Toor v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TOOR v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 804

MIGRATION – Schedule 5A of the Migration Regulations 1994 – evidence of availability of funds – s.359AA(b)(iii) and s.359AA(b)(iv) of the Migration Act 1958 (Cth) considered.

Commonwealth of Australia Constitution Act, s.75(v)
Migration Act 1958 (Cth), ss.359A, 359AA, 360, 424A, 424AA
Migration Regulations 1994, Schedule 2, Schedule 5A

Minister for Immigration and Citizenship v Li [2012] FCAFC 74
MZYFH v Minister for Immigration and Citizenship [2010] FCA 559
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415

Applicant: SUPINDER SINGH TOOR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 123 of 2012

Judgment of: Whelan FM

Hearing date: 24 July 2012

Date of Last Submission: 24 July 2012

Delivered at: Melbourne

Delivered on: 7 September 2012

REPRESENTATION

Counsel for the Applicant: Mr Gilbert

Solicitors for the Applicant: Bentleys Migration Law

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the Application filed 8 February 2012 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 123 of 2012

SUPINDER SINGH TOOR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision by the Migration Review Tribunal (“the Tribunal”) of 10 January 2012 to affirm a decision of a delegate of the Minister not to grant the Applicant a Subclass 572 (Class TU) visa.

2. The Applicant seeks:

   ·A writ of prohibition, prohibiting the First Respondent from taking action on the decision of the Tribunal;

   ·A writ of certiorari quashing the decision or an Order setting it aside;

   ·A declaration that the decision is invalid; and

   ·An Order remitting the matter to the Tribunal for determination according to law.

Background

1. The Applicant is a citizen of India. On 14 August 2010, while resident in Australia, he applied for a subclass 572 student visa. On 12 October 2010 he was requested to provide evidence of having access to sufficient funds for his tuition fees, living expenses and return travel.

2. On 2 November 2010, he provided certain documentation to the Department of Immigration and Citizenship (“the Department”) including a loan sanction letter from the Punjab National Bank.

3. On 29 November 2010, the Applicant was requested to provide evidence that the loan had been disbursed into an account and funds were readily available. On 3 December, the Applicant provided a letter from the bank in relation to a fixed deposit account held by Mr Rajinder Singh, the Applicant’s father.

4. The Delegate referred the letters to the Australian High Commissioner in New Delhi for verification. The response indicated that the monies had been transferred into a savings account and fully withdrawn.

5. On 16 December 2010, the Delegate invited the Applicant to comment on the information that the relevant funds had been withdrawn on 10…