EKTABEN HIMMATSINH Hadiyoal & Anor v Minister for Immigration and Border Protection

[2014] HCASL 161

EKTABEN HIMMATSINH HADIYOAL & ANOR

v

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR

[2014] HCASL 161
M43/2014

1. On 16 September 2011, a delegate of the first respondent refused to grant each of the applicants a Student (Temporary) (Class TU) visa.  The second applicant is the husband of the first applicant, and his visa application was dependent on hers.

2. On 19 April 2013, the Migration Review Tribunal ("the Tribunal") provided written reasons for affirming the delegate's decision. The Tribunal found that, by failing to maintain enrolment in a relevant course of study, the first applicant had not complied substantially with a condition of her previous visa. The first applicant therefore did not meet the criterion in cl 572.235 of Schedule 2 of the Migration Regulations 1994 (Cth), which applied at the relevant time.

3. On 11 November 2013, the Federal Circuit Court of Australia (Jones J) dismissed the applicants' application for judicial review of the Tribunal's decision.  Jones J held that there was no jurisdictional error which had affected the Tribunal's decision and that the applicants sought impermissible merits review.

4. On 5 May 2014, the Federal Court of Australia (Mansfield J) dismissed the applicants' appeal from the decision of Jones J.  Mansfield J held that the decision reached by Jones J was readily available and there was no procedural failing in the way in which the Federal Circuit Court proceeded.

5. The applicants now seek special leave to appeal to this Court.  The applicants have not identified any questions of law that would justify the grant of special leave, and there is no reason to doubt the correctness of the Federal Court's decision.  Special leave is refused.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
11 September 2014 P.A. Keane