Patel v Minister for Immigration

[2014] FCCA 1249

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1249

Catchwords:
MIGRATION – Application for review of Migration Review Tribunal decision – failure to meet requirements of the Migration Regulations 1994 (Cth) –  
no current enrolment or offer of enrolment in a course of study specified for a clause 572 visa – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), cls.572.221, 572.231, 572.322

First Applicant: NILAMBAHEN MEHULKUMAR PATEL

Second Applicant: MEHULKUMAR RAMABHAI PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1901 of 2013

Judgment of: Judge Whelan

Hearing date: 22 May 2014

Date of Last Submission: 22 May 2014

Delivered at: Melbourne

Delivered on: 22 May 2014

REPRESENTATION

Counsel for the Applicants: Applicants appearing in person

Counsel for the First Respondent: Mr Hutton

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The Application filed 11 November 2013 be dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $3,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1901 of 2013

NILAMBAHEN MEHULKUMAR PATEL

First Applicant

MEHULKUMAR RAMABHAI PATEL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. This is an application for judicial review of a decision by the

   
   

   Migration Review Tribunal (“the Tribunal”) of 1 November 2013.

   
   

   The Tribunal affirmed a decision of a delegate of the Minister of

   
   

   14 June 2012 refusing to grant the First Applicant a student (Temporary) (Class TU) visa and the Second Applicant a dependent visa (collectively “the Applicants”). The Applicants seek orders that the decision of the Tribunal be quashed. 

Background

1. The Applicants are citizens of India. The First Applicant held a student visa from 15 May 2007 until 30 September 2011. She applied for a further visa on 27 September 2011 and named the Second Applicant as a dependent. The delegate refused to grant the visa on the grounds that the First Applicant had not been studying for a cumulative period of

   
   

   15 months and that she had failed to comply with the conditions of her previous visa.

2. On 2 July 2012, the Applicants applied to the Tribunal for a review of the delegate’s decision. On 26 September 2012, the Tribunal invited the Applicants to appear at a hearing on 30 October 2012. In that invitation, the Applicants were requested to provide, among other things:

   1.  A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.

   2.  Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.[1]

   [1] Court Book filed 18 February 2014, at p.123.

3. An oral decision was provided to the Applicants on the same day as the hearing. The application for judicial review was then lodged on

   
   

   11 November 2013. 

The Tribunal’s decision

1. The Tribunal found that there was no evidence that the First Applicant was enrolled in, or had a current offer of enrolment in, any applicable course of study and therefore she did not meet the requirements of the Migration Regulations 1994 (Cth) (“the Regulations”).[2] The Tribunal considered evidence given by the First Applicant at the hearing.

   
   

   She stated that she had not been studying as she:  

   ·Was awaiting the outcome of the review;

   ·Did not have any evidence of current enrolment or an offer of enrolment; and

   ·Was not prepared to risk paying any fees towards a course unless she was guaranteed the grant of a visa.

   [2] Migration Regulations 1994 (Cth), cl.572.231.

2. The Tribunal found there was no evidence that the Second Applicant met the criteria for a student visa and that he could not meet the requirements of being a dependent of the First Applicant because she did not satisfy the criteria for a student visa.[3]

   [3] Migration Regulations 1994 (Cth), cl.572.322.

Grounds for review

1. The Applicants, in their application, stated they were not satisfied with the decision and that the decision should be reviewed again for more inquiries. In oral submissions today, the First Applicant indicated that she was not, in fact, enrolled in a registered course of study at the time the Tribunal considered her application.

The First Respondent’s submissions

1. The First Respondent submits that the Tribunal correctly found that the First Applicant did not meet the requirements for the grant of the visa as she was not enrolled in an applicable course of study and was not the subject of an offer of enrolment. The First Respondent submits that the grounds of the application do not allege any jurisdictional error on the part of the Tribunal. The dissatisfaction of the Applicants is not a legitimate ground of review and, to the extent that the Applicants seek to review the matter again with more inquiries, the First Respondent submits that that is not permissible as it is an attempt at a merits review by the Court.

Conclusions

1. As the Court has previously indicated, this is not a review of the merits of the Applicants’ claim. The task of the Court is to determine if the Tribunal made an error of law in coming to its conclusions.

   
   

   In this matter, the Tribunal found that the First Applicant did not meet the criteria of cl.572.231 of the Regulations. That sub-clause requires that the First Applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study which meets the requirements of the Regulations. Further, sub-cl.572.221(1) of the Regulations requires that that criteria be satisfied at the time of the decision. On her own admission, the First Applicant did not satisfy the requirements of cl.572.231 of the Regulations.

2. The Second Applicant could not, therefore, satisfy the requirements of cl.572.322 of the Regulations which required him to be a member of a family unit of a person who satisfied the primary criteria. In those circumstances, the Tribunal was bound to affirm the decision of the delegate of the First Respondent and, for those reasons, this application must be dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 16 June 2014