Perez v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1514
•16 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Perez v Minister for Immigration and Citizenship [2025] FedCFamC2G 1514
File number(s): MLG 2489 of 2019 Judgment of: JUDGE CORBETT Date of judgment: 16 September 2025 Catchwords: MIGRATION – Temporary Graduate (Post Study Work Stream) (Subclass 485) visa - Application for judicial review – Whether jurisdictional error – IMMI 15/062-Whether IELTS test result satisfied Ministerial specification – Whether test result provided five months after application considered as accompanying visa application - Application dismissed Legislation: Migration Act 1958 (Cth) ss 56, 57, 476
Migration Regulations 1994 (Cth) cl 485.212
Cases cited: Anand v Minister for Immigration and Border Protection [2013] FCA 1050
Constantino v Minister for Immigration and Border Protection [2013] FCA 1301
Khan v Minister for Immigration and Border Protection [2018] FCAFC 85
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024] HCA 12; 280 CLR 321
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381
Nasirzadeh v Minister for Immigration & Anor [2019] FCCA 1115
Williams v City of Melbourne (1933) 49 CLR 142
Yu & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1477 at [40]-[42]
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of last submission/s: 19 August 2025 Date of hearing: 19 August 2025 Place: Melbourne Solicitor for the Applicants: The first applicant appeared in person, self-represented Counsel for the Respondents: Ms J Lucas Solicitor for the Respondents: Mills Oakley ORDERS
MLG 2489 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MONICA BIBIANA PARRA PEREZ
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
16 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’;
2.The name of the second respondent is amended to ‘Administrative Review Tribunal’;
3.The application for judicial review filed 1 August 2019 is dismissed; and
4.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding, fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE CORBETT
The applicant seeks judicial review of a decision of the second respondent (Tribunal) made 9 July 2019 to affirm a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Temporary Graduate (Post Study Work Stream) (Subclass 485) visa (visa).
References in these reasons to ‘CB’ pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit ‘R1’.
BACKGROUND
The applicant is a citizen of Columbia who first arrived in Australia on 3 August 2016 as the holder of a Student (Subclass 573) visa.
On 9 December 2018, the applicant applied for the visa.
The criteria required to obtain the visa is found in Div 485 of Sch 2 to the Migration Regulations1994 (Cth) (Regulations). The relevant criteria for the purpose of this application for judicial review is to be found in cl 485.212, which relevantly provided at the time of the application:
(1) The application was accompanied by evidence that:
(a) the applicant:
(i) has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and
(ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or
(b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.
The relevant legislative instrument made pursuant to cl 485.212 was IMMI 15/062, which specifies the International English Language Test System (IELTS) as one of the recognised language tests required for compliance with the Regulations. IMMI 15/062 also specifies the following minimum required scores for each of the test components:
The applicant did not hold a passport of a type specified by the Minister in IMMI 15/062, which were:
(a)the United Kingdom;
(b)the United States of America;
(c)Canada;
(d)New Zealand; or
(e)the Republic of Ireland.
The applicant submitted an IELTS test result dated 21 September 2018 with the visa application that recorded an overall test result of 5.5, which did not meet the minimum overall test score of 6 required. The test result recorded that the applicant reached the minimum scores for each component identified for Listening, Reading, Speaking and Writing but did not obtain the minimum overall test score required (CB 16).
On 29 January 2019, a delegate of the Minister refused to grant the visa because the IELTS test result that accompanied the application did not meet the minimum overall test score of 6 (CB 54-60).
On 16 February 2019, the applicant applied to the Tribunal to review the delegate’s decision (CB 61-2).
On 13 June 2019, the applicant provided a new IELTS test result to the Tribunal that recorded an overall test score of 6 (CB 94).
On 28 May 2019, the applicant was invited to attend a hearing before the Tribunal, to be held in person at Melbourne on 28 June 2019 (CB 80-1).
On 28 June 2019, the applicant appeared at a hearing before the Tribunal to give evidence and present arguments (CB 97-9). The applicant was assisted by an accredited interpreter fluent in Spanish and English languages.
On 9 July 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 105-7) (Decision).
TRIBUNAL DECISION
In the Decision, the Tribunal identified the issue to be decided as whether the applicant satisfied the criteria in cl 485.212 of the Regulations. In particular, whether the application for the visa was accompanied by an English language test result that achieved the requirements of the Minister’s specifications (CB 106 [8]).
The Tribunal identified the relevant instrument specifying the requirements as IMMI 15/062 and that the minimum overall test score required for an IELTS test was 6 (CB 107 [9]–[13]). The Tribunal held that because the application was accompanied by a test score result that recorded an overall score of 5.5, the applicant did not satisfy the criteria in cl 485.212(a)(ii) of the Regulations as required. The delegate’s decision under review was affirmed (CB 107 [15]).
The Tribunal noted that the applicant provided a test result with an overall result of 6 in June 2019 but that test result was more than five months after the date of the application (CB 107 [11]). This test result did not accompany the application for the visa (CB 107 [14]).
PROCEEDINGS IN THIS COURT
On 1 August 2019, the applicant applied for judicial review of the Decision under s 476 of the Migration Act 1958 (Cth) (Act) (CB 108-113). The application for judicial review was accompanied by an affidavit sworn by the applicant on 1 August 2019 (CB 115-6). The affidavit simply annexed a copy of the delegate’s decision and a copy of the Decision.
A hearing of the application for judicial review was listed to take place at Melbourne in person on 19 August 2025. At the hearing, the applicant appeared self-represented and was assisted by an accredited interpreter fluent in Spanish and English languages. Ironically, the applicant’s command of the English language was very good and she only required occasional assistance from the interpreter.
Ms Lucas of counsel appeared for the Minister.
At the hearing, the Court confirmed that the applicant received a copy of the Court Book and the Minister’s outline of written submissions filed 5 August 2025.
In the application for judicial review, the applicant identified the following grounds of review:
1.The respondent's delegate breached s57 of the Migration Act by not providing the reason or part of the reason for refusing to grant a visa.
In particular, the delegate failed to inform the Applicant that by 485.212, the language test must be undertaken within the three years before the day on which the application was made. The delegate failed to provide a reference or quote of the legislative instrument IMMI 15/062. This led to the Applicant to believe that she could supply a test result to the Administrative Appeals Tribunal and meet 485.212 under the Migration Regulations 1994.
2.The Migration Regulations Schedule 2 Subclass 485 is an invalid exercise of the power to make regulations under the Migration Act.
In particular, the language of the Subclass 485 in 485.212, 485.213 and 485.231(3) are unreasonable, confusing and misleading. The requirements to achieve the language test, the character test and the Australian Study Requirement test on a particular date are unnecessary and over-reaching requirements. These requirements do not serve the original purpose of the language test, the character test and the Australian Study Requirement test, but creating administrative obstacles for the Applicant.
Noting that the applicant was unrepresented, the Court gave her an opportunity to elaborate on, and further particularise, the grounds of review and to inform the Court of the basis on which the Tribunal made any error.
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision.
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the visa that is sought. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272).
APPLICANT’S SUBMISSIONS
The applicant submitted that at the time of making her application for the visa, she did not have assistance from a migration agent or lawyers, and she believed that the IELTS test results that accompanied her application complied with the Regulations. Her understanding was that if the test results showed that she satisfied the minimum requirements for each of the categories of Listening, Speaking, Reading and Writing, the results were sufficient. The results which she submitted to the Minister (CB 16) showed that she satisfied the minimum requirements for each component and she thought that was enough. Had the delegate or department told her before submitting the application or before making a decision that the results were inadequate, she would have been able to ‘fix up the issue’ and undergone another test before submitting her application.
The applicant also referred to s 56 of the Act which she submitted gave the delegate a discretion or power to ask for further information from an applicant. It was submitted that the Minister should have exercised that discretion before refusing the visa application. The applicant submitted that it was unfair for the department to have not given her advice about her position and to not have given her a chance to comply, thus denying her procedural fairness. The applicant said that she now understood what was required but at the time, she misunderstood the Regulations and she has since suffered from anxiety and depression due to personal trauma and family circumstances that meant it was very hard for her to apply for an alternative visa.
MINISTER’S SUBMISSIONS
Ms Lucas relied on the Minister’s outline of written submissions filed 5 August 2025 and a List of Authorities filed 13 August 2025. Ms Lucas explained for the benefit of the applicant the regime of the Act and Regulations and the strict requirement that a compliant test result accompany the application for the visa.
Ms Lucas also explained for the benefit of the applicant that the role of this Court was to review the Decision for jurisdictional error and not to undertake a review of the fairness or merits of the Tribunal’s reasoning.
Ms Lucas also explained that s 56 of the Act gave the Minister the discretion to request further information from an applicant but it did not require the Minister to do so, nor did it require the Minister or the delegate to provide advice or guidance to an applicant. Further, the Court could not review the exercise of the discretion contained in s 56 of the Act because a decision to exercise or not exercise the discretion was not a migration decision that was reviewable by this Court under s 476 of the Act.
Ms Lucas addressed both grounds identified in the application for judicial review and submitted that neither ground identified jurisdictional error by the Tribunal.
Ground one was a challenge to the delegate’s decision and not to the reasoning of the Tribunal in the Decision. It was alleged that the delegate breached s 57 of the Act by failing to provide relevant information to the applicant about her English language test results and the requirements of IMMI 15/062. It was submitted that the Court has no jurisdiction to review a failure to act by the Minister or a delegate of the Minister which is a ‘primary decision’ not open to review under s 476 of the Act.
In any event, there was no obligation on the delegate to advise the applicant of the criteria required by cl 485.212 of the Regulations or of the requirements of IMMI 15/062. The fact that the applicant did accompany her application with IELTS test results suggests that she had some knowledge of the requirements of the Regulations (albeit apparently misunderstood).
Ground two alleged that the requirements of the Regulations (in particular rr 485.212 and 485.213) are unreasonable, confusing and misleading. It was submitted that the applicant has no standing to challenge the validity of the Regulations but in any event, the requirements of the Regulations were objectively fair, reasonable and capable of understanding. A similar division of the Regulations was considered by the Full Court of the Federal Court in Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [15]-[17] per Tracey J (Khan) and also by Judge Driver in Nasirzadeh v Minister for Immigration & Anor [2019] FCCA 1115 at [42]-[49] (Nasirzadeh). In Khan, the Full Court rejected a submission that r 485.223 was invalid and explained that the objective temporal requirements of the Regulations give certainty to applicants and facilitates efficient decision-making. The Court also recognised that the requirements may occasionally lead to harsh outcomes, but that the compliance does not turn upon concepts of ‘blameworthiness or deservedness’.
In Nasirzadeh, Judge Driver considered the power to declare delegated legislation as invalid. The Court will only do so if the instrument is ‘so oppressive or capricious that no reasonable mind could justify it’. His Honour referred to and followed the decision in Khan and found that the regulation in question in that proceeding was valid.
Ms Lucas also relied on Yu & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1477 at [40]-[42] per Kiefel J, Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 per Lockhart, Beaumont and Hill JJ (Austral Fisheries) and Williams v City of Melbourne (1933) 49 CLR 142 at 149-150 as examples of the high threshold required before a delegated instrument will be found to be invalid. It was submitted that this Court should follow both Khan and Nasirzadeh and find r 485.212 to be valid.
It was submitted that because neither ground of review was tenable and the applicant had not identified any jurisdictional error by the Tribunal, the application for judicial review should be dismissed with costs.
CONSIDERATION
The function of this Court is to review the Decision and determine if the Tribunal has fallen into error by failing to conduct the statutory task of reviewing the delegate’s decision.
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024] HCA 12; 280 CLR 321 (LPDT), the plurality said at [3]:
[3]…Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
The applicant has not identified any material jurisdictional error in the Decision of the kind identified by the Court in LPDT.
The applicant has identified two grounds of review in the application for judicial review upon which she seeks to rely but neither ground has merit in the circumstances of this case. The first ground seeks to challenge the conduct of the delegate for failing to draw to the applicant’s attention the inadequacy of the test results that accompanied her application for the visa. There is no obligation on the delegate to do so, and neither ss 56 or 57 of the Act require the Minister or a delegate of the Minister to explain the statutory requirements of the Regulations and the Ministerial Specifications to an applicant at the time of applying for this category of visa. The onus is upon the applicant to satisfy the criteria.
In Khan at [15]-[16], Tracey J explained that in some circumstances the temporal requirements of the Regulations that require an application to be ‘accompanied by’ information may be extended to information that is supplied around the time of the application and that this may be sufficient (especially where information has been mistakenly omitted). However, as Katzman J observed in Anand v Minister for Immigration and Border Protection [2013] FCA 1050 (Anand) at [28], the words ‘accompanied by’ are not so elastic as to stretch to evidence five months after the application was lodged or in this case, after the decision of the delegate was made and an application for review has been lodged with the Tribunal.
The obligation created by reg 485.212 and IMMI 15/062 is to submit evidence of satisfaction of the minimum English language requirements specified by the Minister by undertaking a language test within three years before the day on which the application is made (IMMI 15/062 [4]). The applicant undertook the test during the required period but did not satisfy the minimum overall score requirements, which meant that her application did not comply with the Regulations. Therefore, the criteria required by the Regulations was not met and the delegate and the Tribunal were entitled to refuse to grant the visa.
It is regrettable that the applicant was unaware or mistaken about the test score requirements. As observed by Tracey J in Khan, if the applicant had been aware of the requirements, the applicant could have withdrawn the application, and a fresh application could have been made once compliant information was available (Khan at [14]). However, responsibility for obtaining the evidence is that of the visa applicant, not the Minister (Khan at [18]). Further, the Tribunal has no discretion to allow the applicant to rely on a test subsequently obtained. The Tribunal was bound to consider whether the application was ‘accompanied by’ the necessary evidence at the time the application was made (Khan at [20]-[21]).
The Tribunal did not err in affirming the delegate’s decision for the reasons given in the Decision. On this occasion, the strict requirements of the Regulations has led to a harsh result but the Court is bound to follow the decisions in Khan and Anand. There was no statutory or other obligation on the Minister or the Tribunal to cure defects in the evidence provided in support of the application for the visa.
Further, reg 485.212 and IMMI 15/062 are not so unreasonable in operation or interpretation as to declare them invalid, as is sought in ground two of the application for judicial review. IMMI 15/062 is open to some confusion in that an applicant for a visa (such as an applicant in this case) may satisfy the minimum score requirements for Listening, Reading, Speaking and Writing but still not obtain the minimum overall score requirement of 6. Whilst this anomaly may lead to some confusion, the intent of the specification when read as a whole, is that the gross average scores for each component of the test must result in an average overall score of 6 or more. In this case, the test result provided showed that the applicant obtained a gross average score of 5.5, which did not meet the requirement of the Regulations. On the second occasion, a satisfactory result was obtained but that test result did not ‘accompany’ the application for the visa.
Regulation 485.212 and IMMI 15/062 are within the scope of the power intended to be conferred by the legislature on the subordinate legislative authorities making them. The intent is to obtain proof of a satisfactory standard of English language skills for the purpose of the category of visa sought. The regulation and specification are reasonable, and it is only in extreme cases that the court takes the step of declaring delegated legislation to be invalid on the ground of unreasonableness (see Austral Fisheries at 383-4 and Constantino v Minister for Immigration and Border Protection [2013] FCA 1301 at [43] per Jacobson J (Constantino)).
As Jacobson J observed in Constantino at [46], ‘…there may be some injustice in the present case but the injustice is not brought about by the requirements of...’ the regulation. The injustice, if any, in this case is that the test results accompanying the application did not comply with the Ministerial Specifications in circumstances where the applicant may have been able to satisfy those requirements if she had taken another test and obtained a different overall result before submitting the visa application. Once the delegate made the decision on the evidence submitted, it was no longer open to the applicant to submit evidence of compliance. The temporal requirements of regulations such as r 485.212 can lead to harsh results but as Tracey J observed in Khan at [15], the test requires that ‘…A visa application is either accompanied by the necessary evidence or it is not’. The provisions of this kind are to facilitate efficient decision-making and guard against delay by visa applicants who are not ready at the time of the visa application to satisfy the required criteria (Khan at [17]).
The decision of the delegate to refuse to grant the visa is not a migration decision that this Court has jurisdiction to review for jurisdictional error. The Decision of the Tribunal does not disclose any material jurisdictional error and the application for judicial review must be dismissed.
OTHER MATTERS
The Minister sought an order that the name of the first respondent be amended to ‘Minister for Immigration and Citizenship’, which is the current Ministerial title which changed on 13 May 2025.
Further, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to ‘Administrative Review Tribunal’.
COSTS
Costs should follow the event. The Minister sought the costs and disbursements of and incidental to the application for judicial review in the sum of $8,371.30, which is the scale amount for a contested application concluded at a final hearing provided for in Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
The sum claimed is fair and reasonable in the circumstances of this case and will be ordered to be paid by the applicant.
ORDERS
The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.
The name of the second respondent is amended to ‘Administrative Review Tribunal’.
The application for judicial review filed 1 August 2019 is dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding, fixed in the sum of $8,371.30.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 16 September 2025
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