Rudra v Minister for Immigration
[2015] FCCA 1214
•6 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RUDRA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1214 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa – applicant unable to satisfy visa requirements – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Regulations 1994 (Cth) |
| Asif v Minister for Immigration (2011) 197 FCR 235 |
| Applicant: | UDAY KIRAN RUDRA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 248 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 6 May 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 6 May 2015 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms V Greenslade of Australian Government Solicitor |
ORDERS
The application filed on 8 July 2014 be dismissed, pursuant to rule 16.01 of the Federal Circuit Court Rules 2001 (Cth).
The Applicant do forthwith pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 248 of 2014
| UDAY KIRAN RUDRA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 11 June 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Rudra, a temporary student visa. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 28 April 2015.
On 20 August 2012, Mr Rudra lodged an application for the visa.[1]
[1] Court Book (CB) 6-12.
On 21 August 2012, an officer from the Minister’s Department wrote to Mr Rudra requesting further information, including financial documents, which was provided by Mr Rudra on 14 and 18 September 2012.[2]
[2] CB 13-20.
On 25 September 2012, the Departmental officer wrote to Mr Rudra to provide him with an opportunity to comment on adverse information, namely the detailed investigations which were undertaken on 24 September 2012 by the Australian High Commission in New Delhi with Andhra Bank.[3] Mr Rudra provided further information on 28 September 2012.[4]
[3] CB 21-23.
[4] CB 24-25.
On 24 October 2012, a delegate of the Minister refused the visa application on the ground that Mr Rudra did not satisfy the requirements under clause 572.223(2)(a)(i) and clause 5A405 of the Migration Regulations 1994 (Cth) (Regulations).[5]
[5] CB 26-28.
On 13 November 2012, Mr Rudra applied for review of the delegate's decision by the Tribunal.
On 24 April 2014, the Tribunal invited Mr Rudra to appear before it to give evidence and present arguments relating to the issues arising in his case. The Tribunal also requested further information including evidence that Mr Rudra had sufficient funds, or access to them, to cover various costs.[6]
[6] CB 29-31.
Mr Rudra provided further information on 21 May 2014.[7] Mr Rudra appeared at the scheduled hearing on 28 May 2014.[8]
[7] CB 20 and 25.
[8] CB 34-37.
On 11 June 2014, the Tribunal affirmed the decision under review on the basis that Mr Rudra did not satisfy clause 572.223(2)(a) as he had not provided evidence in accordance with Schedule 5A.[9]
[9] CB 38-44.
On 8 July 2014, Mr Rudra applied for judicial review of the Tribunal's decision in this Court.[10]
[10] CB 1-5.
The Tribunal’s decision
In its decision dated 11 June 2014, the Tribunal identified that the issues before it were whether Mr Rudra was a “genuine applicant for entry and stay as a student” and could satisfy the requirements contained in clause 572.223 of Schedule 2 to the Regulations.[11]
[11] at [6].
The Tribunal noted that while Mr Rudra had not provided evidence of a current enrolment, he told the Tribunal that he intended to study a Diploma of Management which required a subclass 572 visa.[12] It therefore found that, as Mr Rudra held an Indian passport, he fell within assessment level 4, which meant that he was required to satisfy clause 5A405 of Schedule 5A to the Regulations to be eligible for the grant of the visa.
[12] at [6].
The Tribunal’s decision record noted that at the hearing, when asked about whether he was currently enrolled, Mr Rudra “provided vague and rambling answers referring to two COE’s that had been provided with his application, one of which had expired and the other had been cancelled for non-commencement of studies”. The Tribunal was not satisfied that Mr Rudra was enrolled in a registered course.[13]
[13] at [13].
In relation to the financial evidence, which the Tribunal observed was the same as that provided with the application, the Tribunal informed Mr Rudra that it was concerned that he did not satisfy the financial requirements. Mr Rudra confirmed that he had no further evidence.[14]
[14] at [15]-[16].
In determining whether Mr Rudra met the evidentiary requirements, the Tribunal indicated that it shared the delegate’s concern that “enquiries by the overseas post indicated that the funds provided are not available to the Applicant”.[15]
[15] at [17].
Accordingly, the Tribunal found that, as there was no evidence before it in accordance with the Schedule 5A requirements, Mr Rudra could not meet the requirements of clause 572.223(2)(a). The Tribunal affirmed the decision under review.[16]
[16] at [19].
The present proceedings
These proceedings began with a show cause application filed on 8 July 2014. Mr Rudra continues to rely upon that application. There are three grounds in the application which are reproduced at [17] of the Minister’s submissions:
1. I think I didn’t got the right decision.
2. They didn’t let me talk.
3. I seek better justice. (errors in original)
The application is supported by a short affidavit, which I received as a submission. In the affidavit, Mr Rudra says that he feels the decision by the Tribunal is unfair and that he seeks justice.
I have before me, as evidence, the court book filed on 29 August 2014.
Only the Minister complied with the Court’s orders for the filing of written submissions. I invited oral submissions from Mr Rudra today. He reiterated that he considers that the situation he is confronted with is unfair and that he seeks justice. He asserted that he was interrupted by the presiding member at the Tribunal hearing. However, there is no evidence before me to support that assertion. He also said that he had sought more time to submit documents to the Tribunal concerning his financial circumstances. That is contradicted by [16] of the Tribunal’s decision.[17] When I put that contradiction to Mr Rudra, he conceded that his memory could be faulty. Mr Rudra explained to me the difficulties he has encountered in attempting to undertake and complete his desired courses of study in the seven years he has been in this country. While those difficulties may evoke sympathy, they do not point to any jurisdictional error by the Tribunal. I agree with the Minister’s submissions that the grounds advanced by Mr Rudra do not point to, let alone establish, any jurisdictional error by the Tribunal.
[17] CB 40.
The making of a finding of fact is a matter within the Tribunal’s jurisdiction, and cannot give rise to jurisdictional error, unless the Tribunal approaches the task of fact finding in a way that is legally impermissible.[18]
[18] see Asif v Minister for Immigration (2011) 197 FCR 235 at [39].
In relation to the financial evidence, Mr Rudra was specifically requested by the Tribunal, by letter dated 24 April 2014, to provide “evidence of funds from acceptable sources [and] if you seek to rely on a money deposit, you may need to show how long the deposit was held immediately before the date of your visa application.” In response, Mr Rudra provided the same evidence which was provided with his application before the delegate. In the absence of fresh and relevant evidence, it was therefore open to the Tribunal, based on the evidence before it, to find that Mr Rudra did not have the funds required to satisfy clause 5A405.
In relation to Ground 2, Mr Rudra appeared at the hearing on 28 May 2014 and the Tribunal’s decision record indicates that he was given an opportunity to give evidence and present arguments in support of his application for review.
Ground 3 is not, on any reading, anything but a statement of intention.
Mr Rudra has been unable to establish that the Tribunal decision is effected by any jurisdictional error. It is, therefore, a privative clause decision and the application must be dismissed. I make that order on a final basis.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale as it applied when the application was filed. Mr Rudra does not oppose an order for costs in principle but indicated that he might require time to pay. That is a matter that he can take up with the Minister’s Department or his lawyers.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,646.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 12 May 2015
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