Shubha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

This matter concerned an appeal by the applicants, citizens of Bangladesh, against a decision of the Administrative Appeals Tribunal affirming the refusal to grant them Skilled (Residence) (Class VB) visas. The primary applicant, Mr Shubha, had applied for the visa with his family members included. The delegate refused the visas because Mr Shubha had not provided evidence of competent English, as required by the Migration Regulations 1994 (Cth).

The central legal issue before the court was whether the Tribunal had erred in finding that Mr Shubha did not satisfy the requirements for competent English under regulation 1.15C of the Migration Regulations 1994. Specifically, the court had to consider whether the Tribunal correctly applied the relevant provisions and instruments in determining whether Mr Shubha met the criteria for competent English, either through a specified language test or by holding a particular type of passport.

The Tribunal had found that Mr Shubha did not meet the passport criterion under regulation 1.15C(b). Consequently, it considered whether he met the language test criterion under regulation 1.15C(a). The Tribunal noted a potential mismatch between the applicable instrument (IMMI 15/005) and the Regulations for applications made before 1 July 2012, but found that the references should be interpreted as referring to the relevant provisions. The Tribunal found that Mr Shubha's evidence of an IELTS test taken in 2009 did not meet the required scores for competent English, and he acknowledged at the hearing that he lacked evidence of competent English. The Tribunal was therefore not satisfied that Mr Shubha had competent English as defined by regulation 1.15C(a), and thus did not satisfy the visa requirement. The applicants' grounds of appeal included claims of being misled by a migration agent, having different test results, and asserting the judgment was unfair.