SINGH v Minister for Immigration

[2014] FCCA 3093

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3093

Catchwords:
MIGRATION – Application for student (Temporary) (Class TU) visa – where applicant did not meet visa criterion because he did not fulfil financial capacity requirements – application dismissed.

Legislation:  
Migration Regulations 1994, schedule 2, cl.572.223

First Applicant: SAMSHER SINGH

Second Applicant: GEETA DEVI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 2 of 2014

Judgment of: Judge Jarrett

Hearing date: 20 November 2014

Date of Last Submission: 20 November 2014

Delivered at: Brisbane

Delivered on: 20 November 2014

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondent: Ms Kelly

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to these proceedings fixed in the sum of $6,646. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 2 of 2014

SAMSHER SINGH

First Applicant

GEETA DEVI

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

ex tempore

1. This is an application for an order to review a decision of a migration review tribunal that was made on 25 November, 2013.  The applicant seeks a writ of certiorari quashing the decision and a writ of mandamus directed to the tribunal requiring it to determine his application for a visa according to law. 

2. The reasons of the migration review tribunal dated 22 November, 2013 make it clear that the applicant applied to the first respondent for the grant of a Student (Temporary)(class TU) visa, and the decision of the tribunal relates to that application.  Notwithstanding that, the first ground of review set out in the applicant’s application before this court says this:

   The member of the Migration Review Tribunal erred when she did not take into account the applicant’s evidence to be considered for a skilled (provisional)(class VC) visa.

   Particulars

   The applicant states that he provided sufficient evidence to further his claim for a skilled (provisional)(class VC) visa. 

3. As the first respondent points out in his written submissions, the first ground of the review application seemingly does not relate to the visa application in respect of which the order to review is sought.  It seems to relate to an application for a different visa, although it may just be that the applicant has used a pro forma document and has forgotten to change the “Skilled (Provisional)(class VC) visa” wording to his “Student (Temporary)(class TU) visa” wording. 

4. Ground 2 of the application is in the following terms:

   Due to the member of the Migration Review Tribunal not taking into account vital information, the applicant suffered unfairness and breach of natural justice.

5. Particulars are given:

   The applicant states that he provided documentary evidence which were not given due consideration.

6. The tribunal’s decision makes it clear that the applicant applied to the first respondent for a Student (Temporary)(class TU) visa on 1 August, 2011.  His claim was assessed against subclass 572 on the basis of his enrolment in a number of courses.  He needed to demonstrate pursuant to clause 572.223 of schedule 2 to the Migration Regulations 1994 that he was a genuine student.

7. As part of that process, the applicant needed to demonstrate that he had the financial capacity to fund an amount assessed by the tribunal as being the costs associated with his study and stay in Australia.  The essential reasoning of the tribunal was that it was not satisfied that the applicant demonstrated appropriate financial capacity having regard to the Regulations and the way that might be proved.  And so the applicant did not satisfy the relevant criterion and the visa could not be granted to him. 

8. The tribunal assessed the funds to which the applicant had to have access as $32,800.  He was therefore required to give evidence of funds to that amount to cover his course fees, living costs for 12 months and travel costs.  He gave evidence of several funds transfers to his bank account as well as evidence of the following amounts:

   a)a Central Bank of India loan from his mother for a certain amount;

   b)a Central Bank of India loan to his brother of another amount; and

   c)a loan to the applicant’s other brother. 

   The combined total of those three loans was approximately A$37,638.

9. The applicant also provided evidence of the annual income of his brothers and mother.  That was necessary under the relevant Regulations.  However, the tribunal was not satisfied that the applicant’s brothers and mother had sufficient regular income to accumulate the level of funding being provided to the applicant.  It found that the applicant could not therefore meet the relevant visa criteria. 

10. The grounds of review, even taking account of ground 1 referring to the wrong visa type, attempt to take issue, in my view, with the merits of the tribunal’s decision.  The tribunal considered the material the applicant had placed before it, including evidence about his wife’s income, and notwithstanding that evidence it did not reach the level of satisfaction required to determine that the visa criterion had been satisfied.

11. I have read the tribunal’s decision carefully and I can see no error of a legal or procedural nature in the way in which the tribunal has approached its task.  There is no lack of procedural fairness.  There are no procedural difficulties and the way in which the tribunal has dealt with the evidence before it was entirely open to it. 

12. In all of those circumstances, the tribunal’s decision is not attended by jurisdictional error.  The decision of the tribunal is a privative clause decision and is not open to review in this court.  The application therefore is dismissed.

    RECORDED : NOT TRANSCRIBED

13. In applications of this nature there is no particular reason why costs ought not follow the event.  There are no special circumstances attending this particular matter which would mean that that general rule ought not apply. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 20 November, 2014.

Associate: 

Date:         30 January 2015