SINGH v Minister for Immigration

[2014] FCCA 2942

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2942

Catchwords:
MIGRATION – Student (Temporary) (Class TU) visa – whether applicant satisfied financial capacity requirements of cl.5A405 of the Regulations – no error in tribunal’s decision.

Legislation:  

Migration Act 1958, cl.5A404, 5A405, 5A405(1A)
Migration Regulations 1994, cl.472.223, 572.223, 572.223(2)

Applicant: NAVDEEP SINGH

First  Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 500 of 2014

Judgment of: Judge Jarrett

Hearing date: 21 November 2014

Date of Last Submission: 21 November 2014

Delivered at: Brisbane

Delivered on: 21 November 2014

REPRESENTATION

The Applicant appeared on his own behalf

Solicitor for the First Respondent: Ms K. Slack

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent enters a submitting appearance

ORDERS

1. The application filed 4 June 2014 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 500 of 2014

NAVDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

ex tempore

1. On 4 June, 2014 the applicant commenced this application seeking orders by way of judicial review in respect of a decision of a migration review tribunal that was made on 26 May, 2014.  In the application, he seeks orders that the tribunal’s decision be quashed and that a writ of mandamus issue so that his application is determined by a tribunal according to law. 

2. The grounds of his application, as set out in his application are as follows:

   1.  It is declared that I the applicant soughts to believe jurisdictional errors have occurred in finding facts whose existence is a condition precedent to jurisdiction deemed as “Jurisdictional fact” doctrine.  This delimiting the scope of judicial review.  The tribunal has not considered the evidentiary requirements presented relevant to schedule 5A, in specific to subclause 5A405(1).

   2.  The Tribunal does not take into consideration funds from a source provided and therefore advices that I the applicant does not meet cl 5A405(1)(a) amd also dismisses funds demonstrated by my Father on the basis of his income alone leading to not meeting cl5A 405(1)(c).  Further to this the Tribunal dismisses funds in my own account valued to $16000 advising my own inaccessibility to it.

   3.  It is suggested that errors were caused under which fact finding was not considered by the Tribunal in greeater depth whose existence is a condition precedent to Jurisdiction or Jurisdictional error.

3. The proceedings came before me on 4 August, 2014 for its first court date.  On that day there was no appearance by the applicant.  The proceedings were originally listed for that day, but the applicant indicated that he was not in a position to appear.  He did that by way of a letter sent to the Federal Circuit of Australia at Brisbane on 31 July, 2014.  The letter was in the following terms:

   It is advised to the honourable Court that I am currently overseas and was due to board my flight to Australia on 30/07/14.  I have been hospitalised on my way to the Airport on the 30^th as I have been involved in a Motor Vehicle Accident on the day, also, I unable to advise the court of this any earlier. 

   I will be in a position to provide evidence of hospital bills and/or doctors certificate in due course.  Kindly accept my apologies for my absence.  This situation is beyond my control.   I hereby request the court for an adjournment on the above grounds.

4. In light of that correspondence, most properly brought to my attention by the solicitor for the first respondent at the first court date, I made directions for the listing of this matter for hearing and the preparation of the matter for hearing today.  The directions permitted the applicant to file and serve an amended application if he wished to do so.  It required him to file some written submissions in support of his application.  It required the first respondent to file written submissions in support of his response to the application and liberty to apply was granted to either party.  The order was sent in the usual course to the address for service for the applicant.

5. He has appeared this morning, the clear inference therefore being that he knew that the matter was listed today.  When the matter was called, the applicant asked for an adjournment of the proceedings.  He asked for more time.  He has not filed an amended application.  He has not filed any written submissions in support of his case.  He has not brought any evidence to Court to suggest that he has been incapacitated in any way and thereby prevented from preparing his application for the Court today.  No basis is demonstrated in the material for an adjournment and for the brief reasons I indicated earlier, I refused his application for an adjournment.

6. The applicant thereafter made no submissions in support of his case.

7. The first respondent has filed and served written submissions in accordance with the directions made by the Court.  I have had regard to those written submissions. 

8. The application is to have a decision of a migration review tribunal made on 23 May, 2014 set aside. That decision affirmed a decision of a delegate of the first respondent made on 5 July, 2013 to refuse to grant to the applicant a Student (Temporary) (Class TU) visa. He had applied for that visa on 26 March, 2013 but a delegate of the first respondent refused it on the basis that the applicant did not provide the evidence required to demonstrate that he was a genuine student, as required by cl.472.223 of schedule 2 to the Migration Regulations 1994. In particular, the delegate, it seems, was not satisfied that the applicant met the financial capacity requirements for the grant of the visa.

9. The applicant applied for review of that decision by a migration review tribunal.  He made submissions in support of his application on 15 July, 2013.  He appeared before a tribunal on 8 April, 2014 where he was given the opportunity to present evidence and make submissions in support of his review.  Following the hearing, he provided a further written statement to the tribunal. 

10. The tribunal assessed the applicant’s claim to the relevant visa against the criteria for subclass 572 student visas.  The tribunal’s reasons reveal that there was an issue, for the tribunal, about whether the applicant was a genuine applicant for entry and stay as a student.

11. The tribunal noted that cl.572.223 of schedule 2 of the Regulations required that the tribunal be satisfied that the applicant was a genuine applicant for entry and stay as a student. The tribunal expressed some concern about that. The tribunal, in particular, expressed concern that the applicant was unable to meet the criteria specified in cl.572.223(2). The applicant, to meet that criterion, was required to give evidence in accordance with the requirements set out in schedule 5A to the Regulations for the highest assessment level that applied to him. Given his country of origin and the passports that he held, the relevant assessment level was the highest assessment level specified in the Regulations. The tribunal’s determination that the applicant should be assessed against the highest assessment level engaged clause 5A404 and clause 5A405 of schedule 5 to the Regulations.

12. The applicant was able to demonstrate compliance with cl.5A404 of schedule 5. 

13. Clause 5A405 of schedule 5 deals with the financial capacity of the applicant to fund his stay in Australia while studying.  The tribunal set out in its reasons for decision, between paragraphs 18 and 50, a detailed consideration of the relevant parts of that criterion.  In particular, the tribunal first defined the relevant time period in respect of which it needed to consider the applicant’s claims.  It determined that the first matter to be attended to was to identify the relevant 24 months period, in respect of which the applicant needed to demonstrate the relevant financial capacity.

14. The tribunal then set about determining and quantifying the course fees, living costs and travel costs that the applicant had to demonstrate an ability to fund.  In paragraph 27 of the tribunals’ reasons for decision it determined that the applicant needed to give evidence of funds sufficient to meet expenses totalling $29,419.  The tribunal considered thereafter whether the applicant could do that. 

15. The applicant attempted to do that in a number of ways.  First, he attempted to demonstrate that he had access to loan funds which were sufficient to meet that amount, together or when combined with other deposit accounts that were held by his parents which were originally sourced in deposit accounts held by his father and his sister.

16. The tribunal considered those matters in some detail and made findings about them.  The tribunal concluded that the applicant was unable to demonstrate that he had funds from an acceptable source assessed by the tribunal at $29,419.  The findings by the tribunal to that effect were open to it on the evidence.  There is nothing in the reasons of the tribunal which would suggest that the tribunal has asked itself the wrong question or in some other way, has misapplied the relevant procedure that was appropriate in this case.

17. There is nothing in the tribunal’s reasons that would suggest that the tribunal has made any error, let alone an error of law which might amount to a jurisdictional error. 

18. Insofar as the grounds of the application are concerned, I accept the first respondent’s submission that the first ground is really a formulaic ground which is rather general in its terms.  To the extent that it is suggested in that ground that the tribunal has not considered the evidentiary requirements “presented relevant to schedule 5A and specific to subclass 5A405(1A)”, the tribunal did just that.  It considered all of the evidence that the applicant chose to place before it.  It considered the evidence, analysed it and made findings about it.  The tribunal’s conclusion that the requirements of cl.5A405 were not met was a conclusion open on the facts as found by the tribunal.

19. As to the second ground of review, the tribunal did take into consideration the funds from the various sources identified by the applicant.  The tribunal’s determination that those funds were inadequate was open to it on the evidence.  This ground of review seeks a redetermination of merits of the tribunal’s decision.

20. As to the third ground, this ground also attempts impermissibly to contest the merits of the tribunal’s decision.  That is something that is not able to be done in these proceedings. 

21. I am not satisfied that the application raises any arguable grounds upon which the tribunal’s decision might be set aside.  No jurisdictional error is demonstrated in the tribunal’s reasons.

22. The application is therefore dismissed. 

    RECORDED: NOT TRANSCRIBED

23. In applications such as this, costs ordinarily follow the event.  That sometimes does not occur where there are special circumstances which suggest that such a course is inappropriate.  However, there are no special circumstances in this case.  The ordinary rule that costs should follow the event applies.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 21 November 2014.

Associate: 

Date:         16 December 2014