Julakanti v Minister for Immigration and Border Protection

[2015] HCATrans 40

[2015] HCATrans 040

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M72 of 2014

B e t w e e n -

SANTHOSH REDDY JULAKANTI

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Application for order to show cause

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 25 FEBRUARY 2015, AT 9.30 AM

Copyright in the High Court of Australia

MR R.C. KNOWLES:   Your Honour, if it pleases the Court, I appear for the defendant in this matter.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you, Mr Knowles.  There appears to be no appearance for the plaintiff.  Would you call the matter outside please, Madam Registrar?  Mr Julakanti, you appear for yourself?

MR S.R. JULAKANTI appeared in person.

HIS HONOUR:   Mr Julakanti, you have made an application for an order to show cause by which you seek to overturn ultimately a decision of the Minister’s delegate of 6 March 2013 refusing you an Employer Nomination Resident (Class VN) visa.  This application appears to have been heard in one form or another at almost every level in the hierarchy and has been refused on the basis that the employer nomination, which was a necessary condition of the grant of the visa, was withdrawn at the time that the application was determined.  Do you wish to contest that finding of fact that the nomination had been withdrawn?

MR JULAKANTI:   Yes, nomination withdrawn by the employer without knowing me.

HIS HONOUR:   I beg your pardon – without?

MR JULAKANTI:   Without knowing me.

HIS HONOUR:   Without knowing you?

MR JULAKANTI:   Yes, he did not tell me about anything and then just straight – like he called immigration.

HIS HONOUR:   I am sorry, you will have to speak more slowly, I cannot hear what you are saying.

MR JULAKANTI:   Sorry.  He rang to the immigration and said he is withdrawing the application so I got mail from immigration saying my mail to the ‑ ‑ ‑

HIS HONOUR:   Mr Julakanti, would you mind just moving to the centre so that you can speak into the microphone.  Start again please.

MR JULAKANTI:   Yes, the employer withdraw the nomination without knowing me and he did not tell me about any – about withdrawing the nomination of the ‑ ‑ ‑

HIS HONOUR:   So what you are saying is he withdrew it without notifying you that he had withdrawn it.

MR JULAKANTI:   Yes.

HIS HONOUR:   Yes.

MR JULAKANTI:   And then I got a – immigration sent email to my lawyer and said there is a visa application refusal due to the – withdrawing the ‑ application withdrawn by employer, so that is withdrawn of me because I got a small job in India, by the time I am applying to India, so this employer sponsored me to stay here.  He said he offered me long‑term employment so I cancelled my old program and went to India, so I am planning to stay in Australia and then employer withdrawn nomination so I – my old career…..are fighting for my case.

HIS HONOUR:   Do I understand you to say that the grounds on which you seek to set aside the determination of the Minister are that although the employer withdrew the nomination you were not notified of that in advance of the determination?

MR JULAKANTI:   Yes.

HIS HONOUR:   All right.  Is there anything else that you want to say in support of your application?

MR JULAKANTI:   That is about it, and then I am looking for another sponsorship to get my stay in Australia ‑ settle my career in Australia.

HIS HONOUR:   Now, I do not know whether you have read the reasons for decision of the Migration Review Tribunal, but in those the Tribunal dealt with the point which you are now seeking to make that through no fault of yours, as it were, the employer’s nomination was withdrawn; did you read that?

MR JULAKANTI:   Yes.

HIS HONOUR:   And you would also have read the determination of the Review Tribunal that, although they have sympathy for you about that, it was not a basis for granting the visa.  Do you understand those reasons?

MR JULAKANTI:   Yes, if it is not a sponsorship in my employer nomination I am not supposed to get any visa ‑ ‑ ‑

HIS HONOUR:   Correct.

MR JULAKANTI:   ‑ ‑ ‑so I do not have any sponsorship at the time so they declined my Tribunal as well – in the Migration Tribunal.

HIS HONOUR:   Yes.

MR JULAKANTI:   And then I went to another court, I went to Federal Court and Federal Circuit Court as well, the same thing, but the thing is I am seeking for another sponsorship I am planning to settle my career in Australia.  I have been in Australia last eight years now so I am planning to settle in Australia as well.  I am seeking for the justice that – yes.

HIS HONOUR:   Well, I hope you appreciate I can only deal with this application for review, not with any further application you may make on the basis of another nomination, do you understand that?

MR JULAKANTI:   Yes.

HIS HONOUR:   Is there anything else you want to say in support of the application?

MR JULAKANTI:   That is about it.

HIS HONOUR:   Thank you very much.  Mr Knowles.

MR KNOWLES:   Thank you, your Honour.  The Court should have before it a copy of the defendant’s outline of submissions filed on 20 February 2015 ‑ ‑ ‑

HIS HONOUR:   Yes, I do, thank you.

MR KNOWLES:   ‑ ‑ ‑ as well as an affidavit of instructor, Ms Ngo, which was sworn on 17 February 2015.

HIS HONOUR:   Yes, I have that, thank you.

MR KNOWLES:   Yes, thank you, your Honour.  As your Honour will see, the Minister seeks that this matter be determined today and, in particular, be dismissed with costs on the basis that it presents no reasonable prospect of success.  There is also some further observations about time limits and the matter potentially constituting an abuse of process, but I might just focus on the merits underlying the matter, if your Honour pleases.

HIS HONOUR:   Yes, thank you.

MR KNOWLES:   Just in response to the matters that have been raised today by the plaintiff.  Firstly, he asserts that he did not receive any notification of the withdrawal.  That does not affect, in my submission, whether or not the visa criterion was satisfied.  The visa criterion did not concern whether or not notice had been received, it simply related to whether or not the appointment had been withdrawn or not, and in this case, it had been.  That was the finding of fact that was made.  It was one which was open to the Tribunal on the material before it and also on the material before the delegate.

It does not appear that it is even disputed as such by the plaintiff and, in any event, there is an additional finding in the Tribunal’s decision which goes to support the notion that the visa criteria were incapable of being met by the plaintiff and that is that, in this case, any appointment had not been the subject of approval by the Minister, and that was another aspect of the criterion set out in clause 857.221 of Schedule 2 to the Migration Regulations 1994 that needed to be satisfied and, on the finding of the Tribunal at least, it was not.

Those findings, in my submission, do not show any misconstruction or misapplication of relevant legal principles that apply to the construction of the clause in the regulations, nor do the findings demonstrate any failure on the part of the delegate or the Tribunal to understand the decision‑making task under the Act, that is the Migration Act 1958. Similarly, it cannot be said that there was some failure to afford the plaintiff an opportunity to be heard in each instance. In this case, for instance, there was a hearing before the Tribunal to which he was invited and which he did not attend and did not seek to have rescheduled either.

So, having regard to those matters, it is the Minister’s submission that the underlying merits of the matter are poor, and that would also affect, obviously, any assessment as to whether or not any extension of time ought to be granted in respect of the application so far as it relates to judicial review of the delegate’s decision and the Tribunal’s decision.

HIS HONOUR:   The extension sought is only a few days, is it not?

MR KNOWLES:   Not in respect of the Tribunal’s decision and the delegate’s decision because, as your Honour has already referred to, those decisions have previously been the subject of judicial review proceedings before the – I should not say “those decisions” ‑ the Migration Review Tribunal’s decision was the subject of judicial review before the Federal Circuit Court and then there was an appeal to the Federal Court from the Federal Circuit Court’s order dismissing the application for a judicial review. 

So by the time this matter comes before your Honour, the matter is well out of time in respect of certainly the time limit set in section 486A of the Migration Act 1958 in relation to the time limits in the rules which – that would only apply if your Honour were to find that the Migration Act time limit did not apply, but the time limits in the rules are obviously two months for an application for a writ of mandamus and six months for an application for a writ of certiorari, and in this case the Tribunal’s decision was made on 4 October 2013 and the matter was instituted in this Court on 22 August 2014.  So, as your Honour can see, that is outside of the time limit in respect of the Tribunal’s decision and also the delegate’s decision which preceded, of course, the Tribunal’s decision.  Those are matters that are set out in the written outline of submissions.  I did not intend, unless your Honour wished me to do so ‑ ‑ ‑

HIS HONOUR:   No, thank you.

MR KNOWLES:   ‑ ‑ ‑to go through those in any detail this morning.  The fundamental point that I just wish to make before your Honour was that in this case at its heart the matter has no reasonable prospect of success, in the Minister’s submission.

HIS HONOUR:   Thank you, Mr Knowles.

MR KNOWLES:   Thank you, your Honour.

HIS HONOUR:   Mr Julakanti, you have heard what Mr Knowles has had to say, is there anything that you wish to say by way of reply to him?

MR JULAKANTI:   No.

HIS HONOUR:   Thank you, Mr Julakanti.

This is an application for extension of time and for an order to show cause by which the plaintiff seeks to overturn a decision of the Minister’s delegate made on 6 March 2013 to refuse the plaintiff an Employer Nomination Residence (Class BW) visa, Subclass 857 (Regional Sponsored Migration Scheme) visa.

The primary criterion to be satisfied at the time of application for a Subclass 857 visa is that the applicant have been nominated in the business of an employer.  As appears from the delegate’s reasons for decision, the delegate found as a fact that the criterion was not satisfied because the nomination of the applicant by Bryant Concepts Proprietary Limited on which the applicant relied had been withdrawn on 5 March 2013 before the determination of the delegate.

On 19 March 2013, the applicant applied to the Migration Review Tribunal for review of the delegate’s decision.  The grounds of review included, if indeed they were not limited to, the fact that the plaintiff had not been notified by the employer of the withdrawal of nomination before consideration of the matter by the delegate.

On 4 October 2013, the Migration Review Tribunal affirmed the delegate’s decision, noting in its letter of advice to that effect that the plaintiff had not appeared before the Migration Review Tribunal and offering the plaintiff an opportunity to do so should he wish.  He did not avail himself of that opportunity.

On 31 October 2013, the plaintiff applied to the Federal Circuit Court for judicial review of the Tribunal’s decision, but on 30 May 2014 the Federal Circuit Court ordered that the application for review be dismissed with costs.

On 12 June 2014, the plaintiff appealed to the Federal Court of Australia from the decision of the Federal Circuit Court, and on 13 August 2014 her Honour Justice Davies ordered that the appeal be dismissed with costs.  Her Honour noted in her reasons for judgment that the failure of the employer to notify the plaintiff that the nomination had been withdrawn was not a basis for review of the delegate’s decision and that, because the existence of the nomination was an essential condition of the grant of the visa which the plaintiff sought, his application for review was bound to fail.

The applicant does not dispute that his sponsor withdrew the nomination before the determination which he seeks to review.  Consequently, as he appears to accept, but in any event the fact is he cannot satisfy the criterion for issue of the visa which he seeks.  His contention that he was misled by his employer, in that the employer failed to notify him of the withdrawal of the nomination, although something which has attracted sympathy at various levels of review along the way, is not a basis for review of the decisions which he seeks to challenge.

Ultimately, as has been explained by the Federal Circuit Court and by the Federal Court before the matter reached this level, the grounds on which the applicant seeks to review the decisions below have no reasonable prospects of success. In the result, as it appears to me that this application is bound to fail, I am disposed to dismiss it pursuant to section 25A(2) of the Judiciary Act 1903.

The order of the Court, therefore, is that the application be dismissed with costs.

Mr Julakanti, the effect of that is you have lost the application.  The matter is now over.  You are free to go, or if you wish to sit in the back, but your matter is now completed.

MR JULAKANTI:   Thank you.

AT 9.48 AM THE MATTER WAS CONCLUDED