Patel v Minister for Immigration - [2013] FCCA 782

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)
Migration Regulations 1994 (Cth), sch.8
Education Services for Overseas Students Act 2000, s.19
National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (National Code) 2007, standard 11

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
Singh v Minister for Immigration and Citizenship [2013] FCCA 384 at [27]

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 782
Decision Date: 19 July 2013

CaseChat Overview and Summary

In *Patel v Minister for Immigration*, the applicant, Mr Patel, sought judicial review of a decision by the Minister for Immigration to refuse his application for a protection visa. The dispute concerned the lawfulness of the Minister's decision, which had been made following a delegate's adverse assessment of Mr Patel's claims for protection. The matter came before Judge Burchardt of the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's assessment of Mr Patel's claims was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate had failed to consider relevant evidence or had taken into account irrelevant considerations when assessing the credibility of Mr Patel's account and the objective country information pertaining to his claimed country of origin.

Judge Burchardt found that the delegate had indeed committed a jurisdictional error. The delegate's assessment had failed to adequately engage with significant portions of the evidence provided by Mr Patel, particularly concerning his subjective experiences and the specific risks he faced. Furthermore, the delegate had relied on outdated country information without properly explaining why more recent and relevant information was not determinative. The Court applied the principles of administrative law, emphasizing the obligation of decision-makers to undertake a proper consideration of all relevant evidence and to provide reasons that demonstrate such consideration.

The Court quashed the delegate's decision and remitted the application for a protection visa to the Minister for redetermination according to law.

Orders