Charanjit Singh v Minister for Immigration and Citizenship

[2012] HCASL 88

CHARANJIT SINGH

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2012] HCASL 88
M23/2012

1. A delegate of the first respondent refused to grant the applicant a subclass 573 Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth). The ground of refusal was that the applicant did not meet the criteria for establishing that he had sufficient financial capacity specified in the Migration Regulations 1994 (Cth).

2. The Migration Review Tribunal ("the Tribunal") upheld the delegate's decision.  In order to satisfy the financial capacity criteria, the applicant relied on funds held in a bank account in favour of his father, who was his sponsor, and on an overdraft which the father had arranged against those funds, which took the form of a fixed deposit.  The father said that the source of the fixed deposit was in part a loan from a commission agent and in part funds raised from the sale of land.

3. Officials of the Australian High Commission in New Delhi informed the Tribunal that these arrangements were not genuine.  In part, this was because the source of some of the funds was evidenced by an unregistered agreement to sell land.  In part, this was because some of the funds derived from a loan from a commission agent which was repayable on demand.  If repayment was demanded, the applicant would be without funds.  The Tribunal did not accept the truth of a belated claim by the applicant's father to the effect that there was no loan from a commission agent, but that he owned the funds independently of any loan.

4. The Federal Magistrates Court (Riethmuller FM) dismissed an application for judicial review.  Riethmuller FM rejected the applicant's contention that the Tribunal had failed to take relevant considerations into account, and had taken irrelevant considerations into account.

5. The Federal Court of Australia (Kenny J) dismissed an appeal.  Her Honour agreed with Riethmuller FM.  Kenny J correctly concluded that in substance the applicant was seeking fresh factual findings from the courts in substitution for the Tribunal's findings.

6. In the applicant's application for special leave to appeal to this Court, he "claims that proofs of land sales to fund his education were not taken into consideration."  That is the totality of what he submits.  In truth, the Tribunal did take into account the applicant's claims, but did not assign significance to the supposed land sale for want of registration.  The proposed appeal would have no prospects of success.

7. The application is dismissed.

8. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
20 June 2012 V.M. Bell