Patel v Minister for Immigration

[2016] FCCA 258

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 258

Catchwords:
MIGRATION – Student visa – whether the applicant was a genuine applicant – whether tribunal decision affected by jurisdictional error – no jurisdictional error established.

Legislation:

Migration Act 1958(Cth)

Migration Regulations 1994(Cth) , cl. 572.223(1)(a)

Applicant: CHIRAG PATEL

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 853 of 2015

Judgment of: Judge Vasta

Hearing date: 21 January 2016

Date of Last Submission: 21 January 2016

Delivered at: Brisbane

Delivered on: 21 January 2016

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the Application be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 853 of 2015

CHIRAG PATEL

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed in this Court on 16 September 2015, the applicant, Chirag Patel, seeks a judicial review of a decision of the Administrative Appeals Tribunal made on 24 August 2015 which affirms a decision of the delegate of the Minister not to grant the applicant a student visa. 

2. In short compass, the facts are that the applicant applied to the department for the visa on 25 January 2015.  The delegate refused to grant the visa on 3 March 2015.  The criteria that the applicant had to satisfy was that of cl.572.223 (1)(a), which states that the Minister has to be:

   “(1)…satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i) the applicant’s circumstances, and

   (ii) the applicant’s immigration history; and

   …

   (iv) any other relevant matter…”

3. Now, the Tribunal had to have regard to all of the circumstances.  The circumstances are that the applicant was a citizen of India and he arrived in Australia on a student visa on 6 July 2008.  As has been discussed during the course of this hearing, since that time the applicant has completed quite a number of certificates. 

4. They are, in no particular order, an Advanced Diploma of Management in August 2011, a general English course in November 2011, a general English course in January 2012, a Diploma of Business in July 2010, a Certificate IV in English in 2008, a Certificate III in Food Processing in July 2009, a Certificate IV in Frontline Management in November 2013, a Diploma of Bakery and Pastry, a Diploma and Advanced Diploma in Business and a Certificate IV in Frontline Management.

5. He was due to commence a course in February 2015, which was a diploma in Project Management, and it was for that reason that he had lodged his application for a student visa.  At the time of the lodging of the application, the applicant had been in Australia for nearly seven years.  In that time he had only completed the low-level courses, notwithstanding that there were quite a number of those courses. 

6. The applicant said, in effect, that when he came here, he did the bakery course and the business management course because he hoped to use it to open a bakery business when he went back to India.  He has now changed his mind and wants to now work in the construction industry.  He says that there are family members who are involved in the construction industry and so a Diploma of Project Management may be able to assist him and, to use his words, “open the doors”. 

7. He said with regard to the lower-level courses that while he had been doing quite a number of them, he was not ready to move on, and he should only move to a higher-level course when he is ready to do so. 

8. He explained his reasons for this, and, both before the Administrative Appeals Tribunal and before this Court, gave quite an impassioned plea as to why he wanted to do this, and explaining why he was a genuine student. 

9. Of course, he did acknowledge that there may be an inference that all of these courses, because they are of the lowest level and they do seem to be somewhat disparate and that he has changed his mind, illustrate that he was not a genuine student and that he was simply finding these low-level courses so as to be able to extend his stay in Australia.  He said that that should not be the inference that was taken. 

10. It is quite obvious, when one has a look at the history, that such inference is an inference that is well and truly open.  It is a different thing to say whether that is the inference that should be taken or not.  The applicant, as I say, has given an impassioned plea to say why that should not be the inference that is made.  It may very well be that other Tribunals or fact-finders may not take that inference, but that is not the point. 

11. The point here is whether that was an inference that was open.  It was, in fact, the inference that the Tribunal took in affirming the decision. 

12. The applicant comes before me with one ground, and that is this:

    “1. I am appealing to squash (sic) the decision made by the Minister for Immigration and Border Protection (first respondent) and Administrative Appeals Tribunal (second respondent) on the basis they have made an error in judgement regarding refuse (sic) of my student visa under clause 572.222(1)(a).”

13. The argument that has been made before me is a merits review argument.  As has been acknowledged, such an inference that was drawn by the Tribunal was open.  It is not a question of whether that inference should have been made;  it is whether it could have been made.  It may be that a person in the position that I am may disagree, even vehemently disagree, with the decision that has been made. However, if the decision was open then there has been no jurisdictional error.  In this case, the inference was well and truly open, and I therefore cannot find that there is any jurisdictional error.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 11 February 2016