Patel v Minister for Immigration and Border Protection

[2013] FCA 1181

FEDERAL COURT OF AUSTRALIA

Patel v Minister for Immigration and Border Protection [2013] FCA 1181

Citation:	Patel v Minister for Immigration and Border Protection [2013] FCA 1181
Appeal from:	Patel & Anor v Minister for Immigration & Anor [2013] FCCA 782
Parties:	HASMUKHKUMAR PRAHLADBHAI PATEL and SANGITABEN HASMUKHBHAI PATEL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number:	VID 806 of 2013
Judge:	MARSHALL J
Date of judgment:	12 November 2013
Date of hearing:	8 November 2013
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No catchwords
Legislation:	Migration Act 1958 (Cth) ss 359A
Number of paragraphs:	8
Counsel for the Appellants:	The first appellant appeared for himself and the second appellant with an interpreter
Counsel for the First Respondent:	Mr N Rogers
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 806 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

HASMUKHKUMAR PRAHLADBHAI PATEL
First Appellant

SANGITABEN HASMUKHBHAI PATEL
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	8 NOVEMBER 2013
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The title of the proceeding be amended so the name of the first respondent is amended to read, “Minister for Immigration and Border Protection”.

2.The appeal is dismissed.

3.The appellants pay the first respondent’s costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 806 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

HASMUKHKUMAR PRAHLADBHAI PATEL
First Appellant

SANGITABEN HASMUKHBHAI PATEL
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	12 NOVEMBER 2013
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 8 November 2013, the Court made the orders appearing in the order page accompanying these reasons for judgment. What follows are its reasons for so doing.

2. The appellants appeal from a judgment of the Federal Circuit Court published on 19 July 2013. The application before the Court below did not state any grounds of review. It was proposed by the first appellant without the benefit of the assistance of a lawyer. It stated in effect that the Migration Review Tribunal (“the Tribunal”) made a decision on 21 September 2012 rejecting his student visa and that he wished to have that decision reviewed.

3. The appellants failed to appear before the Court below. However, the Federal Circuit Court Judge considered the history of the matter including the following:

   ·the appellants are citizens of India;

   ·the first appellant arrived in Australia on 12 January 2009 as the holder of a temporary student visa granted on 31 December 2008;

   ·the second appellant is his spouse;

   ·the Swan Training Association certified on 11 May 2010 that the first appellant had not achieved satisfactory attendance and thereby breached a condition of his visa;

   ·on 31 August 2010, the first appellant applied for a further student visa, which a delegate of the Minister refused to grant;

   ·on 21 September 2012, the Tribunal affirmed the delegate’s decision not to grant the first appellant another student visa.

4. The Court below carefully considered the Tribunal’s reasons and relevant authorities and considered that there is no judicially reviewable error in the Tribunal’s decision. The only ground of appeal raised by the appellants concerned the failure of the Court below to find that the Tribunal breached s 424A of the Migration Act 1958 (Cth) (“the Act”).

5. Section 424A of the Act applies to decisions of the Refugee Review Tribunal only. The corresponding section which applies to the Tribunal is s 359A. It provides:

   (1)      Subject to subsections (2) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)       invite the applicant to comment on or respond to it.

   (2)      The information and invitation must be given to the applicant:

   (a)       except where paragraph (b) applies—by one of the methods specified in section 379A; or

   (b)       if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

   (3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

   (4)      This section does not apply to information:

   (a)       that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)       that the applicant gave for the purpose of the application for review; or

   (ba)     that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)       that is non‑disclosable information.

6. The appellants did not assert a breach of s 359A in the proceeding below. The Court below did not consider the matter and cannot be criticised for failing to deal with an issue which was not before it. The appellants did not identify any adverse material which the Tribunal relied upon which they did not have an opportunity to address.

7. The appellants did not advance any additional reasons as to why they say the Court below made an appealable error in dismissing the application before it. The first appellant submitted that he required an interpreter before the Tribunal but did not raise any issue of that kind before the Court below. He also did not say how he was inhibited in the presentation of his case before the Tribunal or why he did not attend the hearing before the Court below.

8. The appeal must be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:       12 November 2013