Nehrupandiyan v Minister for Immigration and Border Protection

[2019] FCA 123

FEDERAL COURT OF AUSTRALIA

Nehrupandiyan v Minister for Immigration and Border Protection [2019] FCA 123

Appeal from:	Nehrupandiyan v Minister for Immigration & Anor [2018] FCCA 1782
File number(s):	NSD 1309 of 2018
Judge(s):	YATES J
Date of judgment:	13 February 2019
Catchwords:	MIGRATION – application for student visa – where applicant was not enrolled in a course of study – where Tribunal does not have the discretionary power to dispense with mandatory visa requirements – appeal dismissed
Legislation:	Migration Regulations 1994 (Cth), Sch 2 cll 500.211 – 500.218
Date of hearing:	13 February 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	15
Counsel for the Appellant:	The appellant appeared in person with the aid of an interpreter
Solicitor for the First Respondent:	Ms C Saunders of DLA Piper Australia

ORDERS

NSD 1309 of 2018

BETWEEN:

BHARATHI NEHRUPANDIYAN

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	YATES J
DATE OF ORDER:	13 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from transcript)

YATES J:

INTRODUCTION

1. The appellant appeals from a judgment of the Federal Circuit Court of Australia (the Circuit Court) given on 3 July 2018, which dismissed his application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal).  The Tribunal’s decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister) not to grant the appellant a Student (Temporary) (Class TU) visa.

2. The appellant applied for the visa on 9 July 2016.  At the time of his application, Class TU comprised two subclasses—Subclass 500 (Student) and Subclass 590 (Student Guardian).  The appellant did not claim to meet the requirements for a Subclass 590 (Student Guardian) visa.

3. The requirements for a Subclass 500 (Student) visa are set out in Pt 500 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria, as applicable to the appellant, are set out in cl 500.211 to 500.218 of the schedule. All the criteria must be satisfied at the time a decision is made on the application.

4. A delegate of the Minister refused the appellant’s application on the basis that she was not satisfied that the appellant intended genuinely to stay temporarily in Australia.  Thus, the appellant did not satisfy the genuine temporary entrant criterion of cl 500.212.

5. On review, the Tribunal was not satisfied that the appellant met the criterion of cl 500.211(a) which required the appellant to be enrolled in a course of study. I note that, at the relevant time, the appellant did not claim to meet any of the alternative criteria in cl 500.211.

6. As to cl 500.211(a), the Tribunal found:

   The Tribunal…