FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1345 |
| Catchwords: MIGRATION – Judicial review – temporary student visa – whether substantial compliance with conditions sufficient – whether jurisdictional error. |
| Legislation: Education Services for Overseas Students Act 2000 (Cth), ss.19, 20 Migration Act 1958 (Cth), ss.65, 359A, 474, 476 Migration Regulations1994 (Cth), Schedule 2, cl.573.333; Schedule 8, Condition 8202 |
| Applicant: | BHAVINKUMAR HASMUKHBHAI PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2226 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 5 June 2014 |
| Date of Last Submission: | 5 June 2014 |
| Delivered at: | Perth (by video link to Sydney) |
| Delivered on: | 27 June 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms K Hooper |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
SYG 2226 of 2013
| BHAVINKUMAR HASMUKHBHAI PATEL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application
The applicant applies for an order that the respondents, the Minister for Immigration & Border Protection[1] and the Migration Review Tribunal,[2] show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth)[3] in respect of the Tribunal’s decision[4] dated 23 August 2013. The Tribunal Decision affirmed a decision by a delegate[5] of the Minister dated 14 September 2011 not to grant the applicant a Student (Temporary) (Class TU) visa.[6]
[1] “Minister”.
[2] “Tribunal”.
[3] “Migration Act”.
[4] “Tribunal Decision”. The Tribunal Decision is at Court Book (“CB”) 216-230.
[5] “Delegate’s Decision” and “Delegate” respectively. The Delegate’s Decision is at CB 85-87.
[6] “Temporary Student Visa”.
Factual and procedural background prior to the present judicial review application
The background prior to the present judicial review application is as follows:
a)on 7 April 2011 the applicant applied for a Temporary Student Visa;[7]
[7] CB 85.
b)on 14 September 2011 the Temporary Student Visa application was refused by the Delegate for reasons contained in the Delegate’s…
Keep reading for free
Create a free CaseChat account to read Patel v Minister for Immigration and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2014] FCCA 1345
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the Tribunal erred in law when it found that Mr Patel had not substantially complied with the conditions of his previous Vocational Visa, specifically Condition 8202 of Schedule 8 to the Migration Regulations 1994. This condition required satisfactory course progress, and the Tribunal had relied on information indicating Mr Patel's enrolment in a Diploma of Business course was cancelled due to unsatisfactory progress, leading to a certification of non-compliance.
The Court considered the Tribunal's process, including its letter under s 359A of the Migration Act 1958 (Cth) advising Mr Patel of the information it had regarding his unsatisfactory course progress and the potential consequences for his visa application. The Tribunal's reasoning focused on the fact that Mr Patel had been certified as not achieving satisfactory course progress, which it found meant he had not substantially complied with Condition 8202. This failure, in the Tribunal's view, meant he did not meet the requirements for the Temporary Student Visa.
The Tribunal's decision affirmed the delegate's refusal to grant Mr Patel a Temporary Student Visa. The Court's role was to determine if the Tribunal's decision contained an error of law.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The background prior to the present judicial review application is as follows:a)on 7 April 2011 the applicant applied for a Temporary Student Visa;[7][7] CB 85.b)on 14 September 2011 the Temporary Student Visa application was refused by the Delegate for reasons contained in the Delegate’s Decision;[8][8] CB 85-87.c)by application to the Tribunal lodged on 22 September 2011 the applicant sought review of the Delegate’s Decision;[9][9] CB 88-96 and 99.d)on 8 April 2013 the Tribunal wrote to the applicant under s.359A of the Migration Act,[10] advising that:[10] CB 132-134 (“Section 359A Letter”).i)information before the Tribunal indicated that the applicant’s last substantive visa was a Subclass 572 Vocational Education and Training Sector Visa;[11] and[11] “Vocational Visa”.ii)one of the requirements for the grant of a Temporary Student Visa was that the applicant had complied substantially with the conditions that apply or applied to the Vocational Visa, which included Condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth),[12] which the Tribunal set out in full. The Tribunal provided the following particulars of information:[12] “Migration Regulations”.Information in the PRISMS data base to which the Tribunal has access indicates that you were enrolled in a registered course, Diploma of Business, at College of Innovation and Industry Skills Pty Ltd from 28 June 2010. The course was due to run until 12 June 2011 but on 14 March 2011 the enrolment was cancelled because of unsatisfactory course progress. The PRISMS data base indicated that on 14 March 2011 you were certified by the college for that Diploma of Business course as not achieving satisfactory course progress for Section 19 ESOS Act and Standard 10 of the National Code 2007.[13][13] CB 133. The reference to “Section 19 ESOS Act and Standard 10 of the National Code 2007” are references to the Education Services for Overseas Students Act 2000 (Cth) (“ESOS Act”) which provides the regulatory requirements for education and training institutions offering courses to international students in Australia on a student visa, and to the National Code which is a legislative instrument under the ESOS Act applying to providers of education to students with student visas, with Standard 10 being the Standard relating to the monitoring of course progress under the framework set out in the ESOS Act.e)the above information was said to be relevant to the Tribunal review because it may cause the Tribunal to find that the applicant was the subject of a certificate for the purposes of Condition 8202(3)(b) of Schedule 8 to the Migration Regulations, thereby engaging Condition 8202(3) of Schedule 8 to the Migration Regulations, which may lead the Tribunal to conclude that the applicant did not comply at all, let alone substantially, with Condition 8202 of Schedule 8 to the Migration Regulations in relation to the Vocational Visa, and that if the Tribunal reached that finding it may lead the Tribunal to find that the applicant did not meet the requirements of cl.573.333 of Schedule 2 to the Migration Regulations in relation to the Temporary Student Visa for which he was applying, or the equivalent clause in other Student Visa subclasses, and that thereby the Delegate’s Decision should be affirmed;f)the applicant was invited to comment on or respond to the particulars of information provided by 6 May 2013;[14]g)following the grant of additional time to respond to the Section 359A Letter, a response was provided by the applicant to the Tribunal on 3 June 2013;[15]h)attached to the Applicant’s June 2013 Response appeared a document headed “Non-Compliance Notification (NCN) Letter” which was in the following terms:Certification for the purposes of sub-clause 8202(3) of Schedule 8 of the Migration Regulations 1994College of Innovation and Industry Skills Pty Ltd [03022C] (trading as College of Innovation and Industry Skills) on 14 March 2011 certifies Mr Bhavinkumar Hasmukhbhai PATEL, for course Diploma of Business, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and Standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code 2007).[16]i)on 7 May 2013 the applicant was invited to appear before the Tribunal on 12 June 2013 before the Tribunal;[17]j)a hearing was held by the Tribunal on 12 June 2013 at which the applicant appeared, together with his wife, and was assisted by an interpreter;[18]k)the Tribunal Decision dated 23 August 2013 affirmed the Delegate’s Decision to refuse to grant the applicant a Temporary Student Visa, essentially because the Tribunal found that the applicant had not substantially complied with Condition 8202 of Schedule 8 to the Migration Regulations of his Vocational Visa.[19] The Tribunal Decision is dealt with in more detail below.[14] CB 132-133.[15] CB 146-147 (“Extension of Time Letter”) and CB 152-199 (“Applicant’s June 2013 Response and Annexures”).[16] CB 185 (“Section 20 Certification”).[17] CB 150-151.[18] CB 201-203.[19] CB 216-230, but particularly at CB 228-230 at paras.59-69.