PULLATTIL v Minister for Immigration

[2014] FCCA 1227

FEDERAL CIRCUIT COURT OF AUSTRALIA

PULLATTIL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1227

Catchwords:
MIGRATION – Application for review of MRT decision – applicant admitted not having competent English – applicant failing to attend hearing before Court – no jurisdictional error shown – application dismissed.

Applicant: NOUSHAD PULLATTIL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 150 of 2013

Judgment of: Judge Burchardt

Hearing date: 3 April 2014

Date of Last Submission: 3 April 2014

Delivered at: Melbourne

Delivered on: 18 June 2014

REPRESENTATION

The Applicant:  No appearance

Counsel for the First Respondent: Mr J. Hutton

Solicitors for the Respondents:  Australian Government Solicitor

ORDERS

1. Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The Applicant’s Application filed 2 July 2013 be dismissed. 

3. The Applicant pay the First Respondent’s costs fixed at $5,385. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

PEG 150 of 2013

NOUSHAD PULLATTIL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Migration Review Tribunal dated 23 June 2013 by which the Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a Skilled (Provisional) (Class VC) visa. 

2. The grounds of the Application filed 2 July 2013 are as follows:-

   The Tribunal has not considered the other subclass on which the application is filed.  The Tribunal has failed to provide the applicant with any detail as to the legislation applicable in this case and there for has no provide the applicant for natural justice.  There by leading to jurisdictional mistake.

3. The Affidavit filed 3 July 2013 in support merely annexes a copy of the decision of the Tribunal.

4. The applicant has not filed any amended application or written submissions.  He did not attend the hearing which was arranged by video link to Perth where he indicated he now was. 

5. In these circumstances, the Court has only the first respondent’s Contentions of Fact and Law filed 18 March 2014 and the Court Book filed 29 January 2014 to go on.  What follows necessarily will substantially follow the written submissions of the first respondent.

6. The applicant applied for his visa on 15 January 2011 and on 20 July 2012 the delegate refused to grant it (CB 40-43).  The applicant pursued review before the Migration Review Tribunal and attended a hearing on 17 June 2013 (CB 55-58). 

7. As is not infrequently the case, the issue before the Tribunal was whether the applicant had competent English within the meaning of the applicable regulation at the relevant time. 

8. The first ground asserted by the applicant is that the Tribunal failed to consider whether he met the criteria for the grant of a subclass 487 visa.  As the written submissions of the first respondent correctly point out, the applicant’s visa application specified that he was applying for a skilled graduate subclass 485 visa and he paid the relevant fee for that subclass.  In his application for review to the Tribunal, the applicant indicated that he was seeking review of a decision to refuse a subclass 485 visa (CB 47).

9. The written submissions of the first respondent go on to assert (paragraph 19):-

   In those circumstances, there was not a valid application for a sub class 487 visa, and the Tribunal did not have jurisdiction to consider whether the applicant met the requirements for that visa.

10. The written submissions of the first respondent go on to deal with the applicant’s assertions as to natural justice and the provision of legislation to the applicant.  I note that the Tribunal invited the applicant to appear and that the invitation noted that the applicant had not presented any evidence that he met the English language proficiency requirement. 

11. The first respondent’s written submissions point out that the Tribunal did reject an application by the applicant for an adjournment, but submitted that this was not unreasonable.

12. The Tribunal’s decision is at CB 67-70.  The Tribunal set out the visa application itself and at paragraph 2, CB 68, noted:

    At the time the visa application was lodged, Skilled (Provisional) (Class VC) contained two subclasses:  485 (Skilled-Graduate) and 487 (Skilled-Regional Sponsored).  Having regard to the visa application, the relevant subclass in this case is Subclass 485.

13. The gravamen of the Tribunal’s decision is at paragraph 11, CB 69, as follows:

    At the hearing the applicant informed that the applicant does not have satisfactory scores of IELTS or OET to meet competent English requirement.  He informed that he did not sit the IELTS test on 8 June 2013.  He commented that he wishes to show that he has competent English by a satisfactory EILTS test score in a test that he will sit in the future and requested the Tribunal to adjourn the review for a period of time to provide this evidence.  The Tribunal declined this request on the basis that he had plenty of time to provide this evidence given that the visa application was made almost 2 ½ years ago and despite being given the opportunity to sit the IELTS test on 8 June 2013 he did not sit this test.

14. The Tribunal went on to say:

    On the basis of evidence before the Tribunal, it finds that the applicant does not satisfy r.1.15C(a).

    For reasons given above the Tribunal is not satisfied that the applicant has competent English as defined in r.1.15C.

    Therefore, the requirements of cl.485.215 are not met.  As this is the only relevant subclass in this case, the decision under review will be affirmed.

15. In my opinion, in the circumstances that the Tribunal confronted, the decision that the applicant was not entitled to the visa he sought was completely unchallengeable.  It is clear that the applicant did not have competent English and therefore did not satisfy the relevant visa criterion.  The Tribunal did not fall into jurisdictional error in making that finding.

16. Further, the Tribunal did not fail to consider a subclass 487 visa application because there was no such application before it.

17. Additionally, there is nothing in the materials that suggests that the applicant was not given a fair opportunity to present his case.  His application was, given his acknowledged (and in any event unarguable) lack of competent English, doomed to fail.  Further and in any event, the Tribunal did not fall into jurisdictional error by rejecting the adjournment application. It was clearly properly open to the Tribunal to do so.

18. It follows that the application to this Court cannot succeed and I will dismiss the application with costs.

19. I will further order that the name of the first respondent be amended to reflect his new title.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  18 June 2014