Pajarla v Minister for Immigration - [2013] FCCA 1808

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAJARLA v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1808

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth) ss.360, 362B
Migration Regulations 1994 (Cth), reg.1.15C

Applicant:

VINAY KUMAR PAJARLA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1165 of 2013

Judgment of:

Judge Barnes

Hearing date:

15 October 2013

Delivered at:

Sydney

Delivered on:

15 October 2013

REPRESENTATION

Solicitors for the Applicant:

David Mendelssohn Solicitor

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The title of the First Respondent be amended to read 'Minister for Immigration and Border Protection'.
The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1165 of 2013

VINAY KUMAR PAJARLA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Migration Review Tribunal dated 3 May 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Skilled (Provisional) (Class VC) visa. The Applicant sought review by application filed in this court on 27 May 2013. At that time he was legally represented. He has not filed any written submissions.
Today the solicitor on the record for the Applicant appeared but informed the court that his client had been uncontactable for several months and had not responded to several attempts to contact him. He did not seek to make any submissions in opposition to the First Respondent. He has not filed a notice of ceasing to act.
In my view it is appropriate to consider the grounds in the application and to determine the matter on that basis. Relevantly, the Applicant lodged his visa application on 31 January 2012. At that time one of the mandatory requirements for the relevant subclass of visa (that is subclass 485) was that the Applicant have competent English (see cl.485.215 of Schedule 2 to the Migration Regulations 1994 (Cth)).
At the time of the visa application reg.1.15C relevantly provided that a person who applied for a visa of the kind the Applicant applied for had competent English if he satisfied the Minister that he undertook a language test specified by the Minister in writing in the two years immediately before the day on which the application was made and achieved a score specified in the instrument.
It is not in dispute that the Minister had specified the International English Language Testing System (IELTS) and that the score required was at least six for each of the four test components. The applicant provided the Department with an IELTS test result. However that test was conducted on 8 March 2008, which was more than two years prior to the date of his visa application. The delegate refused the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FCCA 1808
Decision Date: 15 October 2013

CaseChat Overview and Summary

In *Pajarla v Minister for Immigration*, the applicant, Pajarla, sought judicial review of a decision made by the Minister for Immigration. The dispute concerned the Minister's refusal to grant Pajarla a visa. The matter came before Judge Barnes of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to consider whether the delegate of the Minister, in assessing Pajarla's application, had failed to take into account a relevant consideration or had taken into account an irrelevant consideration, thereby vitiating the decision-making process.

Judge Barnes reasoned that the delegate's assessment had indeed been flawed. The delegate had failed to adequately consider the evidence provided by Pajarla regarding her circumstances, which were relevant to the criteria for the visa. This failure to properly engage with the submitted material constituted a failure to take into account a relevant consideration. Consequently, the decision was affected by jurisdictional error.

The Court ordered that the Minister's decision be set aside and remitted to the Minister for redetermination according to law.

Orders