Vatti v Minister for Immigration and Border Protection

[2015] HCATrans 31

[2015] HCATrans 031

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M88 of 2014

B e t w e e n -

PRADEEP KUMAR VATTI

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 17 FEBRUARY 2015, AT 9.31 AM

Copyright in the High Court of Australia

MR P.K. VATTI appeared in person.

MR W.A. SHARPE:   Your Honour, I appear for the defendant.  (instructed by Sparke Helmore Lawyers)

MS G. ADDAKULA, affirmed as interpreter.

HIS HONOUR:   Now, Mr Vatti, you have filed, or you have made, an application to this Court and this is the first time the application has been heard in this Court.  The Minister says that the application should fail.  The Minister says that you have no ground to dispute the decision.  What I will do this morning is hear from counsel for the Minister first and hear from him about why he says your case should fail, and after I have heard from counsel for the Minister it will be your turn, and it will be your turn to tell me about why you think you have a case that should be decided in your favour.  So I will ask you to sit down but you need to – with the help of the interpreter, you need to listen to what is said and think about what you are then going to say to me.  Now, do you understand that, and do you have any questions at the moment about what I am going to do?

MR VATTI:   No.

HIS HONOUR:   Sit down, thank you, Mr Vatti.

THE INTERPRETER:   Thank you, your Honour.

HIS HONOUR:   Yes, Mr Sharpe.

MR SHARPE: Your Honour, this is an application to show cause, pursuant to rule 25.03 of the High Court Rules. The application seeks an order of mandamus. In order to proceed, however, the plaintiff requires an extension of time. Your Honour, the only defendant in this proceeding is the Minister for Immigration and Border Protection. The application is beyond the time limit allowed by section 486A of the Migration Act and also the time limits allowed by the High Court Rules.  Effectively, the reason for that is ‑ ‑ ‑

HIS HONOUR:   Just slow down, Mr Sharpe, so that the interpreter can keep up a little better.  She has the most difficult job in this courtroom.

MR SHARPE:   Sorry, your Honour.

THE INTERPRETER:   Thank you, your Honour.

HIS HONOUR:   Yes, go on.

MR SHARPE:   Effectively, the reason for the lateness of the application, your Honour, appears to be that the applicant chose the course of applying firstly to the Tribunal, the Migration Review Tribunal, and then the Federal Circuit Court and to seek review by both of those bodies prior to coming to the Federal Court seeking an application for leave to appeal from the Federal Circuit Court.  It was only upon ‑ ‑ ‑

HIS HONOUR:   Well, just slow down, the interpreter has got to catch up with you.  Yes.

MR SHARPE:   Your Honour, it was only upon failure to obtain leave from the Federal Court to appeal from a decision of the Federal Circuit Court dismissing the application for judicial review that the applicant has come to this Court to seek relief.

HIS HONOUR:   Now, understanding the importance of what you say about time, what about the merits of the case?

MR SHARPE:   Your Honour, if I can go first to the grounds relied upon by the applicant?  At paragraph 10 we set out what we understand the grounds – or what we can only discern to be the grounds ‑ ‑ ‑

HIS HONOUR:   Well, can I come at it from a different angle?  The visa for which the applicant applied was a student visa.  Is that right?

MR SHARPE:   That is right, your Honour.

HIS HONOUR:   That was a visa that required a particular degree of proficiency in the English language?

MR SHARPE:   That is right, your Honour.

HIS HONOUR:   So far as the evidence goes, does it show whether the plaintiff has ever met the English language proficiency requirement?

MR SHARPE:   The evidence provided both to the delegate and also to the Tribunal, your Honour, failed to meet the scores required by clauses 572.223 and clause 5A404 of the Migration Regulations.

HIS HONOUR:   Yes.

MR SHARPE:   When the matter went to the Tribunal, the Tribunal was concerned both with the absence of evidence that the applicant met the requirements for the English language proficiency, but also that there were significant study gaps in his history of education.

HIS HONOUR:   Yes.

MR SHARPE:   Your Honour, there was an application for an adjournment.  The Tribunal considered that application for an adjournment but refused it on the basis that it considered the applicant had sufficient time to provide that evidence and had failed to do so.

HIS HONOUR:   Yes.

MR SHARPE:   And for the additional reason that even if that evidence was available it would not satisfy its concerns concerning the gaps in the study.

HIS HONOUR:   Yes, thank you, Mr Sharpe.  Now, Mr Vatti, the Minister makes two points.  He says your application is outside time limits, and he says that your case must fail.  Now is your chance to tell me why the Minister is wrong.

MR VATTI (through interpreter):   I did not know, your Honour, I had to apply within 14 days, but I thought it was 28 days, and I delayed by one day my application, your Honour.  When I went to Federal Circuit Court they have mentioned that that is not a problem because it is only one day, your Honour.  At the time they did not discuss about failing my test for that reason, your Honour.  I would not agree with the counsel of the Minister for this reason, your Honour, that at the lowest court they have mentioned, you know, it is not a problem just by one day so I do not agree with them with this one, your Honour.

HIS HONOUR:   The time the Minister says you have missed is the time between the delegate’s decision and starting proceedings in this Court.

MR VATTI (through interpreter):   I was in time, your Honour, to apply for this Court.

HIS HONOUR:   Yes.

MR VATTI (through interpreter):   That is what the Minister’s counsel is saying about it, is it not, your Honour?

HIS HONOUR:   What the Minister says is you have gone to the Federal Circuit Court.  We assume that that is in time.  You then went to the Federal

Court where you needed an extension of time, which you were given.  But the application you make in this Court is a fresh application, not an appeal from the Federal Court.

MR VATTI (through interpreter):   I did not get a fair verbal decision, your Honour, that is why I have applied here, thinking that I may get a good result here, your Honour.

HIS HONOUR:   Now, is there anything more you want to say about the time issue before we come to what the Minister says is the difficulty, that your English tests have not been satisfactory?

MR VATTI (through interpreter):   Your Honour, I have got nothing more to say about the time limit, but after that I have completed my Diploma of Business, your Honour, and I have that evidence.

HIS HONOUR:   Yes, is there anything else that needs to be said?

THE INTERPRETER:   Excuse me, your Honour, I am going to ask him to repeat again because there were a few sentences that needed to be ‑ ‑ ‑

HIS HONOUR:   Yes, of course.

MR VATTI (through interpreter):   Plus they have requested for IELTS test results and after that I got some time, your Honour.  So the time for the marks that I got in IELTS I was given a chance to study a diploma and I have completed that one, your Honour.  That is the reason, your Honour, I am requesting to give one more chance to study further, so I can improve my English skills and I can show the evidence and I would like to go further to study whatever I would like to do, your Honour.

HIS HONOUR:   Yes.  Is there anything else you want to say to me?

MR VATTI:   That is fine, that is what I am asking.

HIS HONOUR:   Yes.  Yes, very well.  Thank you very much.  Do sit down.

THE INTERPRETER:   Thank you.

HIS HONOUR:   On 23 September 2011, the plaintiff, Mr Vatti, applied for a Student (Class TU) visa.  On 7 November 2011, a delegate of the Minister refused the application.  In the reasons for decision the Minister’s delegate referred to a number of matters, including the proficiency which the plaintiff then had in the English language.  The Minister’s delegate referred also to there having been a gap in the plaintiff’s study of more than 63 weeks. 

The plaintiff sought review of the delegate’s decision by the Migration Review Tribunal.  On 30 August 2013, that Tribunal gave oral reasons for affirming the decision not to grant the plaintiff the visa he sought.  Subsequently, on 5 September 2013, the Tribunal published written reasons for decision.  Again, the Tribunal concluded that the plaintiff lacked the required degree of proficiency in the English language.

The plaintiff sought judicial review of the decision of the Tribunal in the Federal Circuit Court of Australia.  On 28 April 2014, Judge Hartnett dismissed the plaintiff’s application as being unarguably bad.  The plaintiff sought to appeal to the Federal Court of Australia against the decision of the Federal Circuit Court.  On 21 August 2014, Justice Mortimer of the Federal Court extended the time within which the plaintiff could seek leave to appeal, but her Honour refused leave to appeal on the ground that an appeal would have no reasonable prospect of success.

On 9 September 2014, the plaintiff commenced proceedings in the original jurisdiction of this Court. By that application the plaintiff sought relief against the Minister. In its form the proceeding is one which challenges only the original decision of the delegate of the Minister to refuse the plaintiff the visa he sought. So understood, the application is well out of time. It is brought outside the time fixed by section 486A of the Migration Act 1958 (Cth). It is brought outside the time fixed by the Rules of Court.

Given that the plaintiff has not had legal representation, it is appropriate to look rather more widely at the application than might otherwise be the case, even assuming that the application could be treated as enlarged beyond its present form in some relevant way.

THE INTERPRETER:   Sorry, your Honour, would you be able to repeat that?

HIS HONOUR:   Assuming that the application could be enlarged beyond its present form to make complaints about not only the decisions of the Minister and the Tribunal, but also the decisions of the courts below, it does not appear to me that the plaintiff would have any arguable case.

I have read carefully the decisions in the courts below and the decision of the Tribunal and Minister’s delegate.  I am unable to identify any error at any stage of the consideration of the plaintiff’s application.  That being so, it follows that the plaintiff’s case must fail in this Court.  For the reasons which I have given, the application is dismissed.

MR SHARPE:   If the Court pleases, your Honour, we seek an order for costs.

HIS HONOUR:   Yes.  There is, I think, nothing that can be said against the application for costs.  The proceeding stands dismissed with costs.  Thank you very much, Mr Vatti.  Thank you for your attendance too, Ms Addakula.  I am grateful to you.

THE INTERPRETER:   Thank you, your Honour.

HIS HONOUR:   Thank you very much.

AT 9.57 AM THE MATTER WAS CONCLUDED