Singh v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 132

MIGRATION – Application for judicial review of Migration Review Tribunal decision – whether applicant satisfied financial criteria for student visa – whether proceeds of sale of land can be part ‘regular income’ for purposes of Migration Regulations – whether Tribunal had evidence from which it could make the conclusions made – whether Tribunal imposed impossible evidentiary onus on the applicant.

Migration Regulations 1994 (Cth), cl. 5A405, 5A405(c), 5A405(1)(c), 5A405(2)(aa)

Singh v Minister for Immigration and Citizenship [2011] FMCA 923
Bhatia v Minister for Immigration and Citizenship [2011] FMCA 796
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Butterworths Australian Legal Dictionary
Macquarie Dictionary

Applicant: KULWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 110 of 2012

Judgment of: Burchardt FM

Hearing date: 21 December 2012

Date of Last Submission: 21 December 2012

Delivered at: Melbourne

Delivered on: 15 March 2013

REPRESENTATION

Counsel for the Applicant: Mr Gipp

Solicitors for the Applicant: JK Legal

Counsel for the Respondent: Ms Szydzik

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed. 

2. The applicant pay the first respondent’s costs fixed in the sum of $7,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 110 of 2012

KULWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REIVEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By his amended application filed on 27 August 2012, the applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 30 December 2011.  

2. The two grounds upon which the applicant seeks to rely (paraphrased slightly) are:

   1)It was not reasonably open to the Tribunal to conclude on the evidence before it that the regular income providing funds to the applicant was not sufficient to accumulate the level of funding as required by clause 5A405(c) of the Migration Regulations 1994 (“the Regulations”); and

   2)The Tribunal erred in law in concluding that the sale of land by the applicant's father could not be applied as “regular income” as required by clause 5A405(1)(c) of the Regulations.

3. For the reasons that follow, I do not think that these criticisms are made out and it follows that the application must be dismissed. 

Background Facts

1. The following background facts are not controversial and are taken from the Tribunal's decision. 

2. The applicant is a citizen of India who arrived in Australia on a student visa on 21 June 2008.  His temporary visa expired and he applied on 24 June 2009 for the visa which has given rise to these proceedings. 

3. Together with his application, the applicant submitted relevantly:

   a)an income certificate dated 11 June 2009 which indicated that Parshotam Singh derives 30,000 rupees per acre on his land with an aggregate of 2,50,500 rupees (which the Tribunal converted at the time of decision as $4,667); and

   b)a bank statement dated 10 June 2009 for an account in the name of Shamsher Singh showing a…