Luwandri v Minister for Immigration - [2020] FCCA 3003

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUWANDRI v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 3003

Catchwords:
MIGRATION – Graduate visa – decision of Administrative Appeals Tribunal – where the applicant did not sit an English Language Test before applying for visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.349, 476

Migration Regulations 1994 (Cth), reg.4.15, cl.485.212 of sch.2

Cases cited:

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

Applicant:

DIOVIAN LUWANDRI

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 183 of 2020

Judgment of:

Judge Kendall

Hearing date:

5 November 2020

Date of Last Submission:

5 November 2020

Delivered at:

Perth

Delivered on:

9 November 2020

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Ms G Ellis

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 183 of 2020

DIOVIAN LUWANDRI

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 Indonesia. He arrived in Australia in February 2013 on a student visa (Court Book (“CB”) 10).
On 5 March 2018, the applicant applied for a Temporary Graduate (class VC) Temporary Graduate (Post-Study Work) (subclass 485) visa (the “visa”) (CB 1-21).
On 8 March 2018, the applicant wrote to the then Department of Home Affairs as follows (CB 15):
Thank you for reviewing my visa application. I am writing this letter to inform you regarding the English language requirement.
At the time of lodgement, I was not able to provide the evidence that I have met the English language requirement. I have attached a copy of the booking receipt for the IELTS test that I would be undertaking on the 24th of March 2018. I will append the result of the test that I will undertake as soon as I receive it.
Please do let me know if you require further information or clarification. I believe that the booking receipt attached would be sufficient to show that I have the intention to meet the English language requirement so as to not delay the application…

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 3003
Decision Date: 9 November 2020

CaseChat Overview and Summary

In *Luwandri 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 applicant's failure to undertake an English Language Test prior to lodging their visa application.

The primary legal issue before the Federal Court was whether the AAT's decision constituted a jurisdictional error. Specifically, the court was required to determine if the AAT had erred in law by affirming the delegate's decision to refuse the graduate visa, given the applicant's non-compliance with the requirement to have completed an English Language Test at the time of application.

Justice Kendall found no jurisdictional error in the AAT's decision. The court reasoned that the relevant legislative provisions and the Migration Regulations clearly stipulated that an applicant must satisfy the English language requirement at the time of application. As the applicant had not met this prerequisite, the AAT had correctly concluded that the visa criteria were not satisfied. The application for judicial review was therefore dismissed.

Orders