Chintalapudi v Minister for Immigration

[2014] FCCA 2770

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHINTALAPUDI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2770

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal – no proper grounds identified – application dismissed with costs.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth),

Migration Regulations 1994 (Cth), cl.485.214 of Schedule 2

Applicant: KIRAN KUMAR REDDY CHINTALAPUDI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 46 of 2014

Judgment of: Judge Simpson

Hearing date: 11 November 2014

Date of Last Submission: 11 November 2014

Delivered at: Adelaide

Delivered on: 11 November 2014

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Ms Stokes for the Australian Government Solicitors

ORDERS

1. The application for judicial review filed 13 February 2014 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 46 of 2014

KIRAN KUMAR REDDY CHINTALAPUDI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

1. When this matter was called on a little earlier today, I satisfied myself that the applicant had had a good opportunity to study the green book and the first respondent’s Outline of Submissions. 

2. The applicant was given an opportunity to put submissions to me.  During those submissions, the applicant did not attempt to say that there was a jurisdictional error.  In fact, the applicant conceded that the Migration Review Tribunal (“the Tribunal”) did not make an error when it decided to make the order that it did.

3. What the applicant pressed was that he wanted more time to be able to do what was necessary to comply with the requirements of the visa that he is seeking. 

4. The background to this matter is as follows.  It is an application for judicial review of a decision of the Tribunal.  The Tribunal affirmed a decision of the delegate of the first respondent not to grant a Skilled (Provisional) (Class VC) (subclass 485) Skilled Graduate visa (“the visa”).  I pointed out to the applicant that he has to establish that the Tribunal’s decision was affected by jurisdictional error to have the orders that the Tribunal made set aside.  I also summarised what was meant by jurisdictional error.  The submission on behalf of the Minister is that there was no jurisdictional error and that the proceedings should be dismissed. 

5. The applicant is a national of India who arrive in Australia on 14 January 2008.  At the time he held an Indian passport and a Class TU (Student) visa.  The applicant applied for the visa on 31 March 2012.  The application nominated his occupation as Business Machine Mechanic with the relevant assessing authority to be Trades Recognition Australia. 

6. On 14 November 2012, the Delegate of the Minister refused the application on the grounds that the applicant did not satisfy the requirements under cl.485.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”), as he had not applied for an assessment of his skills for his nominated occupation by a relevant assessing authority.

7. On 28 November 2012, the applicant applied for a review of the Delegate’s decision by the Tribunal.  The Tribunal invited the applicant to appear before it on 11 September 2013 so that he could give evidence and present arguments relating to the issues arising in the case.  On 11 October, the applicant attended the scheduled hearing via telephone. 

8. The Tribunal ultimately affirmed the decision under review on the basis that the applicant did not satisfy the clause that I mentioned a little earlier, that is, cl.485.214. In its decision dated 10 January 2014, the Tribunal commenced its consideration of the claims and evidence by relevantly noting that the applicant must have applied for a skills assessment for his nominated skilled application and been assessed suitable for that occupation to satisfy the primary criteria.

9. The Tribunal also noted that at the hearing, the applicant confirmed that he had not applied for, or obtained, an assessment of his skills as a Business Machine Mechanic, which is the nominated occupation specified in his application, or as a Business Manager, the occupation he told the Tribunal that he actually wished to pursue. Accordingly, the Tribunal found that the applicant did not meet cl.485.214 because at the time he applied for the visa, he had not applied for a skills assessment of his nominated occupation. As this was an essential criteria for the grant of the visa, the Tribunal affirmed the decision under review.

10. On 13 February 2014, the applicant applied to this Court for judicial review.  In his application he sought an order that the decision of the Tribunal be quashed.  The grounds of the application were as follows:

    “(1)Section 477, judicial review can be lodged within 28 days after Tribunal review has been finalised.

    (2)I am not happy with Tribunal decision applying for judicial review for legitimate decision.

    (3)I do have exceptional circumstances beyond the application lodgement previously.

    (4)There are same cases which have got positive decisions in High Court, therefore, I hope that I could win the case I, High Court.”

    These are the only grounds of review.

11. I agree with the submissions put on behalf of the first respondent, namely, that ground 1 is not a proper ground for judicial review. 

12. Ground 2 amounts to a statement of “emphatic disagreement with the outcome”, to use the words referred to by the first respondent.  I reject ground 2 as not being a proper ground for challenging the Tribunal’s decision. 

13. The point raised in ground 3 of the applicant’s grounds bears no connection to the matters which fell for determination by the Tribunal.  I agree with the first respondent that that ground must fail also.

14. The first respondent submits that, similarly, ground 4 is merely a statement which does not otherwise challenge the Tribunal’s decision in any way.  I agree with that submission.  Unfortunately, for the applicant, there is really nothing in the grounds that the applicant can rely upon.  It is, in my view, an inevitable conclusion that I should dismiss the application filed on 13 February 2014.  There is no merit in the applicant’s grounds and in my view, no other unstated ground that would justify setting aside the decision of the Tribunal.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 27 November 2014