Wei v Minister for Immigration & Border Protection

[2014] FCCA 263

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEI v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 263

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE AND PROCEDURE – Whether grounds for judicial review raise an arguable case – application dismissed pursuant to rule 44.12 of the Federal Circuit Court Rules.

Legislation: 
Federal Circuit Court Rules 2001 (Cth) r.44.12

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

Applicant: SONG WEI

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

MIGRATION REVIEW TRIBUNAL

File Number: SYG 2712 of 2013

Judgment of: Judge Emmett

Hearing date: 18 February 2014

Date of Last Submission: 18 February 2014

Delivered at: Sydney

Delivered on: 18 February 2014

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter

Solicitors for the Respondent: Mr David McLaren
(Sparke Helmore Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2712 of 2013

SONG WEI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. This is an application made by the first respondent that the proceeding before this Court, commenced by way of application filed on 4 November 2013, be dismissed, pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), on the basis that the grounds of the application do not raise an arguable case for the relief claimed.

2. The complaints made in the application are contained in the section headed “Final Orders Sought By Applicant and Grounds of Application”. They are as follows:

   “I need my student visa is granted by MRT.

   
   
   

   I need my student visa is granted by DIBP.

   
   
   

   I meet all the conditions to grant the student visa.”

   
   
   

3. Plainly, those complaints do not disclose an error capable of review by this Court and make bare assertions only.

4. The applicant was unrepresented this morning, although had the assistance of an interpreter. The applicant’s complaints as disclosed in his application were interpreted for the assistance of the applicant and he was invited to say whatever he wished in support of his application. 

5. The applicant said that he understood that his application had been refused because he did not have sufficient English to satisfy the visa requirements and that he relied on his migration agent. However, the fact that the applicant’s migration agent may have given him wrong information about the decision record does not establish jurisdictional error on the part of the Migration Review Tribunal (“MRT”). In any event there are no further particulars or evidence in support of the applicant’s bare allegation.

6. The applicant filed an affidavit, affirmed 31 October 2013 and filed on 4 November 2013, annexing the decision of the MRT. That affidavit was read by the first respondent.

7. The MRT’s decision record makes clear that the concern that it had about the applicant’s student visa application was whether the evidence of funds was from an acceptable source.  There is nothing on the face of the MRT’s decision record to suggest that its conclusion that the evidence of the applicant’s source of funds did not satisfy the definition of “funds from an acceptable source”, pursuant to the regulatory scheme in the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth). The MRT expressed the reasons for its concerns and ultimately affirmed the decision under review.

8. There is nothing on the face of the MRT’s decision record to suggest that its finding were not open to it on the evidence and materials before it and for the reasons its gave. Further, there is no jurisdictional error apparent on the face of the MRT’s decision record and none is identified by the applicant.

9. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commenced by way of application filed on 4 November 2013, should be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:         20 February 2014