Dushyant MANILAL Parmar v Minister for Immigration and Citizenship

[2011] HCASL 175

DUSHYANT MANILAL PARMAR
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2011] HCASL 175
S254/2011

1. The applicant applied for a Skilled (Provisional) visa. A delegate of the first respondent refused that application. The applicant sought review in the Migration Review Tribunal ("the Tribunal"). The Tribunal upheld the decision of the delegate on the basis that the applicant had not satisfied certain regulations in the Migration Regulations 1994 (Cth) requiring the delegate to be satisfied that the applicant had competent English either in the two years prior to lodging the application or at the time the application was determined. The expression "competent English" was defined in reg 1.15C as requiring an applicant to achieve an IELTS score of at least six for each of the four test components of speaking, reading, writing and listening. The applicant conceded before the Tribunal that he had not passed the test. He was granted additional time to sit the test and, as at the decision date, had not provided an IELTS result indicating a score of at least six in each test component.

2. The Federal Magistrates Court (Smith FM) found that no argument was presented by the applicant pointing to any unfairness or jurisdictional error on the part of the Tribunal.  Hence the applicant's application to that Court for review was dismissed.

3. The applicant appealed to the Federal Court of Australia (Perram J).  Perram J noted that before him no attempt was made to cavil with any of Smith FM's conclusions.  Instead three fresh arguments were put by counsel – for before Perram J, unlike Smith FM, the applicant was represented. 

4. The first argument was that while one method of establishing competence in English might be that specified in the regulations (ie a score of six in each of the four test components), it was permissible to establish competence by other means.  Perram J rejected that argument as a matter of construction.

5. The second argument was that the definition of "competent English" in reg 1.15C was invalid because it was disproportionate to the attainment of the objectives of the Migration Act 1958 (Cth) ("the Act"). Perram J rejected this on the basis that it was consistent with the objectives of the Act that there be a way of testing the language skills of applicants which was suitable for application to the large number of applications made and which was reliably uniform in its application.

6. The third argument was that reg 1.15C was invalid because it impermissibly delegated to an external body – the institution administering the test – the function of determining whether a particular applicant had competent English. Perram J rejected that argument on the grounds that the regulation did establish a criterion, and that there was no true delegation: the Minister had to form an opinion, and was entitled to do so by relying on third party certification. It remained the Minister's task to form the opinion.

7. The papers filed by the applicant in support of his application for special leave to appeal do not demonstrate that there are sufficient prospects of demonstrating error in Perram J's careful and detailed reasoning to justify a grant of special leave to appeal to this Court.

1. The application is dismissed.

2. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
26 October 2011 V.M. Bell