Kuldeep Singh & Anor v Minister for Immigration and Border Protection

[2015] HCASL 219

KULDEEP SINGH & ANOR

v

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR

[2015] HCASL 219
M201/2015

1. The applicants are nationals of India. On 24 February 2012, a delegate of the first respondent rejected the applicants’ application for Skilled (Provisional) (Class VC) Subclass 485 (Skilled – Graduate) visas on the basis that the first‑named applicant did not give evidence of competent English as required by cl 485.215 of Sched 2 to the Migration Regulations 1994 (Cth). The delegate’s decision was affirmed by the Migration Review Tribunal ("the Tribunal") on 11 July 2013.

2. The applicants applied to the Assistant Minister for Immigration and Border Protection ("the Assistant Minister") requesting that she exercise her power under s 351 of the Migration Act 1958 (Cth) ("the Act") to substitute a more favourable decision for that of the Tribunal. The Assistant Minister refused that application on 14 January 2014.

3. On 17 March 2015, the Federal Circuit Court of Australia (Whelan J) dismissed the applicants’ application for review of the decision of the Assistant Minister, on the basis that the Court lacked jurisdiction to review such a decision. Pursuant to s 477(2) of the Act, the Court also dismissed the applicants’ application for an extension of time in which to apply for judicial review of the decision of the Tribunal.

4. On 20 August 2015, the Federal Court of Australia (Pagone J) dismissed the applicants’ appeal. Pagone J held that the Federal Court did not have jurisdiction to hear an appeal from a judgment of the Federal Circuit Court refusing to make an order under s 477(2) of the Act, and therefore, to that extent, the appeal had to be dismissed as incompetent. His Honour further held that no error was shown in the conclusion of the Federal Circuit Court that it lacked jurisdiction to review the decision made by the Assistant Minister. In any event, there was no basis to conclude that either the decision of the Assistant Minister, or that of the Tribunal, was erroneous.

5. The applicants seek special leave to appeal to this Court.  The applicants' draft notice of appeal and written case do not identify any error in the decisions of the Courts below and there is no reason to doubt those decisions.  An appeal to this Court would enjoy no prospects of success.  Special leave is refused.

6. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
10 December 2015
P.A. Keane