Singh v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1251

MIGRATION – Judicial review – failure to substantially comply with condition of last held visa – construction of condition 8202 – no basis to exercise decision to remit.

Migration Act 1958 (Cth), s.65
Migration Regulations 1994 (Cth), cl.8203, 572.235

Chen v The Minister for Immigration and Citizenship [2011] FMCA 177
Jayasekara & the Minister for Immigration and Indigenous Affairs [2006] 156 FCR 199
Patel v The Minister for Immigration and Citizenship [2012] FCA 958
Weerasinghe v The Minister for Immigration and Multicultural Affairs [2004] FCA 261

Applicant: JARNAIL SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 659 of 2011

Judgment of: Jarrett FM

Hearing date: 16 November 2012

Date of Last Submission: 16 November 2012

Delivered at: Brisbane

Delivered on: 16 November 2012

REPRESENTATION

The applicant appeared in person

Solicitor for the Respondents: Mr Alderton

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 26 July 2011 be dismissed.

2. The applicant pay the respondent’s costs of and incidental to these proceedings fixed in the sum of $5,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 659 of 2011

JARNAIL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

1. By his application filed on 26 July, 2011 the applicant, Jarnail Singh, seeks judicial review of a decision of a migration review tribunal.  The Tribunal’s decision was made on 22 June, 2011.  In the decision, the Tribunal affirmed a decision of the delegate of the first respondent Minister, made in October, 2009 to refuse to grant to the applicant a student (temporary) class TU visa.  The decision record of the Tribunal is found in the court book at page 65 and onwards. 

2. The Tribunal first set out and made a finding that the decision before it was an MRT reviewable decision.  It then set out the relevant law, by reference to the relevant criterion for a grant of a student (temporary) class TU visa and in particular those matters that are relevant to the grant of the particular sub-class 572 visa – sought in this particular case.

3. The Tribunal then recorded that it needed to be satisfied of certain matters and recorded that, in respect of a sub-class 572 visa and in particular criterion 572.235, the Tribunal needed to be satisfied that the applicant had complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant and to any subsequent bridging visa.  The Tribunal recorded the authorities that were relevant to a consideration of whether an applicant had complied substantially with a visa condition and how those authorities ought to be applied by the Tribunal. 

4. The Tribunal then set out some further authorities to the effect that there was no room for the operation of the substantial compliance doctrine when the Tribunal was considering whether condition…