Singh v Minister for Immigration and Border Protection

The plaintiff, Mr Singh, sought orders of certiorari and mandamus from the High Court of Australia to quash a decision of Justice Gordon of the Federal Court and to compel the Minister for Immigration and Border Protection to reassess his visa application. Mr Singh had applied for a Skilled (Provisional) (Class VC) Subclass 485 visa, which was refused by a delegate of the Minister on the grounds that he did not possess competent English. This decision was affirmed by the Migration Review Tribunal, and an application for judicial review to the Federal Circuit Court was dismissed. Subsequently, an application for leave to appeal to the Federal Court was refused by Justice Gordon, who determined there would be no utility in the matter proceeding.

The central legal issue before the High Court was whether the decisions of the Federal Circuit Court and the Federal Court constituted jurisdictional error, thereby warranting the grant of certiorari and mandamus. The plaintiff contended that the Migration Review Tribunal had applied the incorrect legislative instrument when assessing his English competency, and that the lower courts had erred in failing to identify this error. Specifically, the plaintiff argued that the Tribunal referred to IMMI 09/703 when the applicable instrument was IMMI 12/018, leading to a jurisdictional error in the assessment of his visa eligibility.

The High Court, in dismissing the application, reasoned that while Justice Gordon had correctly identified that both the Tribunal and the Federal Circuit Court had referred to the incorrect legislative instrument, this did not amount to a jurisdictional error. The Court applied the principle of *falsa demonstratio non nocet cum de corpore constat*, meaning a false description does not harm when the body is clear. Despite the incorrect reference to the instrument, the substance of the law applied by the Tribunal remained the same under both IMMI 09/703 and IMMI 12/018. Both instruments required the applicant to demonstrate competent English, which was defined by regulation 1.15C. The plaintiff did not satisfy the English competency requirements under the correct definition, and it was not contended that he could. Therefore, the error identified was not a jurisdictional error, and the conclusion of Justice Gordon that there would be no utility in proceeding with an appeal was upheld. The application was dismissed with costs.