FEDERAL CIRCUIT COURT OF AUSTRALIA
SADANI & ANOR v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 1189	

Catchwords: 
MIGRATION – Review of Migration Review Tribunal decision – refusal of skilled provisional visas – English language ability requirement not satisfied – no jurisdictional error.	

Legislation:
Migration Act 1958 (Cth), 
Federal Circuit Court Rules 2001 (Cth)	

Akhter & Ors v Minister for Immigration [2015] FCCA 35
Ajaya v Minister for Immigration and Border Protection [2014] FCA 718	

First Applicant:	MITALBAHEN HARESHKUMAR SADANI	

Second Applicant:	HARESHKUMAR TULSHIBHAI SADANI	

First Respondent:	MINISTER FOR IMMIGRATION & BORDER PROTECTION	

Second Respondent:	MIGRATION REVIEW TRIBUNAL	

File Number:	ADG 237 of 2014	

Judgment of:	Judge Driver	

Hearing date:	5 May 2015	

Date of Last Submission:	5 May 2015	

Delivered at:	Adelaide	

Delivered on:	5 May 2015	

REPRESENTATION
The Applicant:	In Person	

Counsel for the Respondents:	Mr K Tredrea	

Solicitors for the Respondents:	Sparke Helmore Lawyers	

ORDERS
(1)	That the application filed 30 June 2014 be dismissed pursuant to r16.01 of the Federal Circuit Court Rules 2001 (Cth).
(2)	The Applicants do forthwith pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800.00).

(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Adelaide	
ADG 237 of 2014
Mitalbahen Hareshkumar Sadani	
First Applicant

Hareshkumar TULSHIBHAI Sadani	
Second Applicant

Minister for Immigration & Border Protection	
First Respondent
Migration Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
(Ex-tempore reasons settled from transcript)
1.	This is an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 11 June 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants skilled provisional visas.  Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 30 April 2015.  
2.	The First Applicant (the “Applicant”) is a citizen of India and applied for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled Graduate) visa (the “visa”) on 26 August 2013. The Second Applicant is the spouse of the Applicant. The Second Applicant’s entitlement to a visa is dependent upon the Applicant satisfying the criteria for the grant of the visa.
3.	On 12 February 2014, a delegate of the Minister refused to grant the Applicant a visa. The delegate concluded in the Decision Record, at Court Book (“CB”) p.48 – 53 that:
	“As the applicant did not provide evidence of competent English achieved in the 3 years immediately before the day of application for a Skilled – (VC 485) Graduate visa, the applicant does not satisfy the requirement for competent English as specified in Regulation 1.15C(1)(b).”
4.	The Applicant applied for a review of the delegate’s decision by filing an Application for Review (the “Review”) to the Tribunal on 4 March 2014. On 11 June 2014, the Tribunal affirmed the decision not to grant the Applicant a visa.
5.	The Tribunal’s decision was made upon the basis that the Applicant had failed to satisfy the mandatory requirement of Clause 485.212 of Schedule 2 to the Migration Regulations – namely that the Applicant had not submitted any evidence as to her English language competency such that would meet the requirements of Regulation 1.15C.
6.	These proceedings began with a show cause application filed on 30 June 2014.  The applicants continue to rely upon that application.  There is one ground in the application: 
	“To justify IELTS requirement.”  
7.	On its face, that ground does not point to any asserted jurisdictional error.  The application was, however, supported by an affidavit, attached to which is a document setting out submissions by the applicants.  The substance of those submissions is that the first applicant believes that she could obtain a passing score in the IELTS test if given sufficient time.  
8.	I have before me as evidence the Court book filed on 28 August 2014.  Only the Minister complied with the Court’s order for written submissions.  I invited oral submissions from the applicants today.  They said that they would abide by the Court’s decision.  They raised the possibility that if the score on several IELTS tests could be aggregated, an overall passing score could be achieved.  However, the visa criteria do not permit such aggregation.  As I made clear in my decision in Akhter & Ors v Minister for Immigration & Anor [2015] FCCA 35, the criteria require that the test be sat and passed on a single occasion prior to the visa application being made.  
9.	The failure of the applicants to comply with the visa requirement, as it applied at the time of their visa application, is an insuperable difficulty for them.  The Tribunal correctly set out in its decision the applicable criteria in the regulations.  The Tribunal correctly applied the applicable instrument supporting the Migration Regulations.  There are some issues relating to the instrument which were the subject of argument in Akhter but none have been raised in this case.  
10.	It is an uncontested fact that the Applicant did not provide to the Tribunal (or to the delegate at first instance) any evidence of the satisfactory completion of an IELTS test, for the purposes of evidencing compliance with IMMI 12/018, Regulation 1.15C(1)(a) and Clause 485.212 of Schedule 2 of the Migration Regulations.
11.	As the Tribunal observed in its decision at [13]; 
	“There is no evidence before the Tribunal that the applicant has achieved the specified test score results in a single relevant test conducted in the 3 years immediately before the day on which the visa application was made. The Tribunal is therefore satisfied that the application, when made, was not accompanied by evidence that the applicant has competent English as defined in r.1.15C(1).”
12.	Nor did the Applicant provide to the Tribunal (or to the delegate at first instance) any evidence that he held one of the passports listed in Clause 3F of IMMI 12/018, for the purposes of satisfying the alternative competent English criterion in Regulation 1/15C(2). See: MRT Decision at [6]; CB p.80.6.
13.	Plainly, there was, and could have been, no error on the part of the MRT in its finding, and the application to this Court must therefore be dismissed.  As was explained succinctly by McKerracher J in Ajaya v Minister for Immigration and Border Protection [2014] FCA 718 at [27]:
	“There was no error in the decision of the Tribunal or in the decision of the delegate. Pursuant to s 65MA, the Tribunal has no discretion to grant a visa to an applicant unless it is satisfied that the person meets the criteria for the grant of the visa. Berenguel is of no assistance to Mr Ajaya. The wording of reg 1.15C of the Regulations is in different terms from reg 1.15B(5) which was considered in Berenguel. The wording in the former being ‘not more than two years before the day on which the application was lodged’ and in the regulation as applicable here ‘in the two years immediately before the day on which the application was made’. The amendment to the wording was a deliberate policy change as evidenced in the Explanatory Statement to the Migration Amendment Regulations 2011 (No 3) which inserted reg 1.15C. The Minister explained:
	These amendments ensure that an applicant for a [General Skilled Migration] visa is assessed as holding the relevant English language test score before the application for a [General Skilled Migration] visa is made. This supports the policy intention that only applicants who are assessed as having the specified English language test score prior to making their application for the [General Skilled Migration] visa may satisfy the relevant Schedule 2 criterion. (emphasis added)”   
14.	The decision of the Tribunal is free from jurisdictional error.  It is, therefore, a privative clause decision and the application must be dismissed.  I so order, on a final basis.  In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5800.  That amount is below scale and I have no difficulty in accepting that costs in at least that amount have been reasonably and properly incurred on behalf of the Minister.  The applicants indicated that they may require time to pay.  I will not require payment of the costs by any particular date.  
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:  

Date: 7 May 2015