Pavuluri v MIBP

Case [2014] FCA 502

FEDERAL COURT OF AUSTRALIA

Pavuluri v Minister for Immigration and Border Protection [2014] FCA 502

Citation: Pavuluri v Minister for Immigration and Border Protection [2014] FCA 502
Appeal from: Pavuluri v Minister for Immigration and Border Protection [2014] FCCA 301
Parties: POORNANAND PAVULURI and ARCHANA DHULIPALLA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number: VID 112 of 2014
Judge: MORTIMER J
Date of judgment: 16 May 2014
Catchwords: MIGRATION – Appeal from decision of Federal Circuit Court – application for Skilled Graduate (Class VC, Subclass 485) visas – visa applicant nominated occupation for which he did not meet the necessary education requirements – whether first appellant had a “change in circumstances” to enliven obligation to notify Department pursuant to s 104 of the Migration Act 1958 (Cth) – whether first appellant provided an “incorrect answer” in his application, to be corrected pursuant to s 105 – no reviewable error on part of Migration Review Tribunal – no procedural unfairness – appeal dismissed with costs.
Legislation:

Migration Act 1958 (Cth) ss 65, 99, 100, 101, 102, 103, 104, 105, 107, 109, 111, 113

Migration Regulations 1994 (Cth) Sch 2 cls 485.214, 485.221

Cases cited: Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58
Patelv Minister for Immigration and Citizenship (2011) 198 FCR 62; [2011] FCA 1220
Shafiuzzaman v Minister for Immigration and Citizenship [2011] FMCA 874
Date of hearing: 9 May 2014
Date of last submissions: 9 May 2014
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 56
Solicitor for the Appellants: The Appellants appeared in person

Solicitor for the First Respondent:

Solicitor for the Second Respondent:

Mr W Sharpe of Sparke Helmore Lawyers

The Second Respondent filed a submitting notice save as to costs

IN THE FEDERAL COURT OF AUSTRALIA

MELBOURNE DISTRICT REGISTRY

GENERAL DIVISION

VID 112 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

POORNANAND PAVULURI
First Appellant

ARCHANA DHULIPALLA
Second Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

16 MAY 2014

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

MELBOURNE DISTRICT REGISTRY

GENERAL DIVISION

VID 112 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

POORNANAND PAVULURI
First Appellant

ARCHANA DHULIPALLA
Second Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

MORTIMER J

DATE:

16 MAY 2014

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION AND SUMMARY

  1. The appellants are both Indian nationals. They arrived in Australia in October 2007, as holders of student visas and, in October 2009, were married in Australia.

  2. On 13 March 2010, the first appellant, Mr Pavuluri, applied for a Skilled Graduate (Class VC, Subclass…

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Details
AGLC
Pavuluri v MIBP [2014] FCA 502
Case
[2014] FCA 502
Decision Date

CaseChat Overview and Summary

The case of Pavuluri v MIBP involved an appeal against a decision of the Federal Circuit Court regarding the applicants' applications for Skilled Graduate (Class VC, Subclass 485) visas. The applicants, Pavuluri and his wife, sought to challenge the decision of the Migration Review Tribunal that their visa applications were invalid due to the first appellant's nominated occupation not meeting the necessary education requirements. The applicants argued that there had been a change in circumstances that required notification to the Department, and that the first appellant had provided an incorrect answer in his application that should be corrected. The key legal issues before the court were whether there was a "change in circumstances" under section 104 of the Migration Act 1958 (Cth) that required notification to the Department, and whether the first appellant's answer in his application was "incorrect" under section 105, warranting correction.

The court found that there was no reviewable error on the part of the Migration Review Tribunal, and that there was no procedural unfairness. The court held that the visa criteria required both a complying skills assessment application at the time of the visa application and a successful and compliant skills assessment at the time of decision, in respect of the same nominated skilled occupation. The court further found that the appellants' arguments were not supported by the statutory language, and that the Tribunal's interpretation of the relevant provisions was consistent with the scheme of the Act and Regulations. The court held that the appellants' nominated occupation on their visa application was "finance manager," and that the first appellant had not sought advice from a migration agent regarding the nomination of the occupation. The court rejected the appellants' contentions that the Tribunal should have concluded there was a mistake, which was corrected by the VETASSESS assessment for the occupation of "marketing research analyst," and that the authorities of Patel v Minister for Immigration and Citizenship and Shafiuzzaman v Minister for Immigration and Citizenship did not apply.

The appeal was dismissed, and the appellants were ordered to pay the first respondent's costs of the appeal. The court held that the Migration Review Tribunal's decision was correct, and that there was no basis for the appellants' arguments. The court found that the appellants' nominated occupation on their visa application was "finance manager," and that the first appellant had not sought advice from a migration agent regarding the nomination of the occupation. The court held that the visa criteria required both a complying skills assessment application at the time of the visa application and a successful and compliant skills assessment at the time of decision, in respect of the same nominated skilled occupation. The court rejected the appellants' contentions that the Tribunal should have concluded there was a mistake, which was corrected by the VETASSESS assessment for the occupation of "marketing research analyst," and that the authorities of Patel v Minister for Immigration and Citizenship and Shafiuzzaman v Minister for Immigration and Citizenship did not apply.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellants pay the first respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In other words, there must be a complying skills assessment application at the time of the visa application, and a successful and compliant skills assessment at the time of decision. The visa criteria read as a whole contemplate that they both will be in respect of the same nominated skilled occupation.THE APPELLANT’S VISA APPLICATION AND THE DECISION-MAKING PROCESS As I have already observed, the appellant’s nominated occupation on his visa application was “finance manager”. The appellant told both the Tribunal and the Court that he nominated that occupation because he had received advice from persons within the department in which he studied at Deakin University that this was the appropriate occupation to nominate for his degree. He indicated he may also have spoken to some of his friends or classmates about these issues. Whoever he spoke to, it is clear he did not seek out any advice from a migration agent. Putting to one side whether or not his account of the advice he received informally is correct, this account of why he nominated “finance manager” explains the sequence of events, but does not alter the facts as found by the Tribunal, nor their legal consequences. The first appellant’s application identified the relevant assessing authority as the “Institute of Chartered Accountants of Australia” (ICAA) and specified the date of the skills assessment application as “12 March 2010”. A receipt or reference number was also provided. The appellant explained he considered the receipt or reference number was sufficient. Since the criteria at the time of application in cl 485.214 refer only to the making of an application for a skills assessment, that may well be correct, although the delegate would no doubt be entitled to ask for a copy of the application in a particular case. However, cl 485.221 required that there be a successful and compliant skills assessment before a visa could be granted. Therefore, on 23 August 2011 (some 18 months after the lodgement of the visa application), the Department wrote to the first appellant, requesting amongst other documentation that the first appellant “provide [a] Skills Assessment for your nominated occupation”. A time frame of 28 days for a response by the first appellant was imposed. On 19 September 2011, the first appellant wrote to the Department as follows:I have been able to organize all documents within in days but bad news is could not find the assessment. I have searched every single place in my house but no use and requested the assessing authority to resend the assessment copy. Unfortunately they could not find my details and been advised to submit the new application to get assessment. I was in trouble; I did not know what to do. Immediately I have submitted the new application for assessment and kept searching for old assessment but I could not find it. So at last, I have decided to request for extension to submit the assessment. This is not request dear officer, I am imploring to give at least 28 days extension to submit the assessment if it is possible. I know that I should not ask the extension but I don’t have other way. I have got word from assessing authority that they would issue outcome in 45 days. Dear officer please consider my request and grant at least 28 days extension.

Ratio Decidendi

Legal Principle Established

As the Minister’s submissions also point out, the appellants repeat a complaint made to the Tribunal that the Department should have advised the first appellant of a form (Form 1022) he could have filled in giving notification of incorrect answers on his visa application.CONSIDERATION The appellants contend that the Tribunal should have concluded there was a mistake, which was corrected by the VETASSESS assessment for the occupation of “marketing research analyst”, and that the authorities of Patelv Minister for Immigration and Citizenship (2011) 198 FCR 62; [2011] FCA 1220 and Shafiuzzaman v Minister for Immigration and Citizenship [2011] FMCA 874 did not apply. I agree with the Minister’s submissions that these contentions must fail because of the scheme of the Act and the Regulations. This is also what the Tribunal found. The language of the visa criteria in cl 485.214 are not susceptible to any broader reading than that given by the Tribunal, subject perhaps to the qualification it expressed in its reasons that it may be able to examine other evidence or material to clarify or explain precisely which occupation an application intended to specify. However, this was not such a case: as the Tribunal found, there was no lack of clarity, or lack of intention, around the first appellant’s choice to specify “finance manager” on his visa application at the time he made the application. In Patel 198 FCR 62; [2011] FCA 1220 at [41]-[49], Robertson J set out his reasoning as to why cl 485.214 required that the application for a skills assessment had been made at the time of the visa application and not thereafter. His Honour said:In my view the application for an assessment was required to be made at the time of application for the following reasons.First, there is a difference in substance between the language considered in Berenguel and the present criterion. In Berenguel, the criterion was “the applicant has competent English” whereas here it is “has applied for an assessment”. The former expression goes to competence whereas the latter refers to a means for establishing or testing particular skills, that is, for the nominated skilled occupation.This consideration relates to the grammatical connection element referred to in Berenguel at [26] and it is also related to the purpose element referred to by the High Court. In the present case there is a grammatical connection between the criterion in cl 485.214 and the heading “Criteria to be satisfied at time of application”. Second, there is a contrasting relationship between cl 485.214 and cl 485.221, cl 485.221 referring to a time when the skills for the applicant’s nominated skilled occupation “have been assessed” by the relevant assessing authority. It seems to me that this contrast provides textual support for the construction that the application for assessment referred to in cl 485.214 is intended to be at the time of application for a visa. There was no equivalent provision corresponding to cl 885.213 in Berenguel. Further, cl 485.214 would be largely if not entirely otiose if it did not refer to an application for an assessment at the time of application for the visa. The appellant submitted that “the time of application” refers to a period rather than to a day, the period being while the application was being dealt with up to the date of decision. I reject this submission as having insufficient foundation in the statutory language. Third, it is necessary to read the provision in context. The relevant subclass requires that the applicant for such a visa must nominate a skilled occupation in the application. Then, by cl 485.213, the applicant is to meet the requirement that he or she has satisfied the two year study requirement in the period of six months “ending immediately before the day on which the application was made” and that each such degree, diploma or trade qualification is closely related to the applicant’s nominated skilled occupation ie the skilled occupation nominated in the visa application. In my view, applying for an assessment of the applicant’s skills for the nominated skilled occupation should be read as ancillary to the requirements of cl 485.213 and as a matter to be satisfied, in point of application to a relevant assessing authority, at the time of application for the visa.So viewed, the purpose of the provision made by cl 485.214 goes both to timeliness of the assessment of the applicant’s skills for the nominated skilled occupation and to the efficient consideration of the application with reference to whether the skills have been assessed by the relevant assessing authority as suitable for the nominated skilled occupation: see cl 485.221.Implicit in this conclusion is that, contrary to the appellant's submission, the words “the nominated skilled occupation” do refer to the skilled occupation nominated in the application for the visa.In my opinion the construction of cl 485.214 which I prefer does not give rise to the “plain unfairness and absurdity” referred to by the High Court in Berenguel with reference to the construction of cl 885.213 there contended for by the Minister.