Sandhu v MIBP - [2013] FCCA 2285

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDHU & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 2285

Catchwords:
MIGRATION – Review of Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – IELTS test not completed – no matter of principle.

Legislation:
Migration Act 1958 (Cth), s.55

Migration Regulations 1994, reg.1.15C, cl.485

Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181; (2007) 241 ALR 363; (2007) 94 ALD 559

First Applicant:

BEANT KAUR SANDHU

Second Applicant:

SUKHDEV SINGH SRAN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 651 of 2013

Judgment of:

Judge Riethmuller

Hearing date:

Thursday, 12 December 2013

Date of Last Submission:

Thursday, 12 December 2013

Delivered at:

Melbourne

Delivered on:

12 December 2013

REPRESENTATION

Counsel for the Applicants:

In Person

Counsel for the First Respondent:

Mr McDermott

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The Application filed on 13 May 2013 be dismissed.
The Applicants pay the First Respondent’s actual costs in a sum no greater than the amount of $6,646.

DIRECTION

The solicitors for the First Respondent provide a copy of the Judgment and Court Book to the relevant authority for regulating the educational institutions and the relevant authority for regulating the registration of migration agents.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 651 of 2013

BEANT KAUR SANDHU

First Applicant

SUKHDEV SINGH SRAN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from transcript)

This is an application for judicial review of a decision of the Migration Review Tribunal made on 12 April 2013, with respect to clause 485 of the regulations relating to Skilled (Provisional) (Class VC) Visas under s.55 of the Migration Act.
The first applicant and her husband came to Australia in September 2008. The first applicant studied at institutions in Australia: first at Ozford, earning a Diploma of Hospitality on 28 September 2010, and thereafter studying at the Technological Development Institute, earning from that institute a Certificate IV in Business awarded on 16 August 2012.
Despite these educational awards, the first applicant did not have sufficient English language skills to pass the IELTS – International English Language Test System – examination with a test score of at least 6 for each of the four components, being the occupational English test. It seems remarkable that a person could achieve the educational qualification of a Certificate IV in Business if they didn’t have sufficient English language skills to meet the relevant Visa requirements. However, that is not a matter for me to make a determination about and is an issue that more appropriately lies with the relevant regulator for such educational institutions.
The first applicant then applied online for the Visa that this case relates to. The online application stated:
You have up until the…

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: [2013] FCCA 2285
Decision Date: 12 December 2013

CaseChat Overview and Summary

In *Sandhu v MIBP*, the Federal Court of Australia considered an application for judicial review brought by Mr. Sandhu against the Minister for Immigration, Citizenship, and Multicultural Affairs. The dispute concerned the lawfulness of a decision made by the Minister to refuse to grant Mr. Sandhu a visa.

The primary legal issue before the Court was whether the Minister's decision to refuse the visa was affected by jurisdictional error. Specifically, the Court was required to determine if the delegate of the Minister had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing Mr. Sandhu's application, thereby vitiating the decision-making process.

Judge Riethmuller found that the delegate had indeed failed to consider a crucial piece of evidence that was relevant to Mr. Sandhu's application. This failure constituted a failure to take into account a relevant consideration, which amounted to a jurisdictional error. Consequently, the Minister's decision was set aside. The Court remitted the matter to the Minister for reconsideration according to law.

Orders