Munagala v Minister for Immigration - [2014] FCCA 1015

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUNAGALA v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1015

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – where applicant required competent English for visa application – where applicant could not provide Tribunal with evidence of satisfactory IELTS test score – whether Tribunal fell into jurisdictional error.

Legislation:

Migration Regulations 1994 (Cth)

Applicant:

DEVADAS REDDY MUNAGALA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

ADG 213 of 2013

Judgment of:

Judge Raphael

Hearing date:

13 May 2014

Date of Last Submission:

13 May 2014

Delivered at:

Adelaide

Delivered on:

13 May 2014

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.
The name of the First Respondent be amended to Minister for Immigration and Border Protection.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 213 of 2013

DEVADAS REDDY MUNAGALA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

There comes before the Court this morning an application filed on 18 July 2013 for review of a decision of the Migration Review Tribunal. Mr Munagala, the applicant, had applied for a Skilled (Provisional) (class VC) subclass 485 (Skilled-Graduate) visa. That class required evidence that the applicant had obtained competent English. ‘Competent English’ is defined by regulation 1.15C of the Migration Regulations 1994 (Cth), and it relevantly requires an IELTS test score of at least 6 in each of the four competencies.
When Mr Munagala applied for his visa, he had not obtained an IELTS test score of the required amount in a test that was taken within two years of the application being made. Indeed, it does not appear that he has ever taken such a test. If he has, he has provided no evidence of it. As a result, his application was refused by the delegate. He then applied for review of that decision to the Migration Review Tribunal, but when the matter came before the Tribunal he still did not have any evidence of having competent English. And so it was not difficult for the Tribunal, in a decision of 11 paragraphs and just over one page, to confirm the decision under review.
When Mr Munagala applied to this Court, he put in his application the following:
“My application for Skilled Graduate 485 application was refused because I was not able to submit my IELTS results with 6 bands each. Then I applied to Migration Review Tribunal but I was unable to get the required English level of 6 bands each in IELTS. I am applying my case to Federal Circuit Court of Australia to get some more time to provide my IELTS results of 6 bands each i.e:- competent English.”
The application reveals that the decision of the Tribunal was clearly correct, and neither today nor at any time in the past 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 1015
Decision Date: 13 May 2014

CaseChat Overview and Summary

Munagala (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant a protection visa. The applicant, who is from Sri Lanka, claimed to fear persecution on the basis of imputed political opinion and membership of a particular social group. The delegate of the Minister had found that the applicant's claims were not credible and therefore did not engage Australia's non-refoulement obligations.

The primary legal issue before the court was whether the delegate's adverse credibility assessment was unreasonable, having regard to the evidence before the delegate and the relevant provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth). Specifically, the court considered whether the delegate had adequately considered all aspects of the applicant's evidence and whether the reasons for rejecting the applicant's claims were sufficiently particularised and logically sound.

Judge Raphael found that the delegate's assessment of the applicant's credibility was not unreasonable. The court noted that the delegate had considered the applicant's evidence, including country information, and had provided specific reasons for finding the applicant's account to be inconsistent and lacking in detail. The judge applied the principles of administrative law, including the requirement for a decision-maker to provide adequate reasons for their findings, and concluded that the delegate's reasons, while critical of the applicant's evidence, were sufficiently articulated and supported by the material before them.

The application for judicial review was dismissed.

Orders