Sara v Minister for Immigration and Border Protection & Anor

This matter came before the High Court of Australia concerning an application by the plaintiff for orders of certiorari and mandamus. The plaintiff sought to quash orders made by the Federal Court of Australia, constituted by Pagone J, which dismissed his application for an extension of time and leave to appeal. This appeal was from earlier orders of the Federal Circuit Court, constituted by Judge McGuire, which had dismissed the plaintiff's application for judicial review of a Migration Review Tribunal determination. The Tribunal had affirmed the delegate's decision to refuse the plaintiff a Skilled (Provisional) (Class VC) (Subclass 485) visa due to a failure to provide evidence of English language proficiency.

The legal issues before the High Court included whether vitiating error had been demonstrated to warrant declaratory relief, whether the Minister's delegate had misused section 65 of the *Migration Act 1958* (Cth) by not allowing the applicant to comment on exceptional circumstances beyond his control, and whether mandamus was available to compel the exercise of powers. The plaintiff also sought to be granted the 485 visa or have his case recommended to the Minister.

The High Court found that the plaintiff had not advanced an arguable basis for the relief sought and saw no reason to doubt the correctness of the decisions of the Federal Court, Federal Circuit Court, or the Tribunal. It was evident that the plaintiff had consistently failed to provide the required evidence of English language proficiency, despite being aware of this requirement and receiving notifications. The Court noted that the plaintiff's assertion of being misled by a migration agent was contradicted by the notifications received. Furthermore, the application for certiorari was considered misconceived as no relief was sought against the Federal Circuit Court, and no jurisdictional error was identified in the decisions of the Tribunal or the Federal Circuit Court. The application for mandamus was deemed out of time and an abuse of process, as it was based on the same grounds that had already been held to fail.

Consequently, the High Court dismissed the plaintiff's application with costs.