Govind Govind v Minister for Immigration and Border Protection

[2015] HCASL 43

GOVIND GOVIND

v

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR

[2015] HCASL 43
S245/2014

1. On 28 July 2011, the applicant, an Indian national, applied for a Skilled (Provisional) (Class VC) visa. On 27 June 2012, a delegate of the first respondent refused the application on the basis that the applicant had not shown he had "competent English" in accordance with the Migration Regulations 1994 (Cth) ("the Regulations").

2. On 21 May 2013, the Migration Review Tribunal ("the Tribunal") affirmed the delegate's decision. The Tribunal was not satisfied that the applicant had undertaken an English language test within the required period and that met the statutory requirements to show he had "competent English" as defined in the Regulations. The Tribunal refused to delay its decision to allow the applicant to provide results of an English language test recently undertaken. This was because the statutory requirement was that the test be undertaken in the two years before the application was made.

3. On 12 May 2014, the Federal Circuit Court of Australia (Emmett J) dismissed an application for judicial review of the Tribunal's decision, on the basis that the findings of the Tribunal were open to it on the evidence before it, and that its decision was not affected by jurisdictional error.

4. On 14 August 2014, the Federal Court of Australia (Katzmann J) dismissed the applicant's appeal.  Katzmann J noted that the applicant's submissions proceeded on the false assumption that English competence was a matter the Court could assess, however "competent English" is a defined term and the applicant did not satisfy the statutory definition.  Her Honour held that there was no error in the Tribunal's refusal to delay its decision, as the test results the applicant sought to provide would have been irrelevant to the Tribunal's review.

5. The applicant seeks special leave to appeal to this Court. The applicant has not identified any question of law that would justify the grant of special leave and there is no reason to doubt the correctness of the Federal Court's decision. The applicant's draft notice of appeal and written case are largely concerned with his English fluency as a factual matter, which is not relevant before this Court given the statutory definition of "competent English", and the merits of the relevant Migration Regulations. Special leave is refused.

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

S.M. Kiefel
9 April 2015 P.A. Keane