SINGH v Minister for Immigration
[2011] FMCA 923
•7 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 923 |
| MIGRATION – Review of Migration Review Tribunal – student visa – application dismissed – no matter of principle. |
| Applicant: | CHARANJIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1033 of 2011 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 7 November 2011 |
| Date of Last Submission: | 7 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 7 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appearing in person |
| Counsel for the Respondents: | Ms Whittemore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 25 July 2011 be dismissed.
The Applicant pay the First Respondent’s costs fixed at $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1033 of 2011
| CHARANJIT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(as revised from transcript)
On 12 August 2010 the applicant applied for a student visa. This application was refused on 8 November 2010. The Minister’s delegate found that the applicant had failed to provide evidence of funds required under the visa conditions sufficient to support his stay in Australia. On 24 November 2010 he applied for a review of that decision to the Migration Review Tribunal. The issue before the Tribunal was whether or not the applicant could meet the financial capacity requirements. The purpose of these requirements is clearly to ensure that students who come to Australia have sufficient funds to support themselves for their period of study.
The Tribunal invited the applicant to attend and give evidence, or provide additional information, before the Tribunal. The applicant did not respond and did not attend a hearing. The applicant did provide further documentary material. His agent provided a copy of an agreement described as a Sale of Land agreement and an email from the agent claiming that his father said that the balance of the funds belonged to his father and had not been borrowed from anywhere.
The difficulty the applicant faced was that originally inquiries by an agent of the Australian High Commission concluded that the funds appeared to have come from a commission agent. When the person from the Australian High Commission spoke to the applicant’s father he could not remember when he had sold the land that he claimed he sold, nor could he produce a document showing the registration of any land or land sale.
The officer from the Australian High Commission advised that land sales have to be registered in India and that loans from commission agents are not acceptable because they are repayable on demand and commission agents are not legally authorised to lend money in India. As the Tribunal pointed out at paragraph [47]:
[47] The Tribunal therefore finds that these funds were borrowed from a source that may demand repayment at any time. The source of funds is not acceptable and the Tribunal cannot be satisfied that the applicant will have access to the funds required.
Clearly, the Tribunal came to the view that it did not accept that the funds had come from the sale of land but rather that they were likely to have come from a commission agent.
In the absence of evidence in person from the applicant, or a better explanation of the financial affairs of his father, it does not appear to me to be surprising that the Tribunal came to the view that it did on the documents before it.
The applicant’s judicial review application claims that the Tribunal failed to take relevant considerations into account and that it took irrelevant considerations into account. The relevant considerations he says the Tribunal failed to take into account were his claim that he had enough funds to cover his period of proposed stay and that the source of the funds was genuine and that the Tribunal did not give enough weight to his claim that his father had sold a block of land in India and the sale proceeds were part of the available funds. He said that his father also had other funds.
It seems that these factors were the matters that the Tribunal discussed in their decision. The fact that a Tribunal ultimately rejects a claim, or part of a claim, does not mean that they failed to take it into account.
It is for the Tribunal to decide what they believe and what they do not believe. The applicant also says that the Tribunal ought not to have taken into account that the land sale agreement was not registered and that the Tribunal should have believed that the money was his father’s because his father said so.
In the absence of evidence that land sales are not usually registered in India or that people commonly fail to register them, the Tribunal was, in my view, able to take into account that the documents here were not registered and that showed it was not likely to be a genuine transaction.
The mere fact that money is in a bank account will not always satisfy a Tribunal that the money belongs to a person or has come from an appropriate source such as savings or the sale of an asset.
People do sometimes borrow money from commission agents or other lenders for a period of time long enough to make it look like they have got money in their bank account. On the material before the Tribunal in this case it was open to them to come to that view.
In the circumstances, I do not find that the applicant has shown a ground for judicial review and I must, therefore, dismiss the application.
[Further argument ensued]
In the circumstances, the respondent has been entirely successful and the respondent ought to have costs. They seek $3,500. Having regard to the scale and the nature of the matter, this appears to be a reasonable sum. I, therefore, formally dismiss the application.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 25 November 2011
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