SHAMSHER Singh v Minister For Immigration And Border Protection & Anor

[2015] HCASL 160

SHAMSHER SINGH

v

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR

[2015] HCASL 160
M85/2015

1. The applicant, a citizen of India, held a student visa that was valid until 15 March 2012. On 2 April 2012, a delegate of the first respondent refused to grant a further Student (Temporary) (Class TU) visa on the basis that the applicant had failed to satisfy cl 572.235 of Sched 2 to the Migration Regulations 1994 (Cth) ("the Regulations"), which required the applicant to have complied substantially with the conditions of the last of any substantive visas that he had held.

2. On 20 September 2013, the Migration Review Tribunal ("the Tribunal") affirmed the decision of the delegate. The Tribunal found that the applicant's education provider had issued a notice ("the Section 20 Notice") certifying that the applicant had not achieved satisfactory course progress. The absence of such a notice was a condition of the applicant's previous visa. On that basis, the Tribunal was not satisfied that the applicant satisfied cl 572.235 of Sched 2 to the Regulations and therefore affirmed the decision not to grant to the applicant a Student (Temporary) (Class TU) visa.

3. On 23 January 2015, the Federal Circuit Court of Australia (Riethmuller J) dismissed an application for judicial review of the Tribunal's decision.  Riethmuller J held that the fact that the Section 20 Notice had been issued in respect of the applicant was conclusive for the purposes of the Department of Immigration and Citizenship (as it then was), and that the applicant's ground of review did not articulate any question of law, but rather sought merits review which is not open in judicial review proceedings.

4. On 12 May 2015, the Federal Court of Australia (Tracey J) dismissed the applicant's appeal.  Tracey J held that the applicant failed to identify any jurisdictional error on the part of the Tribunal that would have warranted the intervention of the Federal Circuit Court, or any appellable error in the decision of the Federal Circuit Court. 

5. The applicant applies for special leave to appeal to this Court.  There is no reason to doubt the correctness of the decision of the Federal Court; an appeal to this Court would have no prospect 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
15 October 2015 P.A. Keane