Nayyar v Minister for Immigration and Border Protection

This matter concerned an application by Mr R. Nayyar to the High Court of Australia for an order to show cause why certiorari should not issue to quash a judgment of the Federal Court of Australia. The dispute originated from the refusal of Mr Nayyar's application for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled-Graduate) visa. This refusal was affirmed by the Migration Review Tribunal, and subsequent appeals to the Federal Circuit Court and the Federal Court were dismissed.

The High Court was required to determine whether there was any identifiable appealable error in the orders made or the approach adopted by the Federal Circuit Court, which had dismissed Mr Nayyar's application for judicial review of the Migration Review Tribunal's decision. Specifically, the court considered Mr Nayyar's grounds of appeal, including allegations of misuse of section 65 of the Migration Act 1958 (Cth) and the contention that the competent English requirement under regulation 1.15C of the Migration Regulations 1994 (Cth) should have been assessed at the date of the hearing rather than the date of the visa application.

The High Court found no error in the reasoning or conclusions of Justice Gordon of the Federal Court. Her Honour had correctly applied the principle that the competent English requirement could be satisfied at the date of the hearing, referencing relevant High Court authority. Furthermore, any error by the Migration Review Tribunal in referring to the wrong legislative instrument under regulation 1.15C was deemed to be without consequence, as the substantive requirements under the relevant instruments were the same. The court noted that it was not disputed that Mr Nayyar failed to provide evidence of undertaking an International English Language Testing System (IELTS) test or an Occupational English Test (OET) certificate within the relevant timeframe and to the appropriate standard, thus failing to meet the visa requirements.

Consequently, the High Court dismissed Mr Nayyar's application for an order to show cause. The Minister was awarded costs.