Singh & Anor v Minister for Immigration & Anor

The applicants, Mr and Mrs Singh, sought judicial review in the Federal Circuit Court of Australia of a decision by the Migration Review Tribunal (Tribunal) which affirmed the delegate of the Minister for Immigration's refusal to grant them a Skilled (Residence)(Class VB) visa. The core of the dispute concerned the validity of certain regulations and instruments made under the *Migration Act 1958* (Cth) and whether the Tribunal had made a jurisdictional error in its decision.

The court was required to determine whether it had jurisdiction to consider the validity of regulation 1.15C of the *Migration Regulations 1994* (Cth) and an instrument made purportedly pursuant to that regulation. Further, the court had to consider whether regulation 1.15C was valid, specifically whether it was authorised by section 504 of the Act, whether it was uncertain in its prescription of an IELTS test score, and whether it was irrational in allowing competence in English to be demonstrated by reference to the country of issue of a visa applicant's passport. The court also had to determine if an instrument made under regulation 1.15C was invalid, and if so, whether this invalidity affected the validity of the regulation itself. Finally, the court considered whether the Tribunal acted unreasonably in refusing the applicants' request for further time to undertake an IELTS test and provide the results.

Justice Manousaridis held that the Federal Circuit Court did have jurisdiction to determine the validity of regulation 1.15C and the instrument made pursuant to it, as these issues were relevant to whether the Tribunal had made a jurisdictional error. The court found that section 504 of the Act did authorise the making of a regulation that conferred a discretion to specify by instrument a score under an English language test in addition to the prescribed IELTS test. However, the court determined that regulation 1.15C was uncertain to the extent it prescribed a score in an IELTS test and was irrational in permitting English competence to be demonstrated by reference to passport country of issue. Consequently, the court found the instrument made pursuant to regulation 1.15C to be invalid. Despite the invalidity of the instrument, the court found that regulation 1.15C itself remained valid. The court also found no jurisdictional error in the Tribunal's refusal to grant further time for the IELTS test.