Hetalben PRAKASHBHAI Patel & Anor v Minister for Immigration and Citizenship

[2012] HCASL 149

HETALBEN PRAKASHBHAI PATEL & ANOR

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2012] HCASL 149
P14/2012

1. The first applicant, Mrs Hetalben Patel, is a citizen of India. In August 2010 she applied for a Subclass 572 student visa.  Her husband, the second applicant, was included in the application.  The application was refused by a delegate of the Minister for Immigration and Citizenship. 

2. The applicants applied to the Migration Review Tribunal ("the Tribunal") for a review of the delegate's determination.  The Tribunal affirmed the determination because Mrs Patel had failed to satisfy an essential requirement for the grant of the visa[1]concerning proof of her English language proficiency. 

   [1]Migration Regulations 1994 (Cth) ("the Regulations"), Sched 2, cl 572.223(2)(a)(i), Sched 5A, cl 5A404.

3. In May 2009 Mrs Patel had completed an English Language Intensive Course for Overseas Students (ELICOS) at the Perth International College of English. In October 2008 she had undertaken an International English Language Testing System (IELTS) test and achieved an overall band score of 5.0. The difficulty for Mrs Patel is that under the Regulations a person who has achieved an overall band score of 5.0 on the IELTS test is required to produce evidence that the person "will undertake an ELICOS … before commencing … her principal course"[2].  Mrs Patel failed to provide that evidence. 

   [2]The Regulations, Sched 5A, cl 5A404(b)(i).

4. An application for judicial review of the Tribunal's determination was dismissed by the Federal Magistrates Court (Raphael FM). 

5. An appeal to the Federal Court of Australia was dismissed by Siopis J. His Honour observed that while the rationale for the Regulation was "somewhat elusive", the construction adopted by the Federal Magistrate and the Tribunal was clear[3].

   [3]Patel v Minister for Immigration and Citizenship [2012] FCA 376 at [24].

6. Mrs Patel applies for special leave to appeal. On 12 July 2012 Gummow ACJ made an order by consent reinstating her application. Mrs Patel does not address the construction of the Regulation in the material filed in support of the application. She makes unparticularised assertions of the breach of s 424A of the Migration Act 1958 (Cth) ("the Act") and says that the Federal Court did not provide her with a proper opportunity to prove the truth of her claim. Section 424A governs proceedings before the Refugee Review Tribunal and does not apply to the review of Mrs Patel's claim. Nothing in the material filed in support of the application suggests that the Tribunal failed to comply with the equivalent obligation imposed on it under s 359A of the Act. The application does not present an issue suitable for the grant of special leave.

7. The application is dismissed. 

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

J.D. Heydon
13 November 2012 V.M. Bell