Patel v Minister for Immigration
[2013] FCCA 782
•19 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 782 |
| Catchwords: MIGRATION LAW – Application for review of Migration Review Tribunal decision – applicant being certified by education provider for insufficient attendance – consideration of Patel v Minister for Immigration and Citizenship – certification fatal to applicant’s case – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Patel v Minister for Immigration and Citizenship (2012) 206 FCR 384 Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199 |
| First Applicant: | HASMUKHKUMAR PRAHLADBHAI PATEL |
| Second Applicant: | SANGITABEN HASMUKHBHAI PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1304 of 2012 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 26 April 2013 |
| Date of Last Submission: | 26 April 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 19 July 2013 |
REPRESENTATION
| The Applicants: | No appearance |
| Counsel for the First Respondent: | Mr Rogers |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1304 of 2012
| HASMUKHKUMAR PRAHLADBHAI PATEL |
First Applicant
| SANGITABEN HASMUKHBHAI PATEL |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This application filed on 17 October 2012 seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”). The grounds of application are as follows:
a)I applied for the STUDENT VISA on 31 August 2010.
b)Then I apply to MRT for review of that decision, on 28/09/2010.
c)I think MRT Tribunal and the department of immigration did not look my situation.
The affidavit in support sworn by the first-named applicant relevantly asserts:
“I come in Australia on student visa. then my application for student visa was refused by department of immigration and citizenship. i have also apply to MRT. I am not happy with these decision.”
The affidavit went on to annex a copy of the Tribunal’s decision.
On 5 December 2012, Registrar Caporale made orders, inter alia, that the applicants file any amended application, any supplementary court book and written submissions by 6 March 2013. None of those things have occurred.
The applicants did not attend at hearing, although it is clear from the Court file that the first-named applicant signed a copy of what became the orders made by Registrar Caporale on 5 December 2012, in which the hearing date before the Court was clearly indicated.
In these circumstances, and whatever the reason for the non-attendance of the applicants, all the Court has to go on is the Court Book (“CB”), including the Tribunal’s decision, and the written submissions of the first respondent.
I take the following facts from the first respondent’s contentions of fact and law which seem to me, in the light of the materials in the Court Book, to be uncontroversial.
The applicants are citizens of India. The second applicant is the spouse of the first applicant and her application stands or falls on the first applicant’s application.
The applicant arrived in Australia on 12 January 2009 as the holder of a Student (Temporary) (Class TU) Subclass 575 Visa, which was subject to a number of conditions, including condition 8202, which set out in schedule 8 the Migration Regulations 1994 (Cth).
On 11 May 2010 (CB27, and elsewhere) the applicant’s education provider, Swan Training Assocation Inc, certified for:
a)s.19 of the Education Services for Overseas Students Act 2000 (“the SOS Act”); and
b)Standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (the National Code);
that the applicant had not achieved satisfactory course attendance for his course, Diploma of Production (Horticulture).
This led inexorably to a notification sent to the applicant on 28 May 2010, being notice of intention to consider cancellation of the applicant’s visa.
The applicant responded on or about 3 June 2010 (CB29-33), attaching a medical certificate and academic transcript.
On 31 August 2010 the applicant applied for a further student visa and on 7 September 2010 a delegate of the Minister refused to grant the further visa (CB70-76).
At CB75-76, the delegate recorded the following:
“On 31st December 2010, Mr Patel was granted a student visa subclass 575 to study Diploma of Production Horticulture at Swan Training Association Inc. This course was scheduled to commence on 13th July 2009 and conclude on 13th July 2011 however on 11 May 2010 the student was reported for unsatisfactory attendance by the provider. Mr Patel has not attended classes since 19 March 2010 nor did Mr Patel access the internal appeal process.
Mr Patel was then reported in PRISMS for non-attendance on 11th May 2010. At this time he was still holding the student visa and was subject to comply with condition 8202. As Mr Patel did not meet attendance requirements he did not comply with condition 8202 and was issued a Section 20 notice.”
On the same page, the delegate went on to say:
“As Swan Training Association Inc has certified that they were not satisfied with Mr Patel’s attendance, Mr Patel has not substantially complied with condition 8202 and therefore does not meet the requirements in clause 572.235.”
The reference in the delegate’s decision to the visa being issued on 31 December 2010 is clearly a typographical error. It is apparent from the visa itself (CB57) that it was granted on 31 December 2008.
The applicants having made their application attended a hearing before the Tribunal on 18 September 2012. On 21 September 2012, the Tribunal affirmed the delegate’s decision not to grant a further student visa. This was because the Tribunal was not satisfied that the applicant had complied with condition 8202(3) as it applied to the subclass 575 visa. The Tribunal found that the applicant’s education provider had certified him as not achieving satisfactory course attendance for the purposes of condition 8202(3)(b).
The Tribunal’s decision is set out at CB6-17. The Tribunal set out the application for review and the relevant law in terms that seem to me to be correct. I note that the Tribunal set out condition 8202 at CB8, including the negative requirement in condition 8202(3)(b) that the applicant must not have been certified by the education provider as not achieving satisfactory course attendance.
The Tribunal noted at paragraphs 22-23 (CB9-10) that the first applicant submitted some documents at the hearing, including academic transcript relating to a course in a Diploma of Production Horticulture undertaken between July 2009 and July 2011 and a Notice of Intention to Consider Cancellation of a visa dated 28 May 2010. The applicant plainly provided his written statement dated 3 June 2010 in which he responded to the Notification (already referred to above) and a medical certificate stating that the applicant was ill between 12 April 2010 and 18 May 2010.
The applicant gave some oral evidence, which does not appear to take the matter further.
The kernel of what the Tribunal determined is set out at paragraph 24 (CB10):
“The Tribunal explained that as the evidence he has given confirms that he was certified by an education provider for non-compliance with Condition 8202(3) while he held a student visa subject to Condition 8202 and that was the last substantive visa he held, the Tribunal is unable to find that he has complied substantially with the conditions that applied to that visa and therefore has no alternative but to affirm the decision under review.”
At CB10-11, the Tribunal set out its reasons for reaching that conclusion. I note the Tribunal found that condition 8202(3) was such that there is no question of substantial compliance. The condition is either satisfied or it is not. The Tribunal clearly rejected the first applicant’s claim on this footing and, of course, the second applicant’s claim stood or fell by that of the first.
The written submissions of the Minister point to the decision of Collier J in Patel v Minister for Immigration and Citizenship (2012) 206 FCR 384, where Collier J held at [52]:
“It is clearly for the education provider to form a view as to whether the visa holder has complied with attendance or academic requirements, and notify the Secretary of the Department of Education, Employment and Workplace Relations in relevant circumstances.”
I note that her Honour was of the view that once the certificate is issued and the notification made, there was no role for the Tribunal in looking behind the notice (see Patel at [74]).
The first respondent’s submissions also refer to the decision of the Full Federal Court in Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199 at [15], in which Heerey and Sundberg JJ, who constituted the majority in that case, concluded that there was no scope for substantial compliance with a condition relevantly indistinguishable from condition 8202(3).
At paragraph 30, the written submissions of the first respondent note a number of judgments of this Court which have applied Jayasekara, to condition 8202.
I have said in another recent decision (Singh v Minister for Immigration and Citizenship [2013] FCCA 384 at [27]) that I did not think that those decisions (which have been referred to in a number of cases before this Court) were clearly wrong. To the contrary, I think they are correct.
In these circumstances, it is clear that the application cannot succeed. The first applicant clearly cannot satisfy condition 8202 once his education provider had issued the relevant certification. He could not meet the requirements of condition 8202(3) because his education provider had certified for him as not achieving satisfactory course attendance.
In these circumstances, plainly he could not meet the requirements of clause 572.235 and plainly he was not entitled to succeed.
I note that the Tribunal considered various other visas that might have been open to the first applicant and concluded, correctly enough in my view, that they were not.
Accordingly, the application will be dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 19 July 2013
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