Sara v Minister for Immigration and Border Protection & Anor [2015] HCATrans 319 (26 November 2015)

Last Updated: 1 December 2015

[2015] HCATrans 319

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M213 of 2015

B e t w e e n -

VINAY KUMAR SARA

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

FEDERAL COURT OF AUSTRALIA

Second Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 26 NOVEMBER 2015, AT 9.44 AM

Copyright in the High Court of Australia

MR T.C. SMYTH: If it please your Honour, I appear for the first defendant in this matter. (instructed by Australian Government Solicitor)

HIS HONOUR: Thank you, Mr Smyth.

MR SMYTH: Your Honour, my instructors have not had any recent contact with the applicant and he has not been seen in the precincts of the Court this morning. Perhaps he could be called.

HIS HONOUR: Would you call him outside please, Madam Registrar?

COURT OFFICER: No appearance, your Honour.

HIS HONOUR: Thank you, Madam Registrar. Mr Smyth, I have had papers, of course, the benefit of them. Is there some further submission that you would seek to make?

MR SMYTH: If your Honour has had the opportunity of reading my written submissions, I do not propose to add anything further, unless I can be of assistance.

HIS HONOUR: Thank you very much.

MR SMYTH: If it please the Court.

HIS HONOUR: This is an application for an order to show cause why certiorari should not go to quash orders of the Federal Court of Australia, constituted by his Honour Justice Pagone, made on 19 August 2015 and why mandamus should not go to the Minister for Immigration and Border Protection to compel the Minister “to reassess 485 visa subclass application of appellant or let applicant allow to get all the documents which would satisfy 485 visa criterion under Migration Act 1958”.

By the orders made on 19 August 2015, Pagone J dismissed an application by the plaintiff for an extension of time and leave to appeal from orders of the Federal Circuit Court of Australia (Judge McGuire) made on 25 March 2015. By the latter orders, Judge McGuire had dismissed an application by the plaintiff for judicial review of the determination of the Migration Review Tribunal made on 30 April 2014. The Tribunal’s determination was to affirm the decision of the Minister’s delegate not to grant the plaintiff a Skilled (Provisional) (Class VC) (Subclass 485) visa because the plaintiff had not provided evidence of English language proficiency pursuant to clause 485.215 of Schedule 2 to the Migration Regulations 1994 (Cth).

The grounds of this application are:

“1. If the Court determines that vitiating error has been demonstrated, then the plaintiff is entitled to declaratory relief from Court costs and get 485 visa grant or recommended my case honourable Minister.

2. The delegate behalf of the Minister has misused section 65 of the Act without giving appellant to comment on his exceptional circumstance beyond his control of his application made by bogus agent – SS Migration Services – on 16 March 2011.
   
3. Nor is mandamus available to compel the exercise of those powers.”
   

The plaintiff has not advanced an arguable basis for the relief which is sought. There is no reason to doubt the correctness of the reasoning or orders of the Federal Court or of the Federal Circuit Court, or of the reasoning or determination of the Tribunal. It is evident that, despite repeated adjournments and other indulgences, and despite being aware of the need to provide evidence of compliance with the English language proficiency requirement mandated by clause 485.215 of Schedule 2 to the regulations, the plaintiff has consistently failed to do so. Even now, he has not provided any evidence of compliance with that requirement.

The thrust of his affidavit in support of this application appears to be that if granted more time, he could satisfy the English language proficiency requirement and that the only reason he has not done so to date is because he was misled by his migration agent as to what was required. Apart from anything else, however, that version of events is directly contradicted by the several notifications which were sent to, and apparently received by, the applicant informing him of the need to adduce evidence of compliance.

In addition to that, the application for certiorari is misconceived inasmuch as no relief is sought against the Federal Circuit Court and there would be no basis to grant relief against the Federal Court because the applicant has not identified any jurisdictional error in the decisions of the Tribunal or the Federal Circuit Court.

The application for mandamus is well out of time and, in the absence of any reason to doubt the correctness of the delegate’s decision, there is no basis for an extension of time. The application for mandamus is put on the same basis and has already been held to fail and is, therefore, an abuse of process.

In the result, the application will be dismissed with costs.

MR SMYTH: If it please the Court.

HIS HONOUR: Adjourn sine die.

AT 9.49 AM THE MATTER WAS CONCLUDED