Sumon v Minister for Immigration

This matter concerned an application for review of a decision made by the Migration Review Tribunal. The applicant, Mr. Sumon, sought to challenge the Tribunal's finding regarding his English language proficiency. The central dispute revolved around the interpretation and application of regulation 1.15C of the Migration Regulations 1994 (Cth) and the legislative instruments made thereunder, specifically concerning the definition of "competent English." The case was heard in the Federal Court of Australia before Judge Manousaridis.

The court was required to determine several legal issues. Firstly, whether the Migration Review Tribunal incorrectly assumed that the definition of "competent English" in regulation 1.15C was exhaustive. Secondly, whether an instrument made under regulation 1.15C, which nominated a non-existent language test and score, rendered the regulation itself invalid. Finally, the court considered whether the Tribunal acted unreasonably in refusing the applicant further time to sit an IELTS test, and if this constituted jurisdictional error.

In addressing the first ground, the court applied the reasoning from *Nayyar v Minister for Immigration and Border Protection*, finding that while the Tribunal may have referred to an incorrect legislative instrument (IMMI 09/073 instead of the applicable IMMI 12/018), this error did not go to jurisdiction. The court noted that the Tribunal still asked itself the correct question, as the requirement for "competent English" remained the same across the instruments, with the specified scores and tests being substantially similar. Regarding the validity of the instrument, the court held that even if IMMI 12/018 were found to be invalid, regulation 1.15C itself was not rendered invalid. This was because the regulation permits, but does not oblige, the Minister to specify additional tests and scores, and it unambiguously specifies at least one method for demonstrating competent English, namely achieving the scores specified in regulation 1.15C(a)(i) under an IELTS test. Consequently, the court found no jurisdictional error in the Tribunal's refusal to grant further time for the applicant to sit an IELTS test.