KIRANDIP Kaur & Anor v Minister for Immigration and Border Protection

[2014] HCASL 100

KIRANDIP KAUR & ANOR

v

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR

[2014] HCASL 100
M3/2014

1. The applicants, a wife and husband, are citizens of India.  On 13 April 2011, each of the applicants applied for a Student (Temporary) (Class TU) visa based on the first applicant's enrolment in a relevant course of study.  Their applications were refused by a delegate of the first respondent on 18 May 2011.

2. On 12 November 2012, the Migration Review Tribunal ("the Tribunal") affirmed the delegate's decision. The Tribunal found that the first applicant had not provided evidence of her financial capacity in the period prior to the application, as required by the Migration Regulations 1994 (Cth).

3. On 1 August 2013, the Federal Circuit Court of Australia (Burchardt J) dismissed an application for judicial review of the Tribunal's decision.  No ground had been articulated as to why the Tribunal's decision was in error.  Burchardt J held that the Tribunal's decision was clearly correct.

4. On 13 December 2013, the Federal Court of Australia (Mortimer J) dismissed the applicants' appeal from Burchardt J's decision. The applicants' sole ground of appeal was that the Tribunal had contravened its obligations under s 359A of the Migration Act 1958 (Cth) by not disclosing to the applicants that the evidence they relied on was flawed in a way that was fatal to the success of their applications. Although this argument had not been put below, Mortimer J held that it was appropriate to consider it on appeal. Nonetheless, her Honour concluded that the Tribunal had not contravened its obligations in this respect. The Tribunal's conclusion that the material presented by the applicants was incapable of meeting the relevant visa criteria was the product of the Tribunal's reasoning process and was not "information" that it was obliged to disclose under s 359A.

5. The applicants now seek special leave to appeal to this Court.  Their application does not raise any question of law that would justify a grant of special leave.  An appeal to this Court would enjoy no prospects of success.  Special leave is refused.

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

S.M. Kiefel
19 June 2014 P.A. Keane