Barunphan v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 490

1. These orders have been amended pursuant to r 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) on 25 March 2025.

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. This written statement of reasons is derived from the transcript of reasons given orally at the conclusion of the hearing.
2. This is an application for judicial review that relates to a decision of the Administrative Appeals Tribunal on 14 July 2020 to affirm a decision of a delegate of the first respondent (the minister). The delegate had decided to refuse the first applicant's application for a Student (subclass 500) visa and the second applicant's dependent spouse visa.
3. The Tribunal's decision turned on whether the first applicant, Ms Pawanrat, was able to satisfy the English language proficiency requirements that are imposed pursuant to cl 500.213 in sch 2 to the Migration Regulations 1994 (Cth). The relevant provision requires compliance with standards set out in an instrument. The instrument is known as the Migration IMMI 18/015 English Language Tests and Evidence Exemptions for subclass 500 student visas Instrument of 2018. The instrument is prescriptive: it requires the applicant to have completed one of several identified tests and achieved a certain minimum score.
4. An applicant is required to provide evidence that he or she satisfies the relevant standards with evidence in the appropriate form. There are exceptions to the rules but a person claiming to fit within one of the exempted classes must present evidence of that fact.
5. The first applicant had provided the delegate with a certificate of achievement following completion of a course at Astley College, but that was not one of the recognised tests in the instrument.
6. During the Tribunal's review process, the first applicant was invited to supply further information about her English language proficiency. She and her husband were also invited to attend a hearing before the Tribunal. In advance of the hearing, the first applicant provided her International English Language Testing System (IELTS) test results. Those results confirmed the applicant achieved an overall band score of 4.
7. IELTS results are recognised under the instrument (unlike the outcome from Astley College) but the schedule to the instrument requires an overall band score of 5.5, or 4.5 in some circumstances. The Tribunal concluded the first applicant did not meet the minimum IELTS score. There was no suggestion the first applicant was able to take advantage of an exemption from those requirements. On that basis, the first applicant was found not to meet the requirements.
8. The Tribunal affirmed the decision with respect to the first applicant. The Tribunal did not discuss the position of the second applicant in its reasons. That was unfortunate, but the outcome of the decision in relation to the first applicant is determinative in the absence of some other consideration being introduced - and that did not occur.

1. The applicants filed an application for judicial review on 20 August 2020. The applicant identified two grounds of review, but neither of those grounds was a valid ground.[1]
2. I explained to the applicants at the start of the hearing today that the Court's only basis for intervening in a decision of the Tribunal was where it identified jurisdictional error. I explained the concept of jurisdictional error to them at the hearing.
3. Notwithstanding the shortcomings in the grounds of review in the application, I gave both applicants an opportunity to explain in their own words their criticisms of the decision in order to determine if there was any jurisdictional error.
4. The first applicant accepted she did not meet the proficiency requirements and that her IELTS score did not meet the minimum specified in the instrument. She said she was hoping to meet the requirements with further study, but the Tribunal's decision was made before that could occur.
5. While I have sympathy for the first applicant, there is no scope for me to intervene in her case. The Tribunal followed the appropriate procedural requirements: it invited the applicants to supply further information in support of their case, it made clear in advance of the hearing that English language proficiency was the issue, and it gave the parties an opportunity to be heard at the hearing. It applied the law correctly and reached the only conclusion it could on the evidence before it. There is no jurisdictional error in respect of the first applicant.
6. The Tribunal's reasons in relation to the second applicant did not explain why he was unable to succeed, but there is no doubt as to the outcome of his application for a visa in the absence of anything further. I should add that if I thought the reasons were formally deficient in respect of the second applicant, there would be no point in remitting the decision for further consideration because the second applicant could not succeed in circumstances where his wife's visa was refused.
7. It follows that the application for judicial review by both applicants must therefore fail and the application must be dismissed.
8. That leaves only the question of costs. The minister has asked for costs in the fixed amount of $5,400. I am told that amount approximates what has been incurred on the file; if the costs are not met through an award of costs, they will necessarily be met out of public monies. The applicants are worried about the impact of an award of costs on their limited financial resources. They have a young child.
9. Once again, I have sympathy for this young family but an inability to pay is not ordinarily a reason not to make an order with respect to costs. Whether orders as to costs are enforced is a matter for the Minister. I am satisfied that an award of costs should be made in favour of the minister in the fixed amount of $5,400.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.

[1] The grounds set out in the application read as follows:

1. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

2. DOHA's decision to refuse the application by the applicant for a Student visa.