Nandyala v Minister for Immigration

[2014] FCCA 729

FEDERAL CIRCUIT COURT OF AUSTRALIA

NANDYALA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 729

Catchwords:
MIGRATION – Review of Decision of RRT – where applicant concedes no error but requests adjournment to make another visa application.

Legislation:  

Migration Act 1958 (Cth), s.65
Migration Regulations 1994, r.1.15C, Cl.485.215

Berenguel v Minister for Immigration & Anor [2010] HCA 8

Applicant: KISHORE NANDYALA

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

MIGRATION REVIEW TRIBUNAL

File Number: SYG 699 of 2013

Judgment of: Judge Raphael

Hearing date: 2 April 2014

Date of Last Submission: 2 April 2014

Delivered at: Sydney

Delivered on: 2 April 2014

REPRESENTATION

For the Applicant: In Person

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $2,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 699 of 2013

KISHORE NANDYALA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me today for hearing an application filed on 5 April 2013 for review of a decision of the Migration Review Tribunal to refuse the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958. The grounds upon which that visa was refused were that the applicant did not satisfy Clause 485.215 in Part 485 of Schedule 2 of the Migration Regulations 1994[1]. This clause requires an applicant for the visa to have competent English as defined by Regulation 1.15C of the Regulations. Competent English requires the applicant to produce evidence that he had obtained a particular mark in an occupational English language test or an IELTS test.

   [1] “Regulations”

2. There have been changes in the way in which the Regulations provide for the time in which the test referred to above has to be taken. In paragraph 11 of the Tribunal’s decision it concludes that this particular applicant could take the test at any time from two years prior to the application to a date when the Tribunal was considering the matter in accordance with the views of the High Court in Berenguel v Minister for Immigration & Anor [2010] HCA 8. Following this decision the Regulations were amended so that they provided that the test must be taken two years before the application was submitted but whether the Tribunal was correct in law or not the fact is that Mr Nandyala did not have evidence that he had passed an IELTS test at any time prior to the Tribunal’s decision. The Tribunal had given Mr Nandyala until mid March 2013 to provide the evidence, he having sat for an IELTS test in February. No such evidence was provided and the Tribunal came to the inevitable conclusion that he did not have competent English as defined in Regulation 1.15C and therefore did not satisfy Clause 485.215.

3. The applicant filed an application seeking review of that decision in this Court on 5 April 2013. By the time the matter came before the Court for directions on 7 November 2013 Mr Nandyala had taken another IELTS test and had passed, but as the Court explained to him, that would not avail in the proceeding currently before it. He came to the Court today and whilst conceding that there was no error in law in the Tribunal’s decision, requested that the Court adjourn the matter for six months so that, armed with his IELTS test, he could apply for a Skilled Nominated Visa (Subclass 190) through the New South Wales Trades and Investments Department. Those nominations are open for consideration in July 2014. Mr Nandyala produced to the Court the papers which he will be submitting to the New South Wales government.

4. As the Court explained to Mr Nandyala its duty is to decide the case that is before it and however sympathetic it might be to his plight that is the imperative which it must obey.  It is not appropriate for a Court to adjourn a hearing so that an applicant can make an application for another visa in respect of which he may or may not be successful.  The Court must consider the case in hand and that is what has been done today.  Mr Nandyala’s concession was well made.  There was no jurisdictional error in the manner in which the Tribunal reached its decision.  It was the only decision the Tribunal could reach in circumstances where no complying IELTS test was produced.  The application is dismissed.  The applicant must pay the first respondent’s costs which the court assesses is in the sum of $2,000.00. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  10 April 2014