Eadakudi v Minister for Immigration and Citizenship
[2025] FedCFamC2G 959
•20 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Eadakudi v Minister for Immigration and Citizenship [2025] FedCFamC2G 959
File number(s): SYG 1589 of 2020 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 20 June 2025 Catchwords: MIGRATION – Judicial review – Temporary Graduate visa – English language requirement – minimum overall test score met but test not undertaken within three years prior to application – invitation to impermissibly engage in merits review of the delegate’s decision – allegations of procedural unfairness – error found but not material – jurisdictional error not established – application dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth) cl 485.212
Cases cited: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158; [2015] FCA 1392
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of final submissions: 2 June 2025 Date of hearing: 30 May 2025 Place: Sydney Applicant: In Person Solicitor for the Respondents: Ms J Schultz, Mills Oakley ORDERS
SYG 1589 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VINAY KUMAR REDDY EADAKUDI
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
20 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.
2.The application filed on 1 July 2020 be dismissed.
3.The applicant pay the first respondent’s costs, of and incidental to the application, fixed in the sum of $5,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE PAPADOPOULOS
INTRODUCTION
Before the Court is an application seeking judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 1 June 2020. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Subclass 485 Temporary Graduate (Class VC) visa (Subclass 485 visa).
The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
For the following reasons the application is dismissed.
BACKGROUND
The background of the matter was set out in the Minister’s written submissions, which I primarily adopt.
The applicant is a male national of India who applied for a Subclass 485 visa on 28 August 2019.[1] In his visa application form, the applicant responded ‘yes’ to the following question:[2]
Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland (to demonstrate you have met the English language requirement) or have you undertaken an English test within the last 36 months that demonstrates you have met the English language requirement?
[1] Court Book (CB) 1 to 41.
[2] CB 1.
The applicant declared he had undertaken a Pearson Test of English Academic on 28 August 2019, the same day as the application was lodged (first PTE test).[3] A copy of the results from the first PTE test was subsequently provided to the Department, which indicated an overall score of 49 and at least 36 in each of the listening, reading, speaking and writing components of that test.[4]
[3] CB 13, 46.
[4] CB 46.
On 23 September 2019, the applicant submitted a Pearson Test of English Academic score report which indicated he undertook a test on 18 September 2019 and achieved an overall score of 53 and at least 36 in each of the listening, reading, speaking and writing components of that test (second PTE test).[5]
[5] CB 45, 55.
On 2 November 2019, the delegate refused to grant the visa.[6] The delegate found that the first PTE test indicated that the applicant did not achieve the minimum score required in an English language proficiency test. The delegate also found neither the first nor second PTE tests were taken within the three years immediately before the day on which the application was made. On that basis, the delegate concluded that the applicant did not satisfy the requirements of cl 485.212(a)(i) in Part 485 of Schedule 2 to the Regulations.[7]
[6] CB 48 to 56.
[7] CB 56.
The review application
On 13 November 2019, the applicant applied to the Tribunal for review of the delegate’s decision and appointed a registered migration agent as his representative.[8]
[8] CB 57 to 58.
On 12 May 2020, the applicant was invited to attend a telephone hearing before the Tribunal scheduled for 1 June 2020.[9]
[9] CB 67 to 76.
On 20 May 2020, the representative provided a submission to the Tribunal together with various documents including copies of the results of the first and second PTE tests.[10] The results of a third Pearson Test of English Academic test sat on 23 August 2019 (prior to the day on which the visa application was lodged) in which the applicant achieved an overall score of 48 and at least 36 in each of the listening, reading, speaking and writing components of that test (third PTE test) was also provided to the Tribunal.[11] The representative submitted that the applicant lodged his visa application ‘in rush’ without seeking any legal advice.[12] The representative’s submission raised an ‘issue’ as to ‘whether the applicant intentionally done it or done with his innocence’ and also took issue with the delegate not requesting information under s 56 or s 57 of the Act while the visa application was being processed.[13] The applicant invited the Tribunal to consider whether the applicant was ‘genuine or not’ and requested the matter be referred to the Minister pursuant to s 351 of the Act.[14]
[10] CB 81 to 86.
[11] CB 86.
[12] CB 82.
[13] CB 81 to 84.
[14] CB 83.
On 1 June 2020, the applicant and his representative attended a hearing before the Tribunal.[15] The hearing was conducted by telephone due to COVID-19 precautionary measures.
[15] CB 88 to 90.
The Tribunal’s decision
In affirming the decision of the delegate not to grant the applicant a Subclass 485 visa, the Tribunal identified the key issue for the consideration was whether the applicant met the requirements of cl 485.212.
The Tribunal identified that cl 485.212 provides the applicant must either:
(a)provide evidence of a specified English language test with the required score and undertaken within the specified period I order to meet subcl 485.212(a); or
(b)hold a passport from a specified country in order to meet subcl 485.212(b).
Specified within the relevant instrument IMMI 15/062: English language tests, scores and passports 2015 (IMMI 15/062) are accepted tests, scores, timeframes, and eligible passports. The Tribunal noted that IMMI15/062 provides that:
(a)for the purposes of subcl 485.212(a), persons who seek to meet the English language proficiency requirement having undertaken a Pearson Test of English Academic test within the three years before the day on which they lodge their Subclass 485 visa application (the temporal requirement) and must achieve a minimum overall score of 50 and at least 36 points in each of the listening, reading, speaking, and writing components of that test (the minimum score requirement).
(b)only persons holding a passport issued by the United Kingdom, United States of America, Canada, New Zealand, or Ireland qualify under subcl 485.212(b).
The Tribunal identified that the applicant’s first PTE test was taken on 28 August 2019, which was the same day the visa application was lodged. The Tribunal was of the view that by way of this test the applicant met neither the minimum score requirement nor the temporal requirement.
In relation to the second PTE test, the Tribunal found it also failed to meet the temporal requirement as it was taken after he lodged his Subclass 485 visa application.
The Tribunal recorded that the applicant claimed he completed the test before lodging the application and expressed frustration with the process. The Tribunal recognised that the applicant had raised procedural fairness concerns under s 56 and 57 of the Act but was of the view that there was no obligation for the Minister’s Department to seek or provide additional information in this case.
The Tribunal concluded that the applicant failed to meet either the English test or passport requirements under cl 485.212.
Accordingly, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a Subclass 485 visa.
RELEVANT LEGISLATION
Clause 485.212 in Part 485 of Schedule 2 to the Regulations provides:
485.212
(1) The application was accompanied by evidence that:
(a) the applicant:
(i) has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and
(ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or
(b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.
PROCEEDINGS IN THIS COURT
By way of an originating application filed on 1 July 2020, the applicant raises the following eight grounds of review (reproduced below without alteration):
1. Tribunal did not consider my arguments which are in representative written submission.
2. My arguments are "s.56 require the delegate to seek additional information from the applicant and that in any evident, the evidence before the delegate was I ( Applicant ) had undertaken a English language test within the relevant timeframe and had not achieved the minimum score. This information hasn't been declared in in the decision how delegate has known the information.
3. Tribunal says delegate would have known /got the results from PTE test scores. Here I did not submit the PTE results to delegate. It looks like delegate did not follow the minister guidelines and tribunal did in prediction way but not in accurate information in tribunal decision. This tribunal decision made jurisdictionally wrong.
4. regard to s.57, delegate did not have information submitted with application or any information is not matching to information given in application , delegate should have sent the invitation to me to comment. Delegate did not follow Honourable minister guidelines which his jurisdictionally wrong. If delegate has applied or executed the right methods according to law I would have realised and would have made new application as I do have proper PTE English language score meets the language criterion for 485 visa application.
5. I request to honourable judge that I had been treated unfairly because I had not received any letter from delegate. I had not submitted information regarding his PTE test when I lodged my visa application with lack of information. I have lodged the application with lack of knowledge. I have spent the nearly 150,000.00 AUD which is hard earned money of my parents to complete my education. I have contributed my work to Australia in working for Australia employers while I am studying. If delegate had sent the letter to me that would have saved my life.
6. I felt unhappy and cried lot my parents yelled on me lot of things happened in my life because of delegate decision. I hope this things would not happen to any students like me in the future.
7. Therefor I am appealing the tribunal decision at Federal Circuit Court within timeframe as I believe Administrative Appeals Tribunal could not fairly consider the reasons before making the decision, which as it turns out, is not in my favour.
8. Therefore, I believe the AAT and delegate have made a jurisdictional error in deciding my application and I request the Honourable Judge to serve the justice if possible otherwise I will return to India.
At hearing, the Court was informed by the Minister’s representative that an error had occurred in the preparation of the Court Book. Specifically, certain documents that had been before the Tribunal were either not reproduced in the Court Book as filed on 1 September 2020 or were not legible in their present form in the Court Book. The Minister’s representative then provided these documents to the applicant and the Court at hearing. Considerable time was spent during the hearing ascertaining where these documents ought to have appeared in the Court Book and whether they had any bearing upon the Tribunal’s decision. The applicant was then given the opportunity to respond to, and consider, whether to consent to the inclusion of additional documents in the Court Book as evidence. The applicant consented and, on that basis, the additional documents were admitted into evidence as Exhibit 2R.
CONSIDERATION
In this judicial review proceeding, the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: see s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2. This matter was explained to the applicant at hearing where he was afforded an opportunity to particularise his grounds and raise any further matters which indicated that the Tribunal had erred in making its decision. At hearing, the applicant declined to provide any submissions in relation to the proceedings or any of his grounds of review.
The Court has scrutinised the application, the materials before the Tribunal and the Tribunal’s decision to identify any jurisdictional error, noting the Court’s obligations towards unrepresented litigants as outlined in MZAIB v Minister for Immigration & Border Protection (2015) 238 FCR 158; [2015] FCA 1392 at [58] - [77], [100] and [112] - [113].
Ground 1
The applicant argues that the Tribunal failed to properly consider their written submissions. This contention is not borne out on the material. The Minister submits, and I agree, the Tribunal expressly considered the applicant’s written submissions. For example, at paragraph [14] of its decision, the Tribunal relevantly states:[16]
The representative’s submission is somewhat difficult to follow. It suggests that the issue in the applicant’s case is whether he did something intentionally or innocently, but what this involves is unclear. The submission suggests that another issue is the delegate’s failure to apply s.56 [which in essence states that Minister may, if he or she wants to, get any information that he or she considers relevant to a decision to grant or refuse the visa must have regard any information obtained] and s.57 [which deals with obligation to provide certain relevant information to the applicant and provide him or her with an opportunity to comment]. It is unclear from the submission what information the representative believes should have been sought from or provided to the applicant.
[16] CB 96 at [14].
Therefore, this ground is misconceived and must fail. Accordingly, no jurisdictional error arises on this basis.
Ground 2
In relation to ground 2, insofar as it pertains to the delegate’s decision or the Minister’s Department, I agree with the Minister that this Court does not have jurisdiction to review a primary decision made by a delegate: see s 476 (2)(a). This aspect of ground 2 is misconceived and must fail.
Ground 3
Taken at its highest, ground 3 contends the Tribunal erred because it incorrectly found the delegate obtained the results from the PTE test scores but the applicant did not submit these scores to the delegate.
This ground is confused. At hearing, there was nothing further provided by the applicant to expand on this contention. I interpret this as a general expression of dissatisfaction rather than a discernible criticism of the Tribunal’s decision. It is unclear what aspect of the Tribunal’s decision is ‘inaccurate’, and indeed whether that inaccuracy gives rise to error.
The Tribunal conducts a de novo review, meaning it considers the matter afresh and makes its own decision independently of the delegate’s findings. In my view, the Tribunal did conduct such a review in this case. In light of this, I agree with the Minister that this ground must fail. Accordingly, no jurisdictional error arises on this basis.
Ground 4
By ground 4, the applicant again takes issue with the delegate’s decision. As stated above, these are matters not within the jurisdiction of this Court: see s 476(2)(a). This is particularly relevant in relation to complaints pertaining to s 56 and 57 of the Act, concerning the actions of the delegate, which this Court does not have jurisdiction to review.
Therefore, this ground is misconceived and must fail. Accordingly, no jurisdictional error arises on this basis.
Ground 5
By ground 5, the applicant contends he was treated unfairly because he did not receive ‘any letter’ from the delegate and lodged his application with a ‘lack of knowledge’.
Once again, this appears to amount to broad criticisms of the delegate’s decision, which fall outside the jurisdiction of this Court. Further, the applicant’s ‘lack of knowledge’ when he lodged the application is not a matter which can be said to give rise to error on the Tribunal’s part. Accordingly, I find that this ground must fail.
Grounds 6, 7 and 8
By the remaining three grounds, the applicant makes some general complaints as to emotional hardship and alleged procedural unfairness. I agree with the Minister’s submission that emotional distress resulting from the delegate’s decision does not constitute a legal error capable of review. Accordingly, no jurisdictional error arises on this basis.
The Tribunal’s consideration of the applicant’s PTE tests
For convenience and clarity, I note the applicant undertook three PTE tests as follows:
(a)First PTE test undertaken on 28 August 2019 in which he achieved an overall score of 49 and at least 36 in each of the listening, reading, speaking and writing components of that test;[17]
(b)Second PTE test undertaken 18 September 2019 in which he achieved an overall score of 53 and at least 36 in each of the listening, reading, speaking and writing components of that test;[18] and
(c)Third PTE test undertaken on 23 August 2019 in which he achieved an overall score of 48 and at least 36 in each of the listening, reading, speaking and writing components of that test.[19]
[17] CB 46.
[18] CB 45.
[19] CB 86.
As the Minister submits, cl 485.212 requires that a Subclass 485 visa application be accompanied by evidence that the applicant has undertaken an English language test, as specified by IMMI 15/062.
IMMI 15/062 specifies that:
(a)the minimum required overall score required for a PTE test in English is 50 and a minimum score of 36 in each of the listening, reading, speaking and writing components of that test;
(b)the test must have been undertaken within the three years before the day on which the application was made.
The Tribunal correctly found that neither the first nor second PTE tests met the requirements of cl 485.212. The first PTE test was undertaken on the day the application was lodged and the applicant achieved a score below the minimum requirement. While the applicant did achieve a score above the minimum requirement in the second PTE test, that test was undertaken after the Subclass 485 visa application was lodged and thereby did not satisfy the temporal requirement.
However, the material before the Court indicates there was a third PTE test undertaken by the applicant on 23 August 2019, five days prior to the lodgement of his application, in which he achieved an overall score of 48 and at least 36 in each of the listening, reading, speaking and writing components of that test. Evidence of the third PTE test was provided to the Tribunal on 20 May 2020. The Tribunal made no mention of the third PTE test, or the applicant’s corresponding result, in its decision. In my view, that evidentiary material was of a quality that required consideration by the Tribunal for the purposes of its assessment of cl 485.212. Accordingly, the Tribunal erred by failing to refer to and consider the third PTE test.
The question then arises as to whether that particular error in this case was material. In my view, it was not. The third PTE test clearly satisfies the temporal requirement as it was undertaken within the three years immediately prior to the date the application was lodged. However, the overall score achieved by the applicant on the third PTE test was 48. As such, the third PTE test fails to satisfy the minimum score requirement in IMMI 15/062. Accordingly, even if the Tribunal had considered the third PTE test, its decision could not ‘realistically’ have been different in the sense contemplated by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [14].
CONCLUSION
For the above reasons, the application before this Court is dismissed.
As a consequence of changes to Ministerial portfolio arrangements following the recent Federal Election on 23 May 2025, the name of the first respondent is to be amended to ‘Minister for Immigration and Citizenship’.
Costs
I heard the parties in relation to costs and note that the Minister sought costs to be paid by the applicant to be fixed in the sum of $6,100.
In light of the circumstances surrounding the deficient preparation of the Court Book in this case, I invited the Minister to provide submissions as to why the costs sought were fair and reasonable given that the $6,100 claimed included labour associated with the preparation of a Court Book that was inaccurate. By way of supplementary written submissions filed on 2 June 2025, the Minister submits:
(a)the amount sought is below scale;
(b)the matter has been ongoing for nearly five years, necessitating extensive preparation including the preparation, filing and service of a response, Court Book, written submissions and an amended response; and
(c)that the matter also required preparation for and attendance at a callover and final hearing.
I am of the view that costs should follow the event. Having considered the above submissions, and the significant nature of deficiency in the preparation and filing of the Court Book, I disagree that the amount of $6,100 is reasonable in the circumstances of this case. I find the lower amount of $5,500 to be reasonable in the circumstances. I will so order the applicant pay the first respondent’s costs, of and incidental to the application, fixed in the sum of $5,500.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 20 June 2025
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