Rahul Nayyar v Minister for Immigration and Border Protection

[2015] HCASL 163

RAHUL NAYYAR

v

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR

[2015] HCASL 163
M109/2015

1. This is an application for leave to appeal from a decision of a single Justice of this Court dismissing an application for an order to show cause directed to the respondents. The applicant is a citizen of India. On 25 May 2012, a delegate of the first respondent rejected the applicant’s application for a Skilled (Provisional) (Class VC), Subclass 485 (Skilled – Graduate) visa on the basis that the applicant had not provided evidence, as required, of competent English.  That decision was affirmed by the Migration Review Tribunal ("the Tribunal") on 24 September 2013. 

2. On 6 October 2014, the Federal Circuit Court of Australia (Burchardt J) dismissed an application for judicial review of the Tribunal’s decision.  On 25 February 2015, the Federal Court of Australia (Gordon J) dismissed the applicant’s appeal.  Gordon J held that although the Tribunal had referred to an inapplicable legislative instrument, and the Federal Circuit Court fell into error by relying on that instrument, that error did not assist the applicant as the Tribunal nevertheless asked itself the correct question and the substance of the law applied by the Federal Circuit Court was correct.  Gordon J held that the applicant had not identified any appellable error in the decision of the Federal Circuit Court.  

3. On 21 May 2015, a single Justice of the High Court of Australia (Nettle J) dismissed the applicant’s application for an order to show cause why the decision of Gordon J should not be quashed.  His Honour found there was no reason to doubt the correctness of Gordon J’s reasoning or her conclusion, or that it was open to the Tribunal to come to the conclusion that it did.

4. The applicant seeks leave to appeal from the decision of Nettle J.  The applicant’s draft notice of appeal and summary of argument do not identify any error in the decision of Nettle J.  An appeal to the Full Court of this Court would enjoy no prospects of success.  Leave is refused.

5. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
15 October 2015 P.A. Keane