George v Minister for Immigration - [2020] FCCA 2161

FEDERAL CIRCUIT COURT OF AUSTRALIA

GEORGE v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2161

Catchwords:
MIGRATION – Graduate visa – decision of the Administrative Appeals Tribunal – where the applicant completed English Language Test after lodging visa application – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.5, div.5, ss.359A, 359AA, 360, 366, 476

Migration Regulations 1994 (Cth), cl.485.212 of sch.2

Cases cited:

Bala v Minister for Immigration & Border Protection [2019] FCA 600

Applicant:

JESTIN GEORGE

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 135 of 2020

Judgment of:

Judge Kendall

Hearing date:

5 August 2020

Date of Last Submission:

5 August 2020

Delivered at:

Perth

Delivered on:

6 August 2020

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the First Respondent:

Ms S J Oliver

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 135 of 2020

JESTIN GEORGE

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of India. He arrived in Australia on a student visa on 9 February 2016 (Court Book (“CB”) 112). On 18 July 2018, he applied for a Temporary Graduate (Post-Study Work) (subclass 485) (the “visa”) (CB 33-44).
On 31 July 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 49-56). The delegate refused the visa because it was determined that the applicant failed to satisfy cl.485.212 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, there was no evidence that the applicant had completed an English Language Test in the three years immediately prior to applying for the visa.
On 1 August 2018, the applicant emailed the Minister’s Department advising that he had taken an English Language Test the day after he had lodged the visa application and he had obtained the requisite results (CB 57-58). He asked if his application could be reconsidered. The applicant was advised that it could.
On 15 August 2018, the applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 59-60). He was assisted by a migration agent.
The applicant…

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.

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Details

Case: [2020] FCCA 2161
Decision Date: 6 August 2020

CaseChat Overview and Summary

In *George v Minister for Immigration*, the applicant sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning their application for a graduate visa. The core of the dispute revolved around the timing of the applicant's English language test results.

The primary legal issue before the Federal Court was whether the AAT had committed a jurisdictional error in its assessment of the applicant's eligibility for the graduate visa. Specifically, the court had to determine if the AAT's consideration of an English Language Test completed *after* the visa application was lodged constituted a failure to exercise its jurisdiction according to law.

Justice Kendall found no jurisdictional error. The court reasoned that the relevant legislative provisions and the Migration Regulations did not mandate that the English Language Test be completed prior to the lodgement of the visa application. The AAT was entitled to consider the evidence presented, including the test results obtained after the application date, in determining whether the applicant met the visa criteria. The application was therefore dismissed.

Orders