Mohammad KAWSARUL Alam v Minister for Immigration and Citizenship

[2012] HCASL 35

MOHAMMAD KAWSARUL ALAM
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2012] HCASL 35
S382/2011

1. The applicant is a citizen of Bangladesh. He first came to Australia in June 2005 as the holder of a student visa. Between November 2005 and July 2008 he completed a Master of Accounting at the Central Queensland University. In September 2008, he applied for a Skilled (Provisional) (Class VC) visa. The application was refused on the ground that the Minister's delegate was not satisfied that the applicant had competent English. At that time, "competent English" was defined in the Migration Regulations 1994 (Cth) ("the Regulations") by reference to the achievement of specified scores in tests for the International English Language Testing System (IELTS)[1].  The applicant had not provided evidence of his competence in English under the IELTS. 

   [1]Migration Regulations 1994 (Cth), reg 1.15C (as it then was).

2. The applicant sought merits review of the delegate's decision before the Migration Review Tribunal ("the Tribunal").  He acknowledged that he had not achieved the required score in each component of the IELTS.  He said that he had been "disordered" in the past year as the result of personal problems and that he had a phobia about doing another IELTS test.  He told the Tribunal that if he was given another month or two he would undertake the test.  He did not provide supporting medical evidence to the Tribunal.  The Tribunal declined the application for an extension of time in which to undertake another IELTS test.  It affirmed the delegate's decision not to grant the visa. 

3. An application for judicial review was dismissed by the Federal Magistrates Court (Emmett FM). 

4. An appeal to the Federal Court of Australia was dismissed (Collier J). 

5. The applicant seeks special leave to appeal from the order of the Federal Court. He advances two challenges, neither of which addresses the reasoning below. His first is a complaint that the Tribunal should not have refused his application in circumstances in which he is "someone who got phobia and some personal issues of incapacity to undertake the IELTS at the time of decision". This complaint is not further developed and does not disclose jurisdictional error. The second ground asserts error in the Tribunal's construction of the Regulations. The contention is not developed. Nothing in the material filed in support of the application casts doubt on the correctness of the decision below.

6. The application is dismissed.

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

J.D. Heydon
29 February 2012 V.M. Bell