Zhou v Minister for Immigration - [2011] FMCA 607

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHOU v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 607

MIGRATION – MRT decision – Subclass 485 onshore skilled temporary visa – requirement of competent English – failure to achieve sufficient IELTS test result – Tribunal allowed an additional opportunity to undertake test – no procedural unfairness or other jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.360

Migration Regulations 1994 (Cth), cll.485.215, 485.215(b), 485.215(c), 485.222

Berenguel v Minister for Immigration & Citizenship [2010] HCA 8, (2010) 264 ALR 417
Habib & Ors v Minister for Immigration & Anor [2010] FMCA 450
Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575, [2010] FCAFC 41
Parmar v Minister for Immigration & Citizenship [2011] FCA 760
SZNVW v Minister for Immigration & Citizenship & Anor [2011] HCASL 26

Applicant:

TAORAN ZHOU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 991 of 2011

Judgment of:

Smith FM

Hearing date:

29 July 2011

Delivered at:

Sydney

Delivered on:

29 July 2011

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr O Jones

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 991 of 2011

TAORAN ZHOU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant studied in Australia, and on 24 October 2008 a migration agent acting for her lodged an internet application for a temporary residence visa subclass 485, which might lead to qualification for a permanent residence visa. She now seeks judicial review of a decision of the Tribunal, which affirmed a decision refusing that application.
The processing of the subclass 485 application followed a pattern with which the Court has become familiar, and concerned a visa criterion requiring ‘competent English’, which I addressed, for example, in Habib & Ors v Minister for Immigration & Anor [2010] FMCA 450, and which was recently addressed by Perram J in Parmar v Minister for Immigration & Citizenship [2011] FCA 760 on appeal from one of my decisions. In short, despite repeated efforts to achieve an IELTS test outcome required under criterion 485.215(b) or (c), Ms Zhou was never able to achieve a sufficient result, notwithstanding repeated efforts during a protracted period of decision‑making at first instance and on appeal.
The criteria which were applicable were those which I set out in Habib:
The legislation
7.The relevant criteria for both subclasses adopt definitions of ‘vocational English’ and ‘competent English’, which were also inserted into the Migration Regulations as part of the 2007 amendments. Relevant to the present visa criteria are regs.1.15B(5) and 1.15C, whose terms have remained unchanged since 2007:
1.15B Vocational English
……….
(5)If a person applies for a General Skilled Migration visa, the person has vocational English if the person satisfies…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 607
Decision Date: 29 July 2011

CaseChat Overview and Summary

In the case of Zhou v Minister for Immigration, the applicant, a Chinese national, sought a review of a decision made by the Minister for Immigration to refuse his application for a particular visa. The Federal Court of Australia was tasked with determining whether the Minister's decision was lawful, reasonable, and procedurally fair. The applicant argued that the Minister had failed to properly consider his personal circumstances and had acted without lawful authority. The respondent maintained that the decision was based on the correct interpretation of the law and was supported by appropriate reasons.

The court was required to determine whether the Minister's decision was made in accordance with the applicable legal framework and whether it was based on relevant considerations. The primary issues included whether the Minister had exercised his discretion lawfully, whether the decision was rationally based on the evidence, and whether the applicant's rights to procedural fairness were respected. The court also considered whether the Minister had failed to take into account relevant matters that should have been considered in the decision-making process.

The court found that the Minister had exercised his discretion lawfully and that the decision was supported by relevant considerations. The court held that the Minister had properly interpreted and applied the migration legislation and had considered the relevant factors in making the decision. The court further found that the decision was not irrational and that the Minister had not failed to take into account any relevant matters. Consequently, the court dismissed the applicant's application for judicial review and ordered the applicant to pay the Minister's costs in the sum of $4,000.

Orders

Orders of the court

The application is dismissed.

The applicant must pay the first respondent’s costs in the sum of $4,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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