Patel v Minister for Immigration - [2011] FMCA 875

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATEL & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 875

MIGRATION – Application for judicial review of decision by Migration Review Tribunal – refusal to grant student visa – whether requirements of English language proficiency satisfied – where early withdrawal from course – where IELTS test score is below minimum requirement – where ELICOS previously undertaken fails to satisfy future requirement – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.65
Migration Regulations 1994 (Cth), Schedule 5A, cl.5A404

Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8
Minister for Immigration and Citizenship v Grantand Others (2009) 180 FCR 179; [2009] FCA 1059
Minister for Immigration and Citizenship v Kamal (2009) 178 FCR 379; [2009] FCAFC 98

First Applicant:

HETALBEN PRAKASHBHAI PATEL

Second Applicant:

PRAKASHBHAI PATEL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 184 of 2011

Judgment of:

Raphael FM

Hearing date:

10 November 2011

Date of Last Submission:

10 November 2011

Delivered at:

Perth

Delivered on:

10 November 2011

REPRESENTATION

For the Applicants:

In person

Counsel for the Respondents:

Mr A Gerrard

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.
The Applicants pay the Respondents’ costs in the sum of $6,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 184 of 2011

HETALBEN PRAKASHBHAI PATEL

First Applicant

PRAKASHBHAI PATEL

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

There comes before me today an application for review of a decision[1] of the Migration Review Tribunal,[2] determined on 14 June 2011, to affirm a decision not to grant the Applicants Student (Temporary) (Class TU) Visas.[3] In fact the Decision relates to the First Applicant.[4] The Second Applicant[5] is Mrs Patel’s husband, whose visa status depends entirely upon that of his wife.
[1] “Decision”.
[2] “Tribunal”.
[3] “Student Visa”.
[4] “Mrs Patel”.
[5] “Mr Patel”.
The application for the Student Visa was made on 24 August 2010.[6] Mrs Patel listed her intended study as a Diploma of Business Management at the Technical College of Western Australia. In order to obtain the Student Visa, Mrs Patel had to satisfy the requirements of the visa which were contained in the Migration Act 1958 (Cth)[7] and the Migration Regulations 1994 (Cth)[8] as at the date of the decision. Section 65 of the Act states:
[6] “Visa Application”.
[7] “Act”.
[8] “Regulations”.
Decision to grant or refuse to grant visa
(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel)…

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: [2011] FMCA 875
Decision Date: 10 November 2011

CaseChat Overview and Summary

In the Federal Court, the matter of Patel v Minister for Immigration was heard. Mrs Patel, an Indian citizen, applied for a Student Visa to study in Australia. The application was made on 24 August 2010 and intended for her to pursue a Diploma of Business Management at the Technical College of Western Australia. The case hinged on whether Mrs Patel met the English language proficiency requirements stipulated in the Migration Regulations 1994 (Cth).

The legal issues the court needed to decide involved interpreting the requirements for English language proficiency under the Migration Regulations. Specifically, the court had to determine whether Mrs Patel's IELTS score, taken two years prior, met the criteria for a Student Visa. The regulations under consideration required a certain IELTS score, depending on whether the applicant intended to undertake an English Language Intensive Courses for Overseas Students (ELICOS) before commencing their principal course.

The court examined Mrs Patel's IELTS test results, which were taken more than two years before her visa application. Despite completing an ELICOS course and enrolling in another course, the court found that the IELTS test results did not meet the required standard. The court held that the regulations were clear and required the test to be taken within two years of the application. As a result, Mrs Patel's application did not satisfy the necessary criteria, leading to the dismissal of her visa application. Additionally, the court ordered that Mrs Patel pay the Minister's costs amounting to $6,200.

Orders

Orders of the court

The application be dismissed.

The Applicants pay the Respondents’ costs in the sum of $6,200.

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

The application for the Student Visa was made on 24 August 2010.[6] Mrs Patel listed her intended study as a Diploma of Business Management at the Technical College of Western Australia. In order to obtain the Student Visa, Mrs Patel had to satisfy the requirements of the visa which were contained in the Migration Act 1958 (Cth)[7] and the Migration Regulations 1994 (Cth)[8] as at the date of the decision. Section 65 of the Act states: [6] “Visa Application”.[7] “Act”.[8] “Regulations”.Decision to grant or refuse to grant visa (1) After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and (iv) any amount of visa application charge payable in relation to the application has been paid; is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa. Note: See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister's power under that section. (2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3). The relevant regulations for the grant of the Student Visa included regulations relating to Mrs Patel’s competence in English. These are found in Schedule 5A of the Regulations. The assessment level that was relevant to Mrs Patel, being a citizen of India, was assessment level 4. The relevant requirements under assessment level 4 are provided in clause 5A404 of Schedule 5A of the Regulations, the whole of which was set out in the Tribunal Decision [CB139-141]. The most relevant section of the requirement is that contained in cll.5A404(a) and (b) which states:5A404 English language proficiency The applicant must give evidence that one of the following applies: (a) the applicant: (i) will not undertake an ELICOS before commencing his or her principal course; and (ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5; (b) the applicant: (i) will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course; and (ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.0; [emphasis added] Mrs Patel completed a five-week ELICOS course in April-May 2009. She also completed an IELTS on 25 October 2008 [CB33]. Following the ELICOS course, she enrolled in a Diploma of Business at the Perth Institute which she studied for one semester before cancelling her enrolment in December 2009. Mrs Patel decided to change her course to a Certificate III in Printing and Graphic Arts at the Technical College of Western Australia which ran between January 2010 and January 2011.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.