KAUR v Minister for Immigration

[2014] FCCA 1733

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1733

Catchwords:
MIGRATION – Where applicant was secondary applicant for grant of student (Temporary) (Class TU) visa – where primary applicant failed – where primary applicant’s application for review of tribunal’s decision failed – were no separate grounds advanced – application for review dismissed.

Legislation:

Migration Regulations 1994, condition 8202(2)

Federal Circuit Court Rules 2001, r.44.15(1)

Singh v Minister for Immigration & Anor [2014] FCCA 1731

Applicant: KARAMJIT KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 303 of 2014

Judgment of: Judge Jarrett

Hearing date: 31 July 2014

Date of Last Submission: 31 July 2014

Delivered at: Brisbane

Delivered on: 7 August 2014

REPRESENTATION

The applicant appeared in person

Solicitor for the first respondent: Ms Kelly

Solicitors for the first respondent: Clayton Utz

The second respondent entered a submitting appearance

ORDERS

1. The application filed on 3 April, 2014 is dismissed.

2. The applicant pay the first respondents costs of and incidental to the application fixed in the sum of $2500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 303 of 2014

KARAMJIT KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant applies for judicial review of a decision of a migration review tribunal which affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a student (Temporary)(Class TU) visa.

2. The first respondent opposes the application and seeks orders dismissing the application with costs in accordance with rule 44.15(1) and Part 3, Division 1, Item 3 of Schedule 1 to the Federal Circuit Court Rules2001.

3. The applicant’s husband at the time (they are now divorced apparently) was a primary applicant for a student visa, and the applicant in this matter was a secondary applicant based upon his application.  Because his application was refused, so was hers.  He has separately sought a review of the decision of the tribunal to refuse his application (BRG 309 of 2014).  I have delivered separate reasons for judgment dismissing his application.

4. Despite directions to do so, the applicant has not filed any written submissions in support of her application. 

Background

1. The applicant’s husband, Mr Jaswinder Singh applied for a student (Temporary)(Class TU) visa on 21 September, 2012 with the applicant listed as the secondary applicant.

2. The first respondent’s delegate refused the visas on 11 December, 2012.  The visa applicants applied for a review of that decision by a migration review tribunal.

3. The tribunal constituted to hear the review held a hearing on 9 January, 2014 with the assistance of an interpreter in Punjabi.  Both the applicant and her husband were represented by a migration agent, who did not attend the hearing.

4. The tribunal determined that the applicant’s husband was not entitled to be granted the visa for which he had applied because he had not substantially complied with a condition of the last substantive visa held by him and he did not establish that he was enrolled in or was the subject of a current offer of enrolment in any course of study.  The tribunal needed to be satisfied of the existence of both of those matters before it could grant the visas applied for by the applicants.  I have dealt with these matters and the tribunal’s decision in the reasons for judgment I delivered in Singh v Minister for Immigration and Border Protection & Anor [2014] FCCA 1731.

5. Because the applicant’s husband could not satisfy some of the criteria necessary for the grant of the visa sought by him, and because she advanced no independent grounds to the grant of a visa, the applicant could not satisfy the criteria (primary or secondary) for the grant of a student visa.

6. The applicant’s sole ground of review appears to be a complaint that the tribunal made an incorrect factual finding about whether “re-sits” for assignments constituted enrolment in order to satisfy condition 8202(2) of the Migration Regulations 1994.  Her grounds of review set out in her application filed on 3 April, 2014 are in the same terms as the grounds of review set out in her former husband’s application filed on 4 April, 2014.  In the reasons for decision I delivered in Singh v Minister for Immigrationand Border Protection & Anor (above), I concluded that the grounds of review relied upon by the applicant in that case were unmeritorious.  No additional grounds of review are advanced in this application.  This application is equally unmeritorious.

Conclusion

1. The applicant has failed to demonstrate that the tribunal’s decision was affected by jurisdictional error and the application for review filed on 4 April 2014 should be dismissed with costs which the first respondent seeks to be fixed in the sum of $2500.  That sum is appropriate.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 7 August, 2014.

Associate: 

Date:         7 August 2014