2011] FMCA 1049 (22 December 2011)

Last Updated: 9 February 2012

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 1049

MIGRATION – Application to review Registrar’s decision – no proper ground of review – application dismissed.

Migration Act 1958 (Cth), s.474(2) Migration Regulations 1994 (Cth), Sch.8 Condition 8202 Federal Magistrates Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)

Applicant:

PRATAP SINGH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1362 of 2011

Judgment of:

Hartnett FM

Hearing date:

22 December 2011

Delivered at:

Melbourne

Delivered on:

22 December 2011

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondents:

Mr McKenna

Solicitors for the Respondents:

Clayton Utz

THE COURT ORDERS THAT:

(1) The Court grants leave to the Applicant to amend his Application filed 24 November 2011 to be an application pursuant to r.16.05(2)(a) of the Federal Magistrates Court Rules 2001 (Cth).
(2) The Application filed 20 September 2011 and the Application filed 10 November 2011 are dismissed.
(3) The Applicant pay the Respondent’s costs fixed in the sum of $1,814.
(4) The costs order number 2 of Orders made 2 November 2011 is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 1362 of 2011

PRATAP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 20 September 2011 the applicant filed an application seeking review of a decision of the Migration Review Tribunal dated 21 August 2011. In support of that application, the applicant filed an affidavit sworn by him on 20 September 2011. He swore in that affidavit that he was “not really satisfy (sic) with the justice of Migration Review Tribunal” and that he wanted to discuss some more information regarding his subclass 572 visa. He wished to review “one more time” with this Court.
2. Annexed to the affidavit sworn 20 September 2011 was the decision record of 21 August 2011 of the Migration Review Tribunal. In the application itself, the grounds set out by the applicant were as follows:

“1. When I finished my advance diploma in hospitality, I applied for visa for further education, subclass 572.

2. Due to the few month gap immigration refused student visa.

3. Under the Migration Review Tribunal they did not grant my visa, so I want to file my application to consider one more time my visa status and education.”

3. The first respondent filed a response to application on 30 September 2011 opposing the application on the grounds that the Migration Review Tribunal decision dated 21 August 2011 was not affected by jurisdictional error and was, therefore, a privative clause decision within the meaning of s.474(2) of the Migration Act 1958 (Cth).
4. The matter then came on for a directions hearing before Registrar Caporale on 2 November 2011. On that occasion, the applicant failed to appear. The Registrar ordered that, pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth), the application filed on 20 September 2011 be dismissed and further, that the applicant pay the first respondent’s costs fixed in the sum of $1,250.
5. I shall dismiss the costs order made on 2 November 2011. I do so on the basis that the applicant was not present at the hearing as he was ill for the single day, it appears, from a medical certificate purportedly by Dr Ngoc-Chi Nguyen of St Albans. That medical certificate states that the applicant was unfit for work/school from 2 November 2011 to 2 November inclusive. The medical certificate fails to inform the nature of the illness but nevertheless provides some evidence, albeit very limited, that the applicant could not attend on 2 November 2011.
6. Counsel for the first respondent argues today however that notwithstanding my finding that the applicant was unable to attend on 2 November 2011, that when looking to the grounds of the application filed 20 September 2011 and when looking to the Migration Review Tribunal decision itself, it would be futile to allow these proceedings to continue beyond this date. The application itself sets out no proper ground of review of the Migration Review Tribunal decision that could possibly succeed. I agree that is the case.
7. The applicant, in submissions made this day on a hearing of his application, merely restates those matters which he put before the Tribunal member; in particular, as to the six-month period in which he was not enrolled as a student in this country. He concedes this day, as he did before the Tribunal, that he completed a diploma level course on 31 March 2011, and commenced the next course of study on 18 October 2011. Thus, for a period of more than six months, he was not enrolled in a registered course while he held a student visa subject to Condition 8202, Schedule 8 of the Migration Regulations 1994 (Cth). The Tribunal discussed with the applicant that the Department of Immigration and Citizenship’s policy relating to acceptable gaps between courses, as set out in the Procedures Advice Manual 3 (and noted in paragraph 28 of the decision) being that the period considered acceptable in that manual is two months. The Tribunal otherwise was not satisfied that the applicant had complied substantially with Condition 8202 of his subclass 572 Vocational Education and Training Sector Visa, and did not accept various of the submissions made by the applicant at the hearing.
8. The applicant, in the course of addressing the Court this day, said that he had felt depressed in the six-month period when he had gone to India to visit his ill mother, and that he was a genuine student supported by his family in this country. Nothing the applicant has said indicates that he has any prospect of success in respect of his application filed 20 September 2011. The findings made by the Tribunal are findings of fact, some adverse to the applicant and all open on the evidence to the Tribunal. None of the applicant’s submissions lead the Court to conclude that a proper ground of review could be established.
9. Accordingly, the application of the applicant filed 20 September 2011. The application filed 24 November 2011 is also dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date: 2 February 2012