Sardar Khan Ghori v Minister for Immigration and Citizenship

[2011] HCASL 176

SARDAR KHAN GHORI
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2011] HCASL 176
S255/2011

1. The applicant applied for a Skilled (Provisional) visa. A delegate of the first respondent refused the application on the ground that the applicant had failed to provide evidence that he had competent English. "Competent English" was defined in reg 1.15C of the Migration Regulations 1994 (Cth) as requiring the applicant to achieve, in a test conducted not more than two years before the day on which the application was lodged, an IELTS score of at least six for each of the four test components of speaking, reading, writing and listening. The Migration Review Tribunal ("the Tribunal") affirmed the decision of the delegate, not being satisfied that the applicant had competent English.

2. The Federal Magistrates Court (Barnes FM) dismissed an application for review of the Tribunal's decision.  The applicant contended that the Tribunal had fallen into jurisdictional error by failing to give him additional time to enable him to complete an IELTS test successfully before giving its decision and that it failed to take into account his personal circumstances in refusing further time.  Barnes FM found that there was no jurisdictional error involved.  The conclusion that the applicant had not achieved the necessary scores by the time of its decision was plainly correct.  The Tribunal had taken into account all relevant circumstances in exercising its discretion not to permit a further adjournment.

3. The Federal Court of Australia (Perram J) dismissed an appeal on the ground that Barnes FM's conclusions were plainly correct. 

4. The draft Notice of Appeal which the applicant included with the papers filed in support of his application for special leave to appeal to this Court raises various grounds not raised in the courts below.  They are grounds which were discussed by Perram J as set out in Parmar v Minister for Immigration and Citizenship & Anor [2011] FCA 760. But no arguments are advanced in support of them, and in that sense the invocation of those complaints is only pro forma in character. In any event, for the reasons given in Dushyant Manilal Parmar v Minister for Immigration and Citizenship & Anor [2011] HCASL 175 , there are insufficient prospects of success on those grounds. There are no prospects of success on any other ground.

5. The application is dismissed.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
26 October 2011 V.M. Bell