Kaushal v Minister for Immigration and Border Protection

[2015] FCA 421

FEDERAL COURT OF AUSTRALIA

Kaushal v Minister for Immigration and Border Protection [2015] FCA 421

Citation:	Kaushal v Minister for Immigration and Border Protection [2015] FCA 421
Appeal from:	Kaushal v Minister for Immigration and Border Protection [2014] FCCA 2857
Parties:	SUMIT KAUSHAL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION, MIGRATION REVIEW TRIBUNAL and FEDERAL CIRCUIT COURT OF AUSTRALIA
File number:	NSD 1359 of 2014
Judge:	PERRAM J
Date of judgment:	5 May 2015
Catchwords:	MIGRATION – decision of Migration Review Tribunal affirming decision to refuse appellant skilled visa – issue concerning essentiality of English language test scores
Legislation:	Migration Regulations 1994 (Cth) reg 1.15C
Date of hearing:	5 May 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	5
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the First Respondent:	Mr M Wiese of Clayton Utz
Solicitor for the Second Respondent:	The Second Respondent filed a submitting appearance

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1359 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SUMIT KAUSHAL
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

FEDERAL CIRCUIT COURT OF AUSTRALIA
Third Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	5 MAY 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

2.The first respondent’s costs be assessed at $1,730.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1359 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SUMIT KAUSHAL
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

FEDERAL CIRCUIT COURT OF AUSTRALIA
Third Respondent

JUDGE:	PERRAM J
DATE:	5 MAY 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an appeal from orders made by the Federal Circuit Court of Australia on 5 December 2014.  On that day, that Court dismissed the present appellant’s application to that Court for orders providing for judicial review of an anterior decision made by the Migration Review Tribunal (‘the Tribunal’).  In turn, the Tribunal had affirmed a decision made by a delegate of the Minister by which it was decided to refuse to grant to the present appellant a sub-class 885 skilled visa.  The learned Federal Circuit Court judge dismissed the application for judicial review on the basis that the Tribunal’s reasons for its decision disclosed no jurisdictional error. 

2. The underlying decision of the Tribunal had centred upon the fact that the appellant had not obtained the score required by reg 1.15C of the Migration Regulations 1994 (Cth), in conjunction with the Specification of Language Tests, Score and Passports (IMMI 12/018). The effect of these instruments, relevantly, was that the appellant needed a score of at least 6 for each component of the International English Language Test System (‘IELTS’) test in order to qualify for the grant of a sub-class 885 skilled visa. The Tribunal concluded that it could not grant the visa because the appellant had not obtained the requisite IELTS test score. The Federal Circuit Court was unable to discern any error in that conclusion, despite the articulation before it of two grounds of appeal. The first ground had contended that the Tribunal had failed to take into account the evidence which the appellant put before the Tribunal. The trial judge observed, at [17] of his reasons, that this allegation could not be material in circumstances where the undisputed evidence was that the requisite IELTS test scores had not been achieved and thus the qualifying criteria for the visa had not been satisfied.

3. Ground 2 related to a complaint by the appellant that his excuse that he was not aware of changes to the rules immediately before submitting his visa application was not accepted.  His Honour disposed of that argument on the basis that there was no flexibility for the decision-maker on the visa application to excuse what had occurred.  Essentially, this is parallel reasoning to the notion that whilstsoever the IELTS test remained unsatisfied the appellant could not be eligible for the visa.  In this Court the appellant appeared for himself and, despite having raised two grounds of appeal, was frank in his assessment of what had taken place in the Federal Circuit Court, for which I am grateful.

4. He did not pursue the two grounds of appeal which were notified in the notice of appeal filed in this Court.  They were, essentially, the same as those filed in the Federal Circuit Court, albeit that this time the allegations were made against the Federal Circuit Court rather than against the Tribunal, as they had been in the earlier document, so that, for the reasons that were given by the learned Federal Circuit Court judge, there was nothing of merit in the grounds of appeal filed in this Court and the appellant was right not to pursue them.  One can have sympathy for the position in which the appellant finds himself but, regrettably, it is not the role of this Court to provide assistance in that regard and the matter will have to proceed in the ordinary way.

5. The orders I make are:

   (1)The appeal be dismissed with costs.

   (2)The first respondent’s costs be assessed at $1,730.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:       12 May 2015