Nayyar v Minister for Immigration and Border Protection

[2015] HCATrans 128

[2015] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M27 of 2015

B e t w e e n -

RAHUL NAYYAR

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

Application for order to show cause

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 21 MAY 2015, AT 9.46 AM

Copyright in the High Court of Australia

MR R. NAYYAR appeared in person.

MR R. KNOWLES:   If it pleases the Court, I appear for the first defendant.  (instructed by Clayton Utz Lawyers)

HIS HONOUR:   Mr Nayyar, I have read your application and your affidavit.  Is there anything that you wish to add orally to what you have put in the documents?

MR NAYYAR:   Not really, sir, but I want to say something to Court.

HIS HONOUR:   Yes.

MR NAYYAR:   It is, as I said ‑ ‑ ‑

HIS HONOUR:   Can you come to the middle, so that they pick your voice up, please?

MR NAYYAR:   Actually, when I came to this country in 2009 and I joined my college and that time I met with a guy named Jitendra who said he is an immigration lawyer and he charged me money and say like you have to complete your school fees and everything.  Then I will – immigration – I file your – I lodge your file in immigration for the work permit visa which I believe him.  I said okay, he is a lawyer.  I trust him.  I applied for that, whatever he said. 

The day when they got the result from the immigration it says like you got a – your visa is cancelled due to these things.  Okay.  Then I go to other lawyer, named Jayapal Reddy, which is my MRT lawyer.  He told me like, okay, I will do whatever I can do and I told him everything and then on the day of court he said you do not have to go.  I will go and do the hearing for you.  Is that okay?  Then again the result come in front of me was like a rejection of visa.

Two times lawyers cheated with me and then I go to Federal Circuit Court, Federal Court but I cannot get, according to me I did not get justice but yes.  Then I come to High Court and wanted justice for myself, like I just trust a person.  My fault was I trust a person and that person she did me – and if it is – my calling to…..immigration lawyers so I went to him and I did what – I showed him whatever he said and he charged me money as well and everything and then at the end of the day he got me the refusal.

HIS HONOUR:   What was the name of the first lawyer?

MR NAYYAR:   Jitendra, S.S. Migration.

HIS HONOUR:   Can you spell this name, please?

MR NAYYAR:   J-I-T-E-N-D-R-A.

HIS HONOUR:   What was the name of the firm?

MR NAYYAR:   S.S. Migration.

HIS HONOUR:   Spell that, please.

MR NAYYAR:   S.S. Migration.

HIS HONOUR:   Thank you.  What was the name of the second lawyer?

MR NAYYAR:   It is Owlet Immigration – Migration, sorry, not Immigration, migration lawyer.  Name is Jaipal.  I cannot pronounce the last name, it is a little – but it is in my MRT file.

HIS HONOUR:   Mr Nayyar, your application for visa was refused because you did not comply with the English test requirement.

MR NAYYAR:   Sir, they said like you do not have to because, according to me, they applied for my work permit visa.  That is what the first lawyer told me and no one told me after that you have to give immigration and you have to give these requirements.  I was not – no one informed me about these things – the lawyers did not inform me about these things.

HIS HONOUR:   You have not passed the IELTS test ‑ ‑ ‑

MR NAYYAR:   I did when I came to this country because we have to do it at that time.  I passed that time but after coming to this country I did not give because no one told me like you have to give this for the work permit or it is a requirement.

HIS HONOUR:   So you have not passed until two years before making application for this visa.  Was that the problem?

MR NAYYAR:   If you can give me chance I can give now – my English is okay.  Now I can pass the written test.  I know I can do the test.  It is not like – it is not a rocket science.  I can do the English test.  I just need some time to practice and I can give the test as well.  It is a matter of trust.  They cheated me and they did not tell me what – both lawyers did not tell me you have to give the IELTS exams.

HIS HONOUR:   You must have realised by the time you went to the Federal Circuit Court you had been cheated, did you?

MR NAYYAR:   The time I know – like when the respected sir told me that this is not and that time he told me there is nothing like that and you have to give me this – it was you did not clear this and that time – yes, they told me this thing.

HIS HONOUR:   So you are telling me you passed the IELTS test when you first came here to Australia?

MR NAYYAR:   Yes, when I come first I clear the test.

HIS HONOUR:   That was submitted to the Migration Tribunal?

MR NAYYAR:   Immigration, yes, before we apply for the Australian visa we have to give that one as well.

HIS HONOUR:   When you applied for the current visa which you are now seeking, the only reason you did not sit the test again is because you did not understand that you needed to?

MR NAYYAR:   Because they did not tell me like I have to give this thing again.

HIS HONOUR:   How often do they have IELTS tests?  How long does it take to sit one?

MR NAYYAR:   It depend like when I can get the clear time and you need a month’s time to prepare that thing.

HIS HONOUR:   You can sit it within a month, can you?

MR NAYYAR:   Like it take more than a month, because first I have to book that date with IELTS and I just need a month time to prepare the test again because I did it four, five years ago.

HIS HONOUR:   Thank you, you can have a seat.  Mr Knowles, is this right – that he had an IELTS pass?

MR KNOWLES:   I do not have instructions about that, save to say that he has indicated previously that he certainly sat IELTS tests but has never achieved sixes for all four components of the test.

HIS HONOUR:   Yes, I see.

MR KNOWLES:   So much was indicated in the materials filed most recently in the Federal Court.  I am not sure whether your Honour has a copy of the reasons for judgment of Justice Gordon to hand.

HIS HONOUR:   Yes, I do, thank you.

MR KNOWLES:   If your Honour goes to paragraph 7 in the reasons for judgment, your Honour will see there the statement that was made by the, there appellant, to the Migration Review Tribunal which was then set out at length in the reasons for judgment of Justice Gordon.  At the end of the first large paragraph, your Honour will see that it was conceded by the there appellant, now plaintiff, that many times he had tried to get the relevant IELTS score “but every time I get 5.5 in one component”.  So, even on his own case, he had not been able to get the required scores of six in all four categories. 

To the extent that it is now said that there might have been some test sat where there was a score achieved at that level – and it is not clear whether that is actually what is put to your Honour – but, if that is what is put, what does seem to be also suggested is that any such test was undertaken more than two years prior to the visa application being made, but I think the reference was to four or five years ago.

Otherwise, your Honour – and that makes sense because that corresponds with what was set out in the visa application itself and the visa application is exhibited to the affidavit of Mr Hibbard sworn on 11 May this year as exhibit CH‑I and at page 10 of the visa application, which is page 14 of the overall affidavit, your Honour will see there that the question was asked in the relevant application form “Have you undertaken an English test within the last 24 months?” and the answer was no.

HIS HONOUR:   Yes.

MR KNOWLES:   I should add, just for the sake of completeness, that the bogus agent claims, or the claims relating to alleged conduct by agents which were somehow said to be fraudulent, that has been the subject of consideration by and factual findings by Justice Gordon in her Honour’s reasons for judgment at paragraphs 29 and following.  In particular, the matter that was raised by Mr Nayyar in respect of thinking that he was applying for a work permit and that an application was in fact made on his behalf, that was the subject of findings to the contrary by Justice Gordon at paragraph 31.

HIS HONOUR:   Yes, thank you.  Thank you, Mr Knowles.

MR KNOWLES:   Otherwise the Minister relies on the written submissions that have already been filed and served. 

HIS HONOUR:   This is an application for an order to show cause why certiorari should not go to quash the judgment and orders of Justice Gordon of 25 February 2015 dismissing the plaintiff’s appeal from the judgment and orders of the Federal Circuit Court of 6 October 2014, in turn dismissing an application for judicial review of the determination of the Migration Review Tribunal of 24 September 2013 to affirm a decision of the delegate of the Minister not to grant the plaintiff a Skilled (Provisional) (Class VC) Subclass 485 (Skilled‑Graduate) visa pursuant to section 65 of the Migration Act 1958 (Cth).

The visa was refused because the plaintiff failed to provide evidence that he had undertaken an International English Language Testing System (IELTS) test and failed to provide an Occupational English Test (OET) certificate and thus failed to meet the requirements of regulation 1.15C of the Migration Regulations 1994 (Cth).

Justice Gordon held that there was no identifiable appealable error in the orders made or approach adopted by the Federal Circuit Court. Her Honour’s reasons are published as [2015] FCA 119 and, therefore, I shall not repeat them.

The plaintiff’s grounds of application are: 

“1.     If the Court determines that vitiating error has been demonstrated, then the plaintiff is entitled to the declaratory relief from court costs and get 485 visa grant or recommend my case honourable Minister;

2.Delegate behalf of the Minister has misused section 65 of the Act without giving appellant to comment on his exceptional circumstance beyond his control of unsatisfactory progress previously in Australia during his studies;

3.Nor is mandamus available to compel the exercise of those powers.”

So far as may be gleaned from the plaintiff’s affidavit in support of the application, the nub of his complaint is that Justice Gordon approached the matter on the basis that regulation 1.15C required the applicant to satisfy the “competent English” requirement for a Skilled Graduate visa as at the date of the application, whereas it was sufficient for him to satisfy the requirement as at the date of the hearing of the application. 

The plaintiff’s complaint is misplaced.  Justice Gordon expressly approached the matter on the basis that the competent English requirement could be satisfied as at the date of the hearing and, indeed, her Honour expressly referred to the decision of this Court in Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251; [2010] HCA 8, especially at paragraph 25.

Further, as her Honour also observed, although there were a number of legislative instruments made by the Minister under regulation 1.15C between 2009 and 2012, and the Tribunal referred to the wrong one, it was an error without any consequence.  So far as relevant the requirements under each of those legislative instruments were the same.  Thus, as her Honour concluded:

“despite the FCC’s reliance upon the wrong legislative instrument, the orders are not the result of some legal factual discretionary error on the part of the FCC that would provide any basis for this Court to interfere with those orders.  The substance of the law that was applied was correct.”

This morning the plaintiff has appeared and submitted orally that his predicament has been brought about by the fraudulent actions of two migration lawyers upon whom he relied, that he passed an IELTS test when he first arrived in this country approximately five years ago, and that if he were given time he could pass an IELTS test to the appropriate standard and thus qualify for the grant of the visa which he seeks. 

Each of those matters was canvassed in the detailed reasons for judgment of Justice Gordon and no error has been shown in her Honour’s reasoning or conclusion in that respect. 

I see no reason to doubt the correctness of Justice Gordon’s reasons for judgment or her Honour’s conclusion. Nor do I see any reason to doubt that it was open to the Tribunal to come to the conclusion which it did for the reasons which it gave. It is not disputed that the plaintiff failed to provide evidence that he had undertaken an International English Language Testing (IELTS) test and failed to provide an Occupational English Test (OET) certificate completed within the relevant period of time and to the appropriate standard and thus that he failed to meet the requirements of regulation 1.15C of the Migration Regulations 1994 (Cth). Accordingly, the application is dismissed.

Do you seek an order for costs, Mr Knowles?

MR KNOWLES:   Yes, the Minister does seek the usual order in that regard.

HIS HONOUR:   The application is dismissed with costs.  Thank you, Mr Nayyar.

AT 10.02 AM THE MATTER WAS CONCLUDED