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

1. The title of the First Respondent be amended to read 'Minister for Immigration and Border Protection'.

2. The application be dismissed.

3. 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)

1. 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.

2. 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.

3. 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)).

4. 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.

5. 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 visa because the applicant did not submit evidence that he had undertaken the required English language test within that period.

6. The Applicant sought review by the Tribunal.  On 10 April 2013 the Tribunal invited the applicant to attend a hearing on 3 May 2013.  The letter was addressed to the correct address provided by the Applicant.  A tracking record from Australia Post indicates that it was delivered on 12 April 2013.

7. In its reasons for decision the Tribunal recorded that the Applicant did not attend the hearing and that no response was received to the hearing invitation. In those circumstances the Tribunal proceeded to make a decision pursuant to s.362B of the Migration Act 1958 (Cth) (‘the Act’) without taking any further action to enable the Applicant to appear before it.

8. The Tribunal found that the Applicant did not attend the hearing and did not provide evidence to show he had competent English as provided for in cl.485.215 of Schedule 2 to the Migration Regulations. It referred to the fact that the IELTS test of 8 March 2008 was not conducted in the two years immediately preceding the application of 31 January 2012 and found that there was no evidence that the Applicant had undertaken a language test within reg.1.15C in the two years immediately before the day on which his application was made. The Tribunal found that the requirements of cl.485.215 were not met.

9. Having regard to the visa application, subclass 485 was said to be the only relevant subclass in this case.  The Tribunal affirmed the decision not to grant the visa. 

10. The Applicant sought review by application filed in this court on 27 May 2013.  He filed a supporting affidavit in which he set out his circumstances, a copy of the 2008 IELTS test results and also the results for an IELTS test conducted on 18 April 2013, which was after the time of his application for the visa and does not assist him in these proceedings.

11. There are six grounds in the application for review.  The first is that “the Tribunal denied the Applicant procedural fairness in denying him a proper opportunity to attend the hearing to present his case”. There is no substance in this ground. The Applicant was invited to attend the hearing as required by s.360 of the Act. There is no indication that any of the formal requirements of the invitation were not met. Nor did the Applicant assert that he did not receive the hearing invitation.

12. Insofar as the Applicant claimed in his affidavit that he did not attend because he was suffering from depression and that he would “arrange a psychological report”, there is no corroborative evidence before the court.  As noted by the First Respondent in submissions, the only question at the hearing would, in any event, have been whether the Applicant had evidence of having undertaken and achieved the necessary result in a language test as required by the criterion referred to above.  Ground 1 is not made out.

13. Ground 2 is that “the Tribunal denied the Applicant procedural fairness in not allowing him the opportunity to properly consider his legal position”.  This ground is unclear.  The Applicant was given the requisite opportunity, insofar as he was provided with the delegate’s reasons.  He sought review by the Tribunal.  He was invited to attend a hearing.  He did not avail himself of that opportunity.  There is no obligation on the Tribunal to put its provisional reasoning to an Applicant, beyond the obligation to invite him to a hearing at which dispositive issues would have been raised had the Applicant taken the opportunity to attend.  Ground 2 is not made out.

14. Ground 3 is that “the Tribunal failed to determine the Applicant’s application for review according to law, in taking a view of the Migration Act and Regulations that was unnecessarily limited and constricted and which fitted the Tribunal member’s personal views rather than a comprehensive view of the relevant law”.  Contrary to what appears to be asserted in ground 3 the Tribunal did not interpret the relevant statutory provisions in a manner that in any way demonstrated a jurisdictional error or was not according to law.  Regulation 1.15C as it stood at the relevant time was clear.  It required the Minister to be satisfied that an English language test had been undertaken in the two years immediately before the day on which the visa application was made.  The Tribunal was bound to apply such provision.  Ground 3 is not made out.

15. Ground 4 is that “the Tribunal failed to determine the Applicant’s application for review according to law by failing to take into consideration the Applicant’s personal circumstances”. It was not open to the Tribunal to take into consideration the Applicant’s personal circumstances. It had no power to waive the applicable criterion in the then cl.485.215 of Schedule 2 to the Migration Regulations. Ground 4 is not made out.

16. Ground 5 is that the Tribunal “fail[ed] to properly consider whether the Applicant was entitled to the subclass of visa for which he applied under provisions of the Migration Act and Regulations to which the Tribunal member did not advert”.  The Applicant applied for a Subclass 485 visa which is within Class VC.  There is nothing in the material before the Court to support any contention that he sought to rely on any of the applicable criteria in relation to Subclass 487.  It was not necessary for the Tribunal to address all of the applicable criteria for Subclass 485 in circumstances where the Applicant did not meet one of the applicable criteria.  The fact that the Tribunal limited its consideration to the English language criterion or, indeed, to an express consideration of Subclass 485, is not such as to be demonstrative of jurisdictional error.  The Tribunal understood and acknowledged that there were two subclasses of visas in Class VC but indicated, as was open to it on the material before it, that the only relevant subclass was Subclass 485. Ground 5 is not made out.

17. Ground 6 is that “the Applicant is in fact entitled to a Skilled (Provisional) (Class VC) visa”.   This does not identify any jurisdictional error.  It is not for this court to grant visas, but only to remit matters for reconsideration by the Tribunal if a jurisdictional error is identified.  Moreover, in light of the absence of any evidence that the Applicant undertook and achieved the necessary result in an English language test in the two years before the day on which his visa application was made, there is no factual basis for this assertion.  Ground 6 is not made out.

18. As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application should be dismissed with costs.  The amount sought by the First Respondent is appropriate and reasonable in light of the nature of this and other similar matters.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  6 November 2013