Pillai v Minister for Immigration & Multicultural Affairs [2001] FCA 1756

FEDERAL COURT OF AUSTRALIA

Pillai v Minister for Immigration & Multicultural Affairs [2001] FCA 1756 VINU KUPPAMMA KARPUSWAMY PILLAI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 963 OF 2001 EMMETT J 2 NOVEMBER 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 963 OF 2001

BETWEEN: VINU KUPPAMMA KARPUSWAMY PILLAI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 2 NOVEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 963 OF 2001

BETWEEN: VINU KUPPAMMA KARPUSWAMY PILLAI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 2 NOVEMBER 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 I have before me an application for an order of review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, ("the Minister"), to refuse an application by the applicant to enter and remain temporarily in Australia under a Student (Temporary) (Class TU) (subclass 560) visa. The decision was notified to the applicant by letter of 15 May 2001. 2 The amended application discloses two grounds. The first ground is that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision as contemplated by s 476(1)(e) of the Migration Act 1958 ("the Act"). The second ground is that the delegate did not have jurisdiction to make the decision, thereby giving rise to the ground contained in s 476(1)(b). 3 Before dealing with those grounds I shall say something about the factual circumstance that give rise to the application. On 27 December 2000 the applicant completed an application for a Student (Temporary) visa. I will assume that the application was lodged with the Australian High Commission Visa Office in New Delhi, India, shortly after that date. The application was accompanied by a supplementary questionnaire form 157W and other material, including a 'Statement of Purpose' completed in handwriting by the applicant. Certain other material was provided in connection with the application. That other material included material relating to the financial affairs of Mr Raman Pillay. 4 The supplementary questionnaire completed by the applicant discloses that he proposed to study for a Diploma of Civil Engineering for two years at New South Wales TAFE. In answer to the question "What influenced your decision to enrol in the course you propose to study in Australia?", he provided the following answer: "I want to gain a professional and internationally recognized diploma at NSW TAFE & will learn about the latest software being used for design and also latest development in the field of Civil Engineering." 5 In the body of the application under the heading "Financial Support Details", under the heading "Loan From a Relative", the following appeared: "Mr Ramon Pillay 4 Tornhill Place, Cherrybrook, NSW, 2126, Sydney, Australia. Motel owner." In response the question "How do you propose to repay this loan?" his response was "As he is immediate family, I do not have to repay this loan." The amount borrowed was shown as "Rs 3-5 Lakh". 6 In the statement of purpose that accompanied the application, the following appeared under the heading "Educational Background". "I wish to go for a further studies in civil engineering in Australia as I realise that without professional qualification I cannot do full justice when I start looking after my family business eventually." 7 Under the heading "Career Goals" the following appeared: "As I gained experience in civil construction line through my father's business, I gained invaluable practical experience by I wanted to develop this line and so I decided to go for further studies in Civil Engineering. I chose Australia for further studies as Australia provides better facilities with advanced tools and technology. ……………………… This course among other things will also make me aware of the basics of Civil Engineering starting from surveying, organisation, planning and building. I will also learn about project management, foundations, reinforced concrete, steel works and strength of materials. I will also be tackling issues like environmental impact of man's approaching on nature, road and town planning. Other subjects include estimating of materials, hydrology, sand investigation, mechanics, capacity of a beam load, drainage systems etc. I will also be doing project in my third semester. I chose NSW TAFE because they are very well reputed by their peer institutions in the field of Civil Engineering." 8 Amongst the material that was furnished in connection with the application was an affidavit purporting to be by the applicant's parents saying as follows: "(1) …we the above named deponents do hereby declare that we are not sponsoring our son, Pillai Vinu KK for his trip to Australia for the course of Diploma of Civil Engineering at the college of Mt Druitt College of TAFE, starting from 12.02.2001 to 31.12.2002. (2) We support his decision to study in Australia and the "whole family" has sufficient financial resources to sponsor his education, to living expenses during his stay in Australia for two years. (3) We further declare that Mr Ramon Pillai residing at 4 Torn Hill Place, Cherrybrook, NSW, 2126, Sydney, Australia is his primary sponsor and will take responsibility for his accommodation plus tuition fees which amounts to Rs. 3,00,000/- (approx) for two years." 9 The application was also accompanied by a letter on the writing paper of "Colonial Motels" addressed to the Australian Visa Section of New Delhi, purporting to be signed by Ramon Pillay as managing director. It said as follows: "I am Ramon Pillay Director of Colonial Motels Richmond, 161 March Street, Richmond, will personally be providing full tuition fee, accommodation, medical and any other financial assistance for my nephew Vinu Pillai KK during his study at TAFE Mt Druitt NSW. He will be staying with us in Parramatta in one of my units and I shall take care of his boarding and TAFE fee until he complete his diploma." 10 There is also a statutory declaration purporting to be declared at Richmond on 22 December 2000 by Ramon Pillay stating: "My nephew Mr Vinu Pillai KK coming to Sydney to have further study at TAFE Mount Druitt and I shall be helping for all his tuition fee in full, boarding, lodging, medical and financial assistant if necessary." 11 The other material accompanying the application included considerable material relating to the financial position of Mr and Mrs Pillay of Colonial Motel Richmond, New South Wales. 12 The Australian High Commission Office wrote an undated letter to the applicant saying inter alia as follows: "I refer to your application for subclass 560 student visa for Australia.