Potlacheruvu v Minister for Immigration

[2014] FCCA 389

FEDERAL CIRCUIT COURT OF AUSTRALIA

POTLACHERUVU v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 389

Catchwords:
MIGRATION – Review of Migration Review Tribunal – no matter of principle – application dismissed.

Legislation:  
Migration Act 1958

Applicant: NITHIN KUMAR POTLACHERUVU

Respondent: MINISTER FOR IMMIGRATION & ANOR

File Number: MLG 1695 of 2013

Judgment of: Judge Riethmuller

Hearing date: 31 January 2014

Date of Last Submission: 31 January 2014

Delivered at: Melbourne

Delivered on: 31 January 2014

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondent: Mr Hornsby

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application filed on 10 October 2013 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $4,323.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1695 of 2013

NITHIN KUMAR POTALCHERUVU

Applicant

And

MINISTER FOR IMMIGRATION & ANOR

Respondent

REASONS FOR JUDGMENT

(As Revised from Transcript)

1. This is an application for judicial review of a decision of the Migration Review Tribunal.  The tribunal made a decision on 16 September 2013, refusing to overturn a decision of the delegate which refused to grant the Applicant a student visa.

2. The Applicant applied for a visa to study in Australia on 20 December 2011.  At the time of the delegate’s decision, the Applicant was proposing to undertake a Certificate IV course in Hospitality (Commercial Cookery).

3. The delegate refused the Applicant’s application, noting that he had been in Australia for three years and only obtained a Certificate III in Hospitality, that he was already qualified as a cook in Australia and so there seemed to be no additional value to him studying hospitality for another two years, and that it seemed to the delegate that he wanted to undertake short courses simply to remain in Australia rather than to achieve an appropriate educational outcome.

4. On 22 July 2013, the tribunal wrote to the Applicant advising him that, on the material that the tribunal had, it was not able to make a favourable decision and invited him to submit more material.  The Applicant did not attend for the first hearing, sending instead a medical certificate.  The Applicant did not appear at the postponed hearing. Ultimately, the tribunal made a decision based upon the material that had been sent to it. 

The Tribunal’s decision

1. The tribunal turned to the core question it was required to answer, that is, whether the Applicant, at the time of the tribunal’s decision, met the criteria for a student visa.  As one would expect, one of the requirements for a student visa is that an Applicant must be enrolled in a course or have a current offer of enrolment in a course of study.  At para.15 of the decision, the tribunal said:

   There is no evidence before the tribunal that the applicant is now enrolled in or has a current offer of enrolment in any applicable course of study.

2. The Applicant does not challenge this factual finding of the tribunal, but explains that his personal circumstances are such that he did not have the money to enrol in a course at that time.

3. The way that the law is structured is that I can only decide whether or not the tribunal has made a jurisdictional error.  I do not have any general powers to change the regulations because of personal circumstances of applicants.  My powers are limited to correcting errors of law made by the tribunal or the Department.

4. In this case, there is nothing that the Applicant has identified to show any error on the part of the tribunal.  As he was not enrolled, and did not have an offer of enrolment, as a student at the time of the decision of the tribunal, he simply could not get a student visa.  Whether he has options to apply again for a student visa or a work visa or some other form of visa are for him to explore with his migration advisor or the Department.

5. In the circumstances, I therefore dismiss his application for review.

Costs

1. In this application, the Applicant has been entirely unsuccessful.  Costs should follow the outcome.  Having regard to the Court scale, I accept that the reasonable costs are $4,323.  I therefore order that the Applicant pay the respondent’s costs fixed at $4,323.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  4 March 2014