Akhter v Minister for Immigration - [2015] FCCA 35

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKHTER & ORS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 35

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of skilled residence visas – lack of demonstration of English language competency – whether the Tribunal misconstrued the Migration Regulations 1994 (Cth) prescribing the relevant test or whether those Regulations are invalid considered.

WORDS AND PHRASES – “Competent English”.

Legislation:

Migration Act 1958 (Cth), ss.31, 48A, 504

Migration Amendment Regulation 2012 (No.2) (Cth)
Migration Amendment Regulations 2011 (No.3) (Cth)
Migration Regulations 1994 (Cth)
Racial Discrimination Act 1975 (Cth), s.10

Badrujamaludin & Anor v Minister for Immigration [2014] FCCA 1004
Bali v Minister for Immigration [2014] FCA 986

Berenguel v Minister for Immigration [2010] HCA 8; (2010) 264 ALR 417
Bienke v Minister for Primary Industries (1996) 63 FCR 567

Ghori v Minister for Immigration [2011] FCA 759

Guo v Minister for Immigration (2009) 176 FCR 83
Kaushal v Minister for Immigration & Anor [2014] FCCA 2857

Macabenta v Minister for Immigration (1998) 90 FCR 202
Milanes v Minister for Immigration & Anor [2015] FCCA 205

Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381

Palanisamy v Minister for Immigration & Anor [2013] FCCA 1779

Parmar v Minister for Immigration [2011] FCA 760, (2011) 195 FCR 186
Sidhu v Minister for Immigration [2014] FCA 935

Singh v Minister for Immigration [2014] FCA 185

SZGIZ v Minister for Immigration [2013] FCAFC 71 (2013), 212 FCR 235

Qui v Minister for Immigration (1994) 55 FCR 439
Yu v Minister for Immigration (2004) 140 FCR 126

First Applicant:

TASLEMA AKHTER

Second Applicant:

MOHAMMAD SALAHUDDIN

Third Applicant:

ADYAN UDDIN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 24 of 2014

Judgment of:

Judge Driver

Hearing date:

25 November 2014

Delivered at:

Sydney

Delivered on:

9 February 2015

REPRESENTATION

Solicitors for the Applicant:

Mr M Jones of Parish Patience Immigration Lawyers

Solicitors for the Respondents:

Mr A Markus of Australian Government Solicitor

ORDERS

The application as amended on 25 November 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 24 of 2014

TASLEMA AKHTER

First Applicant

MOHAMMAD SALAHUDDIN

Second Applicant

ADYAN UDDIN

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

These proceedings concern the issue of the interpretation and validity of the Migration Regulations 1994 (Cth) (Regulations) which prescribe tests for English language proficiency for the purposes of eligibility for certain classes of visas. The application before the Court is to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 12 December 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants skilled residence visas.
The following statement of background facts is derived from the submissions of the parties.
The first applicant, Ms Akhter, is the primary applicant for the visas the subject of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Akhter v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FCCA 35
Decision Date: 9 February 2015

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Migration Review Tribunal (MRT) to refuse the applicant, Mr Akhter, skilled residence visas. The primary ground for refusal by the MRT was the applicant's alleged failure to demonstrate English language competency as required by the Migration Regulations 1994 (Cth).

The central legal issues before the Court were whether the MRT had misconstrued the relevant provisions of the Migration Regulations 1994 (Cth) concerning the demonstration of "competent English," or alternatively, whether those Regulations themselves were invalid.

Justice Driver found that the MRT had correctly interpreted and applied the relevant regulations. The Court held that the applicant had not provided sufficient evidence to satisfy the requirements of the regulations regarding English language proficiency. Consequently, the Court determined that the applicant had not established that the MRT's decision was affected by an error of law.

The application, as amended on 25 November 2014, was dismissed.

Orders

Orders of the court

The application as amended on 25 November 2014 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.