Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 3160

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2019] FCCA 3160

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the applicant satisfied clause 500.311 of the Migration Regulations 1994 (Cth) as the member of a family unit of a person who holds a student visa and who satisfies the primary criteria of that visa – applicant’s father was the primary applicant for a student visa – whether the applicant’s father in Patel & Anor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2019] FCCA 3161 demonstrated jurisdictional error – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476

Migration Regulations 1994 (Cth), sch.2, cls.500.217, 500.311, sch.4

cl.4020

Cases cited:

Patel & Anor v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs and Anor [2019] FCCA 3161

Applicant: AARYA KALPESHKUMAR PATEL

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number:   SYG 1106 of 2018

Judgment of: Judge Emmett

Hearing date: 28 October 2019

Date of Last Submission: 28 October 2019

Delivered at: Sydney

Delivered on: 6 November 2019

REPRESENTATION

Solicitor for the Applicant: Mr Michael Jones
(Parish Patience Immigration Lawyers)

Solicitor for the Respondents: Mr Karwan Eskerie
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1106 of 2018

AARYA KALPESHKUMAR PATEL

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 27 March 2018 (“the Tribunal”), affirming a decision of a delegate of the first respondent made on 13 October 2017 refusing the primary visa applicant a Student (Temporary) (Class TU) (Subclass 500) visa. The applicant’s father is the primary visa applicant.

2. The applicant is a minor born on 17 June 2017. On 30 May 2018, the primary applicant (the applicant’s father) was appointed as the applicant’s litigation guardian. The applicant’s father and mother Kalpeshkumar Jayanthibhai Patel and Falgunibahen Kalpeshkumar Patel, are the subject of proceedings Patel & Anor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2019] FCCA 3161 in this Court.

3. The applicant was represented before this Court by her solicitor Mr Michael Jones, who also represented her parents in their separate proceeding referred to above.

4. Mr Jones confirmed that the applicant relied on the ground identified in her application, filed on 20 April 2018, as follows:

   “1. The Tribunal decision was based on an error of law in another case.

   Particulars

   The Tribunal found that the Applicant did not satisfy the criterion in cl 500.311 because the refusal of her father's application for a subclass 500 visa had been affirmed by the Tribunal on the previous day. The previous decision was affected by an error of law in the interpretation of Public Interest Criterion 4020.”

5. It is common ground that the applicant’s application for judicial review before this Court is entirely dependent on the outcome of her father’s application, as is her mother’s. The grounds of the primary applicant (the applicant’s father) in Patel & Anor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2019] FCCA 3161 are as follows:

   “1. The Tribunal erred in its interpretation of Public Interest Criterion 4020.

   Particulars

   The Tribunal found that an isolated piece of information was false or misleading in a material particular. If it had correctly interpreted the criterion it should have considered that piece of information in the context of all of the information provided in relation to the application.

   2. The Tribunal denied procedural fairness to the Applicants in relation to a purported certificate under s 375A of the Act.

   Particulars

   (a) The Tribunal did not provide the Applicants with a copy of the certificate.

   (b) The Tribunal did not provide sufficient particulars of the information said to be contained in the documents referred to in the certificate to enable the Applicants to challenge its validity or to respond to any adverse information.”

6. The issue in the present case is whether the applicant meets the criteria for the grant of the Student visa as a member of the family unit of the primary applicant as required by cl.500.311 of the Migration Regulations 1994 (Cth) (“the Regulations”).

7. The outcome of the applicant’s father’s application (the primary applicant) for judicial review and the reasons are found in Patel & Anor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2019] FCCA 3161, dismissing the primary applicant’s application for judicial review on the basis that the decision of the Administrative Appeals Tribunal, dated 26 March 2018, is not affected by jurisdictional error. The primary applicant was found not to have complied with Public Interest Criterion 4020, being a mandatory criterion for the grant of the Student visa to the primary applicant, for the purposes of cl.500.217 of the Regulations.

8. In the circumstances, the Tribunal was not satisfied that the applicant meets cl.500.311 of the Regulations because she is not a member of the family unit of a person (the primary person) who holds a Student visa and who has satisfied the primary criteria for that visa.

9. Accordingly, the Tribunal’s decision is not affected by jurisdictional error and the proceeding before this Court commenced by way of application, filed on 20 April 2018, should be dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate:

Date: 6 November 2019