Singh v Minister for Immigration

[2015] FCCA 1345

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1345

Catchwords:

MIGRATION – Migration Review Tribunal – Student (Temporary) (Class TU) visa – procedural fairness – whether the Tribunal had failed to put adverse findings to the applicant – no jurisdictional error.

PRACTICE AND PROCEDURE – Application dismissed.

Legislation:  

Migration Act 1958, s.476

Applicant: AMAN PAL SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 305 of 2014

Judgment of: Judge Street

Hearing date: 18 May 2015

Date of Last Submission: 18 May 2015

Delivered at: Adelaide

Delivered on: 18 May 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms C. Stokes
Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 305 of 2014

AMAN PAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of The Tribunal made on 23 July 2014 affirming a decision not to grant the applicant a Student (Temporary) (Class TU) visa.  The application identifies the following grounds:

   1. My visa is refused on 12 Sep 2012 and then I apply for MRT. They refuse my visa because they said they didn’t find my mails and then Tribunal member said that funds are not genuine. Sir I am struggling both of time when there is not my fault.

   I studied in Adelaide from last 3 years I complete my studies in Cert III in Automotive and Diploma in Business. I am wondering why member told me that I am genuine.

   As far as funds, sir my father support me through out my studies, you can see my previous records. But Sir member took a decision that FD’s were only three months duration and Member believed that these will be withdrawn, if the visa granted.

   Sir my Father gives a affidavit that FD’s are remain unmatured during my studies and my parents recently sold our property to Mr RANJIT SINGH who given the another money and send in a $160000 in my account for my living expenses.

2. I accept the submissions of the first respondent that the grounds fail to identify any arguable jurisdictional error. The applicant has applied for an adjournment on the basis that he wishes to obtain funds to get a lawyer to attend on his behalf.  The application clearly fails to disclose any arguable case and there is no utility in granting an adjournment when proceedings are clearly doomed to failure.  To do so only increases the costs of the parties and utilises limited Court time.  I am clearly satisfied that these proceedings are doomed to failure and that there is no utility in granting any adjournment.

3. The applicant applied for the visa on 12 September 2012, which was refused by the delegate on 31 October 2012.  The Tribunal identified the relevant law applicable to the visa application.  On 24 April 2014 the Tribunal wrote to the applicant and invited him to attend a hearing by telephone scheduled for 28 May.  In addition to the invitation to a hearing, the letter invited the applicant to provide certain evidence to enable the Tribunal to make an informed decision.  On 22 May 2014 the Tribunal received a submission which included certain material.  The applicant appeared before the Tribunal by telephone on 28 May 2014 to give evidence and present arguments and was assisted by a migration agent.

4. The reasons record:

   31. The Tribunal told the applicant that on the financial evidence presented it was not satisfied he had genuine access to funds as required. However told the applicant it would not make a decision for at least a week and would consider any evidence provided before the decision was made.

   32. In response to a question by the applicant as to what he should do now, the Tribunal suggested that he provide further evidence that he satisfies the requirements for the grant of a visa or he could await a decision which on the evidence presented the Tribunal warned would not be favourable. The applicant said that he had $16,000 currently in the bank and he would provide evidence that he met the financial capacity requirements.

5. It was in those circumstances that the Tribunal found:

   35. The delegate found that the applicant had not provided evidence of financial capacity and therefore did not meet an essential element of cl.572.223 required for the grant of a student visa.

   On the basis of the evidence before it, the Tribunal finds that the applicant is enrolled in a Certificate IV in Automotive Mechanical Diagnosis, a Diploma of Automotive Technology and a Diploma of Marketing . The Tribunal finds that the applicant’s principal course is a Diploma of Marketing which was specified for Subclass 572 by the Minister in the relevant instrument under r.1.40A of the Regulations. Accordingly, the relevant subclass for this review is Subclass 572. The Tribunal finds that the applicant is not a person designated under r.2.07AO of the Regulations and that he holds an eligible passport of India and the relevant assessment level is Assessment Level 4.

   36. To be eligible for the grant of a visa, an applicant must meet a number of requirements detailed in the regulations. One of the requirements is that the applicant needs to provide evidence he satisfies the Schedule 5A requirements detailed in 5A405, by providing evidence he has funds available and will have access to those funds to support study and living expenses while studying in Australia

   37. With the invitation to the hearing, the Tribunal pointed out the need for the applicant to provide such evidence.

   46. On the basis of the above, the Tribunal finds that the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 572 and the assessment level to which he is subject, in relation to necessary financial capacity, accordingly, the applicant does not satisfy the requirements of cl.572.223(2)(a)(i).

   47. For the reasons given above, the Tribunal is not satisfied that the applicant meets an essential requirement of cl.572.223 of Schedule 2 to the Regulations. As explained earlier in these reasons, the subclass of Student visa that can be granted to an applicant is determined by the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course. The relevant subclass in this case is Subclass 572. As the Tribunal has found the applicant does not meet cls.572.223, it follows that the applicant cannot be granted a visa of that subclass. As no evidence has been provided on which the Tribunal could be satisfied that the applicant meets the criteria for any of the other Student (Temporary)(Class TU) visa subclasses, the decision under review must be affirmed.

6. I am satisfied that the applicant had a genuine hearing.  I am satisfied that the adverse findings were open on the material before the Tribunal.  I am clearly satisfied the proceedings fail to identify any jurisdictional error and are doomed to failure and that there is no utility in granting an adjournment for the reasons identified. The application is dismissed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  21 May 2015