Vunyale v Minister for Immigration and Border Protection [2017] HCATrans 35 (16 February 2017)

Last Updated: 20 February 2017

[2017] HCATrans 035

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M158 of 2016

B e t w e e n -

ROHIT VUNYALE

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Defendant

Application for an order to show cause

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 16 FEBRUARY 2017, AT 10.39 AM

Copyright in the High Court of Australia

MR R. VUNYALE appeared in person.

MR G.A. HILL: Your Honour, I appear for the Minister. (instructed by Sparke Helmore)

HIS HONOUR: Mr Vunyale, I have had the opportunity to read the papers in the matter, read what you have said in support of your application. This is your opportunity to say anything further orally in support of it that you wish to.

MR VUNYALE: Your Honour, like, whatever I want to say I have written in the paper. I have given you everything in there and I would like to request you that if my case could be.....that would be great. That is it. I have given everything in there.

HIS HONOUR: Thank you. Mr Hill, is there anything further to say on behalf of the respondent?

MR HILL: No, your Honour.

HIS HONOUR: Thank you.

The plaintiff is an Indian citizen. He seeks an order to show cause why mandamus should not go to the Minister to reassess the plaintiff’s application for a Student (Temporary) (Class TU) visa – the 572 visa – to enable the plaintiff to complete his studies in Australia. He contends that the Minister’s delegate misused section 65 of the Migration Act 1958 (Cth) by making a decision to refuse the plaintiff a visa without first affording him an opportunity to put submissions concerning what he contends to be his exceptional circumstances.

The plaintiff made his application for the visa on 10 October 2013. The delegate refused it on 21 October 2014 on the basis that the plaintiff did not satisfy the requirements of clause 572.223(1)(a) of Schedule 2 to the Regulations. The delegate found that there were gaps in the plaintiff’s study program and that the plaintiff had not completed any course above diploma level. Rather than advancing to a higher level of study, the plaintiff had chosen a series of short, inexpensive diploma courses, indicating that he did not genuinely intend to stay in Australia only temporarily. As it appeared to the delegate, the plaintiff was not a genuine applicant for a 572 visa, but rather was abusing the “eligible high degree” program to maintain residence in Australia.

The plaintiff applied to the Migration Review Tribunal – now the Administrative Appeals Tribunal – to review the delegate’s decision. On 11 May 2015, the Tribunal affirmed the decision. It found the plaintiff’s plans with respect to the value of his present studies to future employment “to be limited, vague and lacking detail”, and it expressed “significant concern that the plaintiff had entered into the area of study simply to extend his time in Australia”. The Tribunal also noticed that the plaintiff had previously made an unsuccessful application for a 457 Temporary Work (Skilled) visa and that the plaintiff remained in the employ of the employer who had nominated the plaintiff for that visa. As the Tribunal concluded, that gave the plaintiff a reason to want to stay in this country.

The plaintiff applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision on grounds which were confined to dissatisfaction with the Tribunal’s findings of fact as to the courses which the plaintiff was undertaking. On 15 July 2016, Judge McNab rejected the application. As his Honour observed, rightly, the Federal Circuit Court had no jurisdiction to review the delegate’s decision and the plaintiff’s grounds for review amounted to an impermissible request for merits review of the Tribunal’s decision.

The plaintiff appealed to the Federal Court of Australia against Judge McNab’s judgment on the ground that the Federal Circuit Court “did not consider the fact that the Tribunal had considered irrelevant facts in deciding my case, for example, my lodgement of a 457 visa”. On 10 November 2016, his Honour Justice Markovic dismissed the appeal. As his Honour observed, the Tribunal was required by ministerial direction to take into account the plaintiff’s immigration history in making its review of the delegate’s decision. Consequently, the plaintiff’s application for a 457 visa was not an irrelevant consideration. His Honour concluded accordingly that he could find no error in Judge McNab’s reasons for judgment, let alone a jurisdictional error.

As already noticed, the plaintiff puts his application for judicial review on the ground that the Minister’s delegate misused section 65 of the Migration Act by making a decision to refuse the plaintiff a visa without first affording him an opportunity to put submissions concerning what he contends to be his exceptional circumstances. As such, the application is incompetent. The delegate’s decision has merged in the Tribunal’s decision and it is that decision which is determinative of the plaintiff’s immigration status.

Perhaps more to the point, however, even if the application were to be construed as alleging that the Tribunal erred in failing to afford the plaintiff procedural fairness, it would still be hopeless. It is clear from the Tribunal’s reasons that the Tribunal did put to the plaintiff the matters on which the Tribunal’s adverse findings were based and sought the plaintiff’s responses at a time when the plaintiff was represented by a migration agent at the hearing. It is equally apparent that the plaintiff did not contend before the Federal Circuit Court that there had been such a lack of procedural fairness as he now contends for. For the same reasons, it is apparent that there was no error in the Federal Circuit Court’s dismissal of the plaintiff’s application for judicial review, or in the Federal Court’s dismissal of the plaintiff’s appeal.

In addition to that, the plaintiff is very substantially out of time. Section 468A(1) of the Migration Act requires that an application to this Court be brought within 35 days of the date of the migration decision. The delegate’s decision was made in October 2014 and the Tribunal’s decision was made on 11 May 2015, and yet the application to show cause was not filed in this Court until 30 November 2016. Of course, in some cases it is appropriate to grant an extension of time even where there is very substantial delay, but there is no point in extending time where, as here, the extension would be futile.

For these reasons the application is dismissed with costs.

I will adjourn now.

AT 10.48 AM THE MATTER WAS CONCLUDED