Savsani v Minister for Immigration and Border Protection
[2014] FCA 479
•13 May 2014
FEDERAL COURT OF AUSTRALIA
Savsani v Minister for Immigration and Border Protection [2014] FCA 479
Citation: Savsani v Minister for Immigration and Border Protection [2014] FCA 479 Appeal from: Savsani & Anor v Minister for Immigration and Border Protection & Anor [2014] FCCA 213 Parties: ANKURKUMAR NARANBHAI SAVSANI and NIRALI ANKURKUMAR SAVSANI v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: NSD 159 of 2014 Judge: MARSHALL J Date of judgment: 13 May 2014 Legislation: Migration Regulations 1994 (Cth) r 1.15C, as amended by Migration Amendment Regulations 2011 (No 3) (Cth) Date of hearing: 13 May 2014 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 13 Counsel for the appellants: The first appellant represented the appellants Counsel for the respondents: Mr T Reilly Solicitor for the respondents: DLA Piper Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 159 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: ANKURKUMAR NARANBHAI SAVSANI
First AppellantNIRALI ANKURKUMAR SAVSANI
Second AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
MARSHALL J
DATE OF ORDER:
13 MAY 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellants pay the first respondent Minister’s costs of the appeal.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 159 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: ANKURKUMAR NARANBHAI SAVSANI
First AppellantNIRALI ANKURKUMAR SAVSANI
Second AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
MARSHALL J
DATE:
13 MAY 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The matter before the Court arises from the first respondent Minister’s rejection of the first appellant’s application for a Skilled (Provisional) (Class VC) (Subclass Skilled Graduate – 485) visa.
A criterion for the grant of such a visa is that the applicant for the visa has “competent” English. At the time of the making of the application, regulation 1.15C of the Migration Regulations 1994 (Cth), as amended by the Migration Amendment Regulations 2011 (No 3) (Cth), defined “competent English” by reference to the Minister’s satisfaction that the applicant:
(a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i)an IELTS score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; and
(ii)a score:
(A) specified by the Minister in an instrument in writing for this sub-sub-paragraph;
(B) in a language test specified by the Minister in the instrument; and
(b)holds a passport of a type specified by the Minister in writing for this paragraph.
The first appellant, Mr Savsani, applied for a skilled visa on 12 March 2011. He included the second appellant, Ms Savsani, in the application, as a member of his family unit.
In response to the application, the Department of the first respondent Minister required evidence of Mr Savsani’s English language ability. The request said that “this may include a certified copy of your International English Language Testing System (IELTS) Certificate or Occupational English Certificate (OETC).”
On 29 March 2012, a delegate of the Minister rejected Mr Savsani’s application for the skilled visa. The delegate did so on the basis that Mr Savsani had provided no evidence of his English language ability, in accordance with reg 1.15C.
Mr Savsani sought a merits review of the delegate’s decision before the Migration Review Tribunal. The Tribunal affirmed the delegate’s decision.
Mr Savsani appeared before the Tribunal in an oral hearing. At [22]-[24], the Tribunal said:
The Tribunal explained the requirement that the applicant has competent English and gave the definition as set out in the regulations. It asked if the applicant has evidence of competent English. The applicant confirmed that he does not currently have evidence of competent English. He confirmed that he sat IELTS tests on 27 October 2012 and 3 November 2012. The Tribunal agreed to give the applicant until close of business on 20 November 2012 to provide evidence of the results of those tests before making its decision. The Tribunal explained its verification process. The applicant asked the Tribunal to wait for the results of further tests. The Tribunal indicated it would not agree to provide him with further time to sit more IELTS tests. It noted they made the visa application in March 2011, nearly 2 years earlier, the delegate informed them of the issue in March 2012, he has had opportunities to sit further IELTS tests since his application to the Tribunal and that the Tribunal was willing to wait for the results of both tests he had recently sat.
On 20 November 2012 the applicant’s representative wrote to the Tribunal to advise that the applicant had sought a remark by IELTS of tests he had sat on 27 October 2012 and 3 November 2012. The applicant provided evidence that in the test he sat on 27 October 2012 he scored 6.5 for listening, 4 for reading, 5.5 for writing and 6 for speaking, and in the test sat on 3 November 2012 he scored 5 for listening, 4.5 for reading, 5.5 for writing and 5 for speaking. The applicant sought further time to provide the Tribunal with the results of the remark application. The Tribunal agreed to wait until close of business 31 December 2012 to receive any further evidence before making its decision.
On 31 December 2012 the applicant’s representative wrote to the Tribunal to advise that the applicant had not achieved the requisite scores in IELTS tests to demonstrate competent English.
The Tribunal held that reg 1.15C(a)(i) had not been satisfied by Mr Savsani. At [28] the Tribunal said:
There is no evidence before the Tribunal to suggest that at the time of the application or at the time of decision, the applicant had achieved a score of at least ‘B’ in each of the four components of an Occupational English Language test conducted not more than 2 years before the day on which the application was made, which is the score and the language test specified by the Minister in writing. The Tribunal is not satisfied that the applicant meets r 1.15C(a)(ii).
Mr Savsani sought judicial review of the Tribunal’s decision before the Court below. The application was prepared without the assistance of a lawyer. It did not identify any jurisdictional error. It complained about the Tribunal failing to allow Mr Savsani further time to re-sit his IELTS examination, notwithstanding the extensions provided by the Tribunal and referred to at [22] of its reasons for decision.
The first appellant represented the appellants in the court below. At a directions hearing before the application was heard, Judge Emmett informed the first appellant of the requirement for him to identify a jurisdictional error in the reasons of the Tribunal. Her Honour afforded Mr Savsani the opportunity to file an amended application referring to any such alleged error. No such document was filed. Mr Savsani did not seek to advance any submission concerning any such jurisdictional error at the hearing below. The judicial review application was rejected by her Honour.
The grounds of appeal in this matter re-agitate the issue of the Tribunal failing to grant a further extension. This, as explained by Judge Emmett, does not reveal a jurisdictional error. It does not contradict the proposition that r 1.15C(i)(c) was not complied with at the time of the Tribunal’s decision.
As before the Court below, Mr Savsani did not seek to advance any claims of jurisdictional error in the Tribunal’s decision. He also did not seek to submit that the judgment of her Honour below involved appealable error. The appeal must be dismissed, with costs.
The first appellant applied for the appeal to be adjourned. He did not provide any evidence to support his application. He gave no indication as to when any such evidence may be provided in the future. The adjourned application was rejected.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 13 May 2014
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