Patel v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 309

MIGRATION – Migration Review Tribunal – cancellation of visa – whether applicant provided a document to the Minister – whether the cancellation notice adequately identified the non-compliance.

Migration Act 1958, ss.97; 103; 107; 108; 109; 359A

Shu v MIMIA [2003] FCA 791

Applicant: ARJAN PATEL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 1332 of 2010

Judgment of: Riley FM

Hearing date: 13 April 2011

Date of last submission: 13 April 2011

Delivered at: Melbourne

Delivered on: 3 June 2011

REPRESENTATION

Counsel for the Applicant: John A Gibson

Solicitors for the Applicant: FCG Legal Pty Ltd

Counsel for the First Respondent: Emily Latif

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Clayton Utz

DECLARATION

The decision of the second respondent made in matter 0904628 is unlawful, void and of no force and effect.

ORDERS

1. There be an order in the nature of a writ of certiorari bringing in to court and quashing the decision of the second respondent in matter 0904628 made on 8 September 2010.

2. There be an order in the nature of a writ of prohibition prohibiting the respondents from giving effect to that decision.

3. The first respondent pay the applicant’s costs fixed in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1332 of 2010

ARJAN PATEL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision of the Migration Review Tribunal.  The Tribunal affirmed a decision of the delegate of the first respondent to cancel the applicant’s subclass 880 skilled independent overseas student visa.  The cancellation was based on the view that the applicant had given a bogus document to the first respondent.

Background

1. The applicant undertook a Bachelor of Business (Accounting) at Central Queensland University.  While doing so, the applicant was permitted by CQU to undertake cross-institutional studies at the University of Southern Queensland.  The study undertaken by the applicant at USQ was the subject of Auditing. 

2. The applicant provided to CQU a false academic transcript which indicated that the applicant had passed Auditing at USQ when he had not.  Partly on the basis of the false academic transcript, CQU:

   a)gave the applicant a Notification of Completion, which indicated that he had completed the requirements for a Bachelor of  Business (Accounting); and

   b)awarded the applicant a Bachelor of Business (Accounting).

3. Subsequently, the applicant gave the Notification of Completion to the immigration department for the purposes of obtaining the visa that is the subject of these proceedings.

Issues

1. The issues before the court are essentially:

   a)whether the applicant gave a bogus document, as defined, to an officer; and

   b)if so, whether the notice to the applicant of the Minister’s intention to consider cancelling the applicant’s visa adequately identified the applicant’s non-compliance.