Savsani & Anor v. Minister for Immigration and Border Protection & Anor [2014] HCATrans 217 (1 October 2014)

Last Updated: 1 October 2014

[2014] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S127 of 2014

B e t w e e n -

ANKURKUMAR NARANBHAI SAVSANI

First Applicant

NIRALI ANKURKUMAR SAVSANI

Second Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Summons for reinstatement

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 1 OCTOBER 2014, AT 10.15 AM

Copyright in the High Court of Australia

MR T. REILLY: I appear for the first respondent, your Honour. (instructed by DLA Piper Australia)

HER HONOUR: Yes, thank you, Mr Reilly. I think, Mr Reilly, there may be a question about whether Mr Savsani is going to attend personally. I rather infer that he will not but I will have the matter called.

MR REILLY: If the Court pleases.

COURT OFFICER: No appearance.

HER HONOUR: Yes. Mr Reilly, I have your written submissions. This is a summons for reinstatement. As I understand it, it is not suggested that there is any prejudice to the Minister were the matter to be reinstated, but you depend on a sort of futility of so doing.

MR REILLY: Yes, that is so, your Honour.

HER HONOUR: Yes. Mr Reilly, I do not need to hear from you further. I am assisted by your written submissions, for which I thank you.

This is a summons for reinstatement of the application for special leave to appeal filed by the applicants on 6 June 2014. The application was deemed abandoned on 4 July 2014 under the High Court Rules 2004 (Cth). The applicants are unrepresented. It appears that they are presently residing in Perth. They have not attended on the hearing of their summons. The second respondent has filed a submitting appearance. The first respondent, the Minister for Immigration and Border Protection, opposes the reinstatement of the special leave application.

The first applicant filed an affidavit in support of the relief claimed in the summons. He states that he is a “common man” and that his knowledge of the Court Rules was derived “as instructed by the staff/registrar of Perth Registry”. He states that he followed the instructions of the staff at the Registry “relying on their knowledge and instructions given to me specifically in regards to my above matter”. A statutory declaration made by the first applicant and filed on 25 September 2014 asserts that the first applicant submitted “all necessary documents” to the Perth Registry and thereafter received no communication from the Registry until receipt of a letter advising of the deemed abandonment. Neither account provides a satisfactory explanation for the first applicant’s failure to acquaint himself and comply with the Rules.

The delay in bringing the application has not been great. The Minister does not assert that reinstatement of the application would occasion any prejudice. The Minister’s opposition is based on his contention that the application has no prospect of success. The submission directs attention to the procedural history.

The first applicant applied for the grant of a Skilled (Provisional) (Class VC) (Subclass 485) visa on 12 March 2011. He included his wife, the second applicant, in his application as a member of his family unit. A delegate of the Minister refused the application on 29 March 2012 because the first applicant had not provided evidence of his competency in the English language as required under the Migration Regulations 1994 (Cth).

The first applicant applied to the Migration Review Tribunal for a review of the delegate’s decision. The Tribunal held a hearing on 8 November 2012. The Tribunal agreed to await the results of two International English Language Testing System (IELTS) tests which the first applicant had undertaken not long before the hearing. The results of those tests, including following re-marking, did not satisfy the requirements of the regulations. For this reason, the Tribunal affirmed the delegate’s decision.

The applicants applied for judicial review of the Tribunal’s determination to the Federal Circuit Court of Australia (Judge Emmett). The first applicant’s contention was that the Tribunal erred by refusing his application without considering whether to allow him further time to resit the IELTS examination. Judge Emmett found that the Tribunal had considered the first applicant’s request and that it had refused the request for reasons that were not unreasonable. Her Honour found that the Tribunal’s decision was not tainted by jurisdictional error.

The applicants appealed to the Federal Court of Australia. Justice Marshall found that Judge Emmett was right to conclude that the refusal of the request to allow further time to resit the examination was not attended by jurisdictional error and that no other claim of jurisdictional error was advanced on the applicant’s behalf. The appeal was dismissed.

The application for special leave to appeal articulates a single ground; an unparticularised assertion that Justice Marshall “applied a wrong principles of law and issue of a procedural fairness”. There is no reason to doubt the correctness of his Honour’s decision. No question of public importance is raised by the application. Were the application to be reinstated, there is no prospect that special leave to appeal would be granted. In these circumstances, I accept the Minister’s submission that there is no utility in making the orders sought. For these reasons I make the following order: summons dismissed with costs.

Thank you, Mr Reilly. The Court will now adjourn.

AT 10.23 AM THE MATTER WAS CONCLUDED