Patel v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 806

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Patel v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 806

File number: MLG 1685 of 2018
Judgment of: JUDGE KENDALL
Date of judgment: 30 May 2025
Catchwords: MIGRATION – Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence provided by the applicants – whether there were problems with the interpretation provided at the Tribunal hearing or the way in which the first applicant was questioned by the Tribunal – whether the first applicant met the criteria for the grant of the visa – no jurisdictional error – application dismissed.
Legislation:

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 & 25 in Schedule 16

Migration Act 1958 (Cth), s 476

Migration Regulations 1994 (Cth), cll 500.2, 500.111, 500.211, 500.212 & 500.218 in Schedule 2

Cases cited:

Applicant NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62

Bala v Minister for Immigration & Border Protection [2019] FCA 600

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

Craig v State of South Australia (1995) 184 CLR 163

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294

Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 771

SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109

SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212

SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

SZVUP v Minister For Immigration & Border Protection & Anor [2015] FCCA 1287

Tshering v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 95

WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131
Division: Division 2 General Federal Law
Number of paragraphs: 85
Date of hearing: 18 February 2025
Place: Perth
Applicants: First applicant appeared in person
Counsel for the First Respondent: Mr R O’Shannessy
Second Respondent: Submitting appearance, save as to costs
Solicitor for the Respondents: Mills Oakley Lawyers

ORDERS

MLG 1685 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

RENUKABEN KAMLESHKUMAR PATEL

First Applicant

KAMLESH KUMAR KANTILAL PATEL

Second Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

30 MAY 2025

THE COURT ORDERS THAT:

1.The name of the first respondent be…

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Patel v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 806
Case
[2025] FedCFamC2G 806
Decision Date

CaseChat Overview and Summary

The Federal Circuit Court of Australia was called upon to review the decision of the Administrative Appeals Tribunal in the matter of Patel v Minister for Immigration and Multicultural Affairs. The applicants, citizens of India and husband and wife, were seeking judicial review of the Tribunal’s decision to refuse their student visas. The key legal issues before the Court were whether the Tribunal had failed to consider evidence provided by the applicants, whether there were problems with the interpretation at the Tribunal hearing or the way the first applicant was questioned, and whether the first applicant met the criteria for the grant of the visa. The applicants argued that the Tribunal did not adequately consider their evidence and that the Tribunal’s questioning and interpretation of their responses were flawed.

The Court found that the Tribunal had considered all relevant evidence and had not erred in its interpretation or questioning of the first applicant. The Court examined the Tribunal’s decision in detail, noting that it had given weight to various factors, including the first applicant’s application for a permanent visa which the Court found was incompatible with her claim to be a genuine temporary entrant. The Court also considered the first applicant’s credibility, finding that her answers at the hearing were vague and evasive. Based on this assessment, the Court concluded that there was no jurisdictional error in the Tribunal’s decision.

As a result of this finding, the Court dismissed the applicants’ application for judicial review. The Tribunal’s decision was upheld, and the applicants’ appeal was rejected. The Court did not find any grounds for substituting the Administrative Appeals Tribunal’s decision with its own, affirming the Tribunal’s findings and conclusions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 14 June 2018, the applicants sought judicial review of the Tribunal’s decision by the then Federal Circuit Court of Australia (“FCCA”) (CB 212-217). With that application the applicants filed an affidavit affirmed by the first applicant. That affidavit also annexed a copy of the Tribunal’s decision and associated notification letter and attachments (CB 218-230).THE TRIBUNAL’S DECISION The application for judicial review is brought pursuant to s 476 of the Act. To succeed before this Court, the applicants must demonstrate that the Tribunal fell into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail. The Tribunal’s decision is seven pages long and spans 37 paragraphs (CB 205-211). The Tribunal began by outlining the applicants’ migration history, noting that they had applied for the visas on 15 December 2016 and that a delegate of the Minister had refused to grant the applicants those visas on 23 January 2017. The Tribunal acknowledged that the applicants had sought review of that decision on 2 February 2017 and confirmed that a copy of the delegate’s decision had been provided with that review application. The Tribunal further confirmed that the applicants had been invited to attend a hearing before it scheduled for 5 June 2018 and that the first applicant had contacted the Tribunal on 29 May 2018 seeking a postponement of that hearing because her mother was unwell. The Tribunal explained that because there was no suggestion that the first applicant was intending to travel offshore to be with her mother and because the hearing was scheduled to take place by telephone, the postponement request was refused. The Tribunal confirmed that the first applicant provided a copy of a current COE to the Tribunal on 4 June 2018 and appeared at the Tribunal hearing on 5 June 2018 (with the assistance of an interpreter) to give evidence and present arguments (at [1]-[10]). The Tribunal identified that the question before it was whether the first applicant was a genuine applicant for entry and stay as a student, having regard to “all relevant facts and matters” and using Ministerial Direction No. 69 (the “Direction”) as a guideline. The Tribunal confirmed that “weight [had] been given to various and relevant factors” in that regard (at [11]-[13]). The Tribunal explained that there was evidence before it that the first applicant had applied for a Regional Migration (Permanent Resident) (Subclass 187) visa (the “permanent visa”) on 30 June 2017 and that her husband and two sons were included in that permanent visa application. The Tribunal considered that the lodging of the permanent visa application was “incompatible with a concurrent claim, under the student visa programme, to be a genuine temporary entrant” (at [14]). The Tribunal did not consider the first applicant “to be a witness of credit”, noting that she had given “vague and non-responsive answers to questions” at the Tribunal hearing which, the Tribunal considered, was a result of her being evasive (rather than due to any misunderstanding) (at [15]).

Ratio Decidendi

Legal Principle Established

In the circumstances, this Court made an order (at the first hearing in this matter held before this Court on 24 January 2025) substituting the ART as the second respondent in this proceeding.The applicants’ migration history The applicants in this matter are citizens of India (Court Book (“CB”) 2-5 & 26-29). They are wife and husband respectively (CB 2-4). They arrived in Australia in October 2008 as holders of an initial Student (Class TU) (Subclass 573) visa (granted earlier in October that same year) (CB 191 & 194). On 15 December 2016, the first applicant applied for a Student (Class TU) (Subclass 500) visa (the “visa”) (CB 1-23). The second applicant was included in that visa application as a member of the first applicant’s family unit (CB 4-5). The applicants provided a number of supporting documents with their visa application (CB 24-101), including a document titled “Genuine Temporary Entrant Criteria Explanation” (CB 24-25). That document stated that the first applicant was enrolled in an Advanced Diploma of Marketing and Communication course (CB 24). On 15 December 2016, the then Department of Immigration and Border Protection (the “Department”) acknowledged receipt of the first applicant’s visa application (CB 102). On 23 January 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 108-115). The delegate was not satisfied that the first applicant met cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate was not satisfied that the first applicant “genuinely intended to stay in Australia temporarily” (CB 115). On 2 February 2017, the applicants sought review of the delegate’s decision by the Tribunal (CB 116-128). With that review application, the applicants provided the Tribunal with copies of the delegate’s decision and the letter from the Department notifying them of that decision (CB 129-141). On 8 February 2017, the Tribunal acknowledged receipt of the applicants’ review application (CB 142-144). On 28 February 2018, the Tribunal invited the applicants to attend a hearing before it (by telephone), scheduled to take place on 27 March 2018 (CB 145-153). On 14 March 2018, the Tribunal wrote to the applicants and advised that, “[d]ue to circumstances beyond [their] control, the Member [was] unable to conduct the hearing” on the scheduled hearing date and, as such, they would be contacted as soon as a new hearing date was available (CB 154-155). On 10 May 2018, the Tribunal notified the applicants that the new hearing date was 5 June 2018 (CB 156-159). The Tribunal also asked the applicants to provide the following information (CB 158):1.A copy of your current Certificate of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994, as is required for the grant of a student visa.2.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.3.We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.