Qureshi v Minister for Immigration
[2008] FMCA 525
•1 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| QURESHI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 525 |
| MIGRATION – Whether application supported by financial evidence from an acceptable individual – whether letter to applicant corrected an incorrect statement by the Tribunal – financial evidence by acceptable individual not provided – no error demonstrated. |
| Federal Magistrates Court Rules 2001, r.44.12 Migration Act 1958 (Cth), ss.474 Migration Regulations 1994, cls.572, 5A405 |
| Applicant: | MUHAMMAD RIZWAN QURESHI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 813 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 14 March 2008 |
| Date of last submission: | 14 March 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 1 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Naidu |
| Solicitors for the Applicant: | A.R. Naidu |
| Counsel for the Respondents: | Mr. Livermore |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application and the amended application are dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.00 within 14 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 813 of 2007
| MUHAMMAD RIZWAN QURESHI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 9 May 2007 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a Student (Temporary) (Class TU) Visa. The Court make final orders pursuant to Rule 44.12 of the Federal Magistrates Court Rules 2001.
Background
On 27 August 2002 the applicant applied to the Department of Immigration and Multicultural Affairs for a Student (Temporary) Vocation Education and Training (Class TU) Visa subclass 572 in order to for him to complete his studies.
The application was refused by a delegate of the first respondent on
15 October 2002(CB 42-45) and by the Tribunal on review on
2 October 2003(CB 53-63). An application for judicial review was subsequently filed with this Court, and on 28 October 2005 Federal Magistrate Hartnett remitted the matter to the Tribunal to be determined according to law (CB 74). By decision signed on 9 May 2007, the second Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa (CB 7-17).
The matter is now before this Court pursuant to an application for judicial review filed on 14 June 2007, and an amended application filed on 21 February 2008.
Issues for determination
The issues before the Court are as follows:
·Was the applicant alerted to the fact that his sister was not an “acceptable individual” for the purpose of providing required financial evidence?”
·Was the applicant given an opportunity to respond to that issue?
·Was that the critical issue that lead the Tribunal to affirm the decision of the delegate?
The application
In his application, the applicant set out 3 grounds as follows:
“1) Tribunal has not followed its own directions as recorded and instructed to me.
2) Tribunal misled me in providing documents.
3) Natural justice was not done.”
The applicant’s amended application sets out the following grounds and particulars:
“1) The decision of the Migration Review Tribunal (“the Tribunal”) was made without jurisdiction or without according the Applicant procedural fairness.
Particulars
a)The Tribunal applied the wrong Regulation in the hearing and misled the Applicant about a critical issue in the review therefore not complying with section 360 of the Migration Act 1958 (Cth).
b)The Tribunal failed to accord the Applicant procedural fairness in failing to inform the Applicant of the error it made at the hearing.”
The only subclass in respect of which a claim was advanced is subclass 572.
Clause 572.223 of the Migration Regulations 1994 (the “Regulations”) provides relevantly:
“(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a)for an applicant who is not a person designated under regulation 2.07AO:
(i) the applicant gives to the Minister evidence, in accordance with the requirements mentioned in Schedule 5A for Subclass 572 and the assessment level to which the applicant is subject, in relation to:
(A) the applicant's English language proficiency for the purposes of each course of study that the applicant proposes to undertake; and
(B) the financial capacity of the applicant to undertake each of those courses of study without contravening any condition of the visa relating to work; and
(C) other requirements …”
The required financial capacity is set in cl.5A405 of Schedule 5A to the Regulations as follows:
“(1)The applicant must give, in accordance with this clause:
(a) evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 36 months:
(i) course fees;
(ii) living costs;
(iii) school costs; and …”
(2) In this clause:
"acceptable individual" means one or more of the following:
(a) the applicant;
(b) the applicant's spouse;
(c) the applicant's parents;
(d) the applicant's grandparents;
(e) the applicant's brothers and sisters;
(f) an uncle or aunt of the applicant who is:
…
(Note (e) and (f) was added by SR213 of 2002 op 1 Nov 2002 and (f) was added by SR 206 of 2003 op 1 Dec 2003)
funds from an acceptable source" means one or more of the following:
(a)…
a money deposit held by an acceptable individual;
(aa) if paragraph (a) does not apply - a money deposit that an acceptable individual has held for at least the 6 months immediately before the date of the application; …”
Findings of the Court
The issue in this matter is straight forward. Did the letter to the applicant at (CB 93) amend the statement by the Tribunal at the hearing that the applicant’s sister was an acceptable individual for the purposes of providing evidence of financial capacity (Applicant’s Outline of Facts and Contentions of Law, transcript page 24 line 22)?
If the letter corrected the advice, it brought the critical issue on which the Tribunal decided the applicant’s application (CB 17.1) to the applicant’s attention for him to respond to.
Submissions were put for the applicant that the letter at (CB 93) made the applicant aware that his sister was not an “acceptable individual”, and therefore he tried to rectify the matter by stating in his letter at (CB 96) that the money held by his sister was really his mother’s money. This makes it clear that the applicant was aware that the Tribunal was now saying that funds held by his sister were not relevant because she was not an “acceptable individual”. The applicant was advised that the money held by his mother was insufficient…“and that his brother and sister were not “acceptable individuals.”
Having regard to the letters at (CB 93 and CB 96) the Court decides that the advice given to the applicant at the Tribunal hearing about his sister being “acceptable” was amended by the letter at (CB 93), and that the applicant was aware of the issue and was given an opportunity to respond. The applicant was told that the money held by his mother was “insufficient”… and that his “brother and sister do not meet the definition of acceptable individual”. The applicant failed to show the required financial capacity and therefore did not meet criteria for a visa. The applicant was not denied procedural fairness.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and the amended application are dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 1 May 2008
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