PAVULURI v Minister for Immigration
[2014] FCCA 301
•6 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PAVULURI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 301 |
| Catchwords: MIGRATION – Judicial review of decision of the Migration Review Tribunal – failure of applicant to comply with regulations – inability to substitute another occupation because of a change of mind – independent basis for decision – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.351, Division 5 Part 5 Migration Regulations 1994, cl.485 |
| Chen Xin He v the Minister of Immigration and Ethnic Affairs [1995] FCA 1682 KC v Minister for Immigration & Anor [2013] FCCA 296 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, Patel v Minister for Immigration and Citizenship (2011) 198 FCR 62 Shafiuzzaman v Minister for Immigration & Anor [2011] FMCA 874 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 |
| Applicants: | POORNANAND PAVULURI & DHULIPALLA ARCHANA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1696 of 2013 |
| Judgment of: | Judge Turner |
| Hearing date: | 6 February 2014 |
| Date of Last Submission: | 6 February 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 6 February 2014 |
REPRESENTATION
| The Applicants appeared In Person |
| Counsel for the Respondents: | Mr Hill |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application for judicial review filed 11 October 2013 is dismissed.
The applicants pay the first respondent’s costs of $5,800.00 for which they are both liable.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1696 of 2013
| POORNANAND PAVULURI & DHULIPALLA ARCHANA |
Applicants
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore & Revised)
This is an application for judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) to affirm the decision of the delegate to the Minister not to grant the first applicant a Skilled (Provisional) (Class VC) visa. The second applicant's case is dependent on the first applicant’s case, as a member of the family unit.
The grounds for seeking judicial review are set out in the application filed on 11 October 2013 as follows:
(1)S.477, Judicial review can be lodged within 35 days after tribunal review has been finalised
(2)I am not happy with tribunal decision, applying for judicial review for legitimate decision
(3)I do have exceptional circumstances beyond the application lodgement previously
Notwithstanding the order of Registrar Allaway on 4 December 2013 that the applicants file and serve written submissions 14 days before the final hearing, that has not been done. The applicants handed written submissions to the Court today, and the Court has considered those submissions; the Minister’s representative has had a chance to respond to them.
The submissions assert that the applicant’s thinking as to his nominated occupation was affected by a third party. That matter can have no impact in an application for judicial review. The submissions request that the Court re-open the Tribunal’s decision to allow new matters to be put. The Tribunal will conduct a new hearing if a writ of mandamus is issued.
The applicant asserts his ignorance and confusion as to the requirements for a visa. That issue has no impact in a judicial review.
The applicant states that he did not lie to the Tribunal. There is no finding that he has lied.
The applicant complains that he did not receive natural justice. The relevant requirements of natural justice are set out in Division 5, Part 5 of the Migration Act 1958 (the “Act”). There is no evidence of a denial of natural justice. The applicant submits that he should have been allowed to amend his application. The Tribunal referred directly to the distinction between a change of mind and a mistake (CB [39] – [41]), and applied the law correctly.
The Court refers to the decisions of Patel v Minister for Immigration and Citizenship (2011) 198 FCR 62, at [53] to [61], Shafiuzzaman v Minister for Immigration & Anor [2011] FMCA 874, at [70], [79], [82] and [84], and KC v Minister for Immigration & Anor [2013] FCCA 296, at [15] and [17].
The Court finds that there is nothing in the written submissions handed to Court today to influence the outcome of this judicial review.
Ground One
Section 477 provides that an application for review can be lodged within 35 days after the date of the migration decision. The application for judicial review was filed on 11 October 2013, and was therefore filed within 35 days. An extension of time is not necessary.
Ground 1 is nonsense and is dismissed. By “nonsense” the Court means it makes no sense at all. It has no basis.
Ground Two
Ground 2 is “that the applicants are not happy with the Tribunal’s decision”. That is not a proper ground for judicial review. Insofar as the ground amounts to an attack on the merits, that is not open to the applicants.
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
The Court refers to the following decisions:
·So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pp.558 to 559 and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69] per Tamberlin and R D Nicholson JJ.
·The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272.
In Chen Xin He v the Minister of Immigration and Ethnic Affairs [1995] FCA 1682 RD Nicholson J stated at [24]:
“It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible.”
It is clear that there cannot be a review of the merits. Ground two is dismissed.
Ground Three
Ground 3 alleges that the applicants “have exceptional circumstances beyond the application lodgement previously”. The Court finds that “exceptional circumstances” is not a relevant test under cl.485 of the Migration Regulations 1994 (the “Regulations”).
The first respondent filed and served a Contention of Facts and Law on 29 January 2014. The Court accepts those contentions as follows:
29. To succeed in these proceedings, the Applicant must establish that the Tribunal’s decision contains a jurisdictional error…
35.3.1 The finding of facts of the First Applicant’s skills as Finance Manager were not assessed as suitable follows the First Applicant’s own statement (CB 82.3).
35.3.2 The finding of fact that the First Applicant only applied for a skills assessment as a Market Researcher Analyst after the Department’s request for further information (that is, after he made an application for a visa) also follows the First Applicant’s statement (CB 82.5).
He applied for the assessment on 24 August 2011 and applied for the visa on 13 March 2010 (CB p.1).
36. Thus, the decision of the Tribunal is compelled by the requirements of the Migration Act and Migration Regulations (as construed authoritatively in Patel), and by the First Applicant’s own evidence.
In Patel (supra) at [38] to [52], it was held that the applications for a skills assessment had to be made at the time of the application.
37. The Tribunal made two further findings. First, the Tribunal found, as a matter of law, that ss 104-105 of the Migration Act did not permit visa applicants to change a nominated occupation merely because they had later had a change of mind (CB 216, [38]-[40]). This finding is supported by Patel at [53] to [61], Shaffiuzzaman at [79] to [82] and KC [5] and [17]. Second, the Tribunal found, as a matter of fact that the First Applicant had correctly recorded his intended nominated occupation as Finance Manager (CB 217, [41]). That finding of fact was clearly open to the Tribunal.
38. The Minister contends (and the Court finds) that there is no legal error in these further findings set out above. However, any legal error in this respect would not undermine the validity of the Tribunal’s decision in any event. As already explained, even if the First Applicant’s nominated occupation were taken to be ‘Market Research Analyst’ (contrary to these further findings), he did not comply with cl 485.214 of Sch 2 of the Migration Regulations (CB 217 at [42]).
The last paragraph above is an independent basis for the decision of the Tribunal.
The Court finds where there is an independent and unimpeachable basis for the decision, it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33].
The Court refers to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29]:
“The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal’s finding that their claims lacked the requisite Convention nexus. The appellants’ case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board[1], cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”[2]. In this regard, the references that were made in the course of argument to the “unbundling” of a Tribunal’s reasons into “impeachable” and “unimpeachable” parts were more likely to mislead than to assist. While there may well be cases in which a tribunal’s breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.”
[1] [1994] 1 SCR 202 at 228.
[2] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 109 [58].
As stated by Kirby J in SZBYR (supra) at [88]-[89]:
“In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s 424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case.
Grounds 1, 2 and 3 of the application for judicial review are dismissed. As a result, the applicant’s wife is not a “member of the family unit or a person who has satisfied the primary criteria”.
The Court, however, notes the comments in [45] of the Tribunal’s decision and refers to s.351 of the Act. The applicants may be able to apply to the Minister to substitute another decision for that of the Tribunal. The question whether to apply is one for the applicants.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Turner
Associate:
Date: 21 February 2014
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