Katam v Minister for Immigration - [2014] FCCA 633

FEDERAL CIRCUIT COURT OF AUSTRALIA

KATAM v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 633

Catchwords:
MIGRATION – Skilled migrant visa – English language test.

Legislation:
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)
Federal Circuit Court Rules2001 (Cth)

Datchinamurthy v Minister for Migration and Border Protection [2014] FCCA 258
Sandhu v Minister for Immigration and Border Protection [2013] FCCA 2285

Applicant:

VEERANARAYANA SASIDHAR KATAM

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

MIGRATION REVIEW TRIBUNAL

File Number:

DNG 6 of 2013

Judgment of:

Judge Harland

Hearing date:

14 March 2014

Date of Last Submission:

14 March 2014

Delivered at:

Darwin

Delivered on:

14 March 2014

REPRESENTATION

The Applicant:

In person

Counsel for the First Respondent:

Ms Newman

Solicitors for the First Respondent:

Clayton Utz

ORDERS

That the application is dismissed.
That the applicant shall pay the costs of the Respondent fixed at $6,646 in accordance with Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DARWIN

DNG 6 of 2013

VEERANARAYANA SASIDHAR KATAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

This is an application filed by the applicant on 13 September 2013 for judicial review of the decision made on 26 August 2013 by the Migration Review Tribunal refusing the applicant’s application for a skilled migrant visa. I have jurisdiction to determine the review application pursuant to section 476 of the Migration Act1958. In order for the applicant to be successful, I must be able to find a jurisdictional error.
The applicant filed an online visa application on 10 March 2012. The application itself refers to the requirement for the applicant to have successfully undertaken the required English test within the two year period prior to the date he filed the visa application. It is necessary for the applicant to satisfy the requirements set out in clause 485.215 of Schedule 2 of the Migration Regulations 1994. That is, the requirement that the applicant has competent English.
There are two ways in which an applicant can prove that he or she has competent English. One is having a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Ireland. If a person is a citizen of one of those countries and has a passport from one of those countries, they are taken to have competent English. The regulation makes that clear.
It is clear from the material provided in the court book, and is not argued, that the applicant does not have a passport from one of those countries. The applicant is a citizen of India.
The other way an applicant can prove he or she has…

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: [2014] FCCA 633
Decision Date: 14 March 2014

CaseChat Overview and Summary

The applicant, Mr. Katam, sought judicial review of a decision made by the Minister for Immigration concerning his application for a skilled migrant visa. The central dispute revolved around the validity of the English language test results submitted by Mr. Katam as part of his visa application. The matter was heard before Judge Harland in the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the delegate of the Minister had erred in law by failing to consider, or adequately consider, the evidence of Mr. Katam's English language proficiency that was provided to the delegate. Specifically, the Court was asked to determine if the delegate's conclusion that Mr. Katam had not satisfied the English language requirement for the visa was unreasonable or otherwise legally flawed.

Judge Harland reasoned that the delegate had indeed considered the evidence of English language proficiency presented by Mr. Katam. The Court found that the delegate was entitled to form the view that the submitted test results did not meet the required standard for the visa, and that this assessment was open to the delegate on the material before them. The Court applied the principles of administrative law, affirming that a delegate is not required to give specific reasons for rejecting evidence if the overall decision demonstrates that the evidence was considered. The Court concluded that there was no error of law in the delegate's decision-making process.

Consequently, the application for judicial review was dismissed. Mr. Katam was ordered to pay the costs of the Respondent, fixed at $6,646, in accordance with the Federal Circuit Court Rules 2001.

Orders

Orders of the court

1. That the application is dismissed.

2. That the applicant shall pay the costs of the Respondent fixed at $6,646 in accordance with Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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