Islam v Minister for Immigration and Citizenship [2026] FedCFamC2G 212

1. By application, filed on 22 February 2023, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 2 February 2023. The Tribunal affirmed the decision of a delegate (the delegate) of the First Respondent (Minister) to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa (the visa) under

s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant is a citizen of Bangladesh. The applicant first travelled to Australia as the holder of a student visa. He completed a Certificate IV in Hospitality (Commercial Cookery) at the Holmes Institute in March 2012. He has been working as a Cook in Australia since May 2010.
2. On 11 February 2020, the applicant applied for the visa. In his visa application, in response to the question 'Has the applicant studied in a secondary and/or tertiary institution where the instruction was in English?' the applicant answered 'Yes'. In response to the question 'Has the applicant undertaken an English test in the last 36 months?' the applicant answered 'No'.
3. On 14 February 2020, the delegate refused the visa application on the basis it was not satisfied the applicant met the English language requirement in cl 186.222 of the Migration Regulations 1994 (Cth) (the Regulations).
4. On 4 March 2020, the applicant applied to the Tribunal for review of the delegate's decision.
5. On 22 November 2022, the applicant appeared at a hearing before the Tribunal to present and give arguments while assisted by his representative. The hearing was adjourned part heard.
6. On 16 November 2022, the applicant provided a Pearson Test of English (PTE) test score result dated 23 June 2022 to the Tribunal.
7. On 22 December 2022, the Tribunal hearing was resumed.
8. On 2 February 2023, the Tribunal affirmed the delegate's decision.

1. The issue before the Tribunal was whether the applicant met the English language requirement pursuant to cl 186.222 of the Regulations.
2. At [13], the Tribunal noted the requirement that the applicant had to meet a standard of 'competent English'. The Tribunal identified the definition of competent English as provided by reg 1.15C of the Regulations: at [14].
3. At [17], the Tribunal noted the prescribed tests and minimum scores, or specific passports, required to meet the standard of 'competent English' as set out in the relevant instrument: IMMI 15/005.
4. At [21], the Tribunal noted at the hearing, the applicant provided evidence he undertook a PTE English test on 23 June 2022; however, it noted he did not achieve a minimum required score pursuant to IMMI 15/005.
5. At [22], the Tribunal noted the applicant's passport was from Bangladesh and therefore it was not a specified passport from an English speaking country that satisfied the requirement of 'competent English'.
6. At [24], the Tribunal noted it advised the applicant pursuant to s 359AA of the Act, that he did not appear to meet the requirement of competent English or the requirements for a relevant exemption at the time of his visa application.
7. At [25], the Tribunal noted the applicant requested a brief adjournment which was granted; following which the applicant gave evidence he was too busy to undertake an International English Language Testing System (IELTS) test.
8. At [27], the Tribunal noted the applicant's representative submitted that because an English language test result could be provided after the visa application had been lodged, it should follow that an English language test could be undertaken after lodging the visa application. However, the Tribunal found that submission to be inconsistent with the requirements prescribed by reg 1.15C of the Regulations.
9. At [30]-[32], the Tribunal noted it had considered cl 186.222 which provided that an applicant must have competent English 'at the time of visa application':

186.222 At the time of application, the applicant; (emphasis added).

(a) had competent English; or

(b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

1. At [38]-[39], the Tribunal refused to adjourn the proceedings until the end of January 2023, when the applicant would receive the results of another English test, as requested by the applicant's representative; however, the Tribunal provided the applicant until 6 January 2023 to provide a further response.
2. At [40], the Tribunal noted no further correspondence or evidence was provided by the applicant or his legal representative.
3. At [45], the Tribunal noted the applicant had not provided any evidence that would raise any of the criteria listed in the Ministerial Guidelines and found it could not refer the matter for ministerial intervention.
4. At [48]-[50], the Tribunal concluded the applicant did not meet the English language requirements pursuant to cl 186.222 and as such affirmed the decision of the delegate.

1. The originating application was filed on 22 February 2023 advancing two grounds of review, alongside an affidavit annexing the Tribunal's decision.
2. The applicant did not file written submissions. The Minister's written submissions were filed on 21 January 2026.
3. The parties appeared at a hearing on 3 February 2026 at the Parramatta Registry of the Court.
4. At the hearing, the Court Book, filed by the Minister on 10 July 2023, was tendered into evidence and marked Exhibit CB.
5. The applicant appeared in person. The Minister was represented by Mr J Herschderfer.
6. Being mindful that the applicant was unrepresented, the Court explained to him how the hearing would proceed and the matters that would normally be considered by the Court, when determining an application for judicial review.

1. The grounds of review (without alteration) are:
   1. The tribunal has denied the procedural fairness by failing to give me opportunities to provide my latest English test report.
   2. The tribunal has denied natural justice by failing to give me opportunities to comment on adverse findings.

1. By Ground One, the applicant contends the Tribunal denied the applicant procedural fairness by refusing to grant the applicant an adjournment until the end of January 2023 so as to enable the applicant to provide an English test result after an additional test scheduled for 13 January 2023.
2. The Court accepts, as submitted by the Minister, that the Tribunal's power to adjourn a hearing is discretionary yet must be exercised reasonably in the context of the facts and circumstances of the matter: Minister for Immigration and Citizenship v Li (2013) 249 CLR 618. It was submitted the applicant was aware from the delegate's decision of the relevance of his English language test results to the outcome of the review. While considering the adjournment request, the Tribunal was aware that an English test result that post-dated the visa application could not satisfy the requirement pursuant to reg 1.15C of the Regulations and therefore, it was not material to the Tribunal's decision: at [39].
3. The Court accepts, as submitted by the Minister, that even if the applicant had been granted an adjournment to undertake another English test; the applicant would still have failed to satisfy the requirements pursuant to reg 1.15C and cl 186.222 of the Regulations because such had to be satisfied at the time of application. It was submitted that the Tribunal additionally lacked the authority to waive the criteria provided by cl 186.222 of the Regulations.
4. In oral submissions, the Minister submitted the Tribunal did not err in its application of

cl 186.222(b) of the Regulations because the relevant instrument, IMMI 18/045, that provided an exemption to the requirement of 'competent English', for applicants who at the time of application had completed a minimum of five years of full-time study in secondary or higher education that was delivered in English, had been repealed by operation of Schedule 1 to

LIN 19/216 since November 2019. The Court accepts the Minister's submission. At the time he applied for the visa, on 11 February 2020, IMMI 18/045 was repealed and the applicant could no longer rely on the exemption previously provided in that instrument to satisfy the requirement in cl 186.222(b). 5. Given that any English language test undertaken by the applicant after the application had been made could not be relied upon to satisfy the competent English requirement, it cannot be said that the Tribunal's refusal to grant the full duration of the adjournment sought by the applicant was legally unreasonable. 6. For these reasons ground one does not establish jurisdictional error on the part of the Tribunal.

1. By Ground Two, the applicant contends the Tribunal denied the applicant procedural fairness by failing to invite the applicant to comment on adverse information, specifically that the applicant did not meet the time of application requirement provided by cl 186.222, nor meet the definition of competent English provided by IMMI 15/005, nor fall within any of the exemptions.
2. In this case, Tribunal did put its adverse appraisal of the evidence before it to the applicant at the hearing, specifically, that the applicant did not appear to meet the requirement of competent English, or any of the relevant exemptions, at the time of application and therefore, the Tribunal may affirm the decision of the delegate: at [25]. The Tribunal granted the applicant a brief adjournment and provided the applicant an opportunity to respond to the information: at [26].
3. The Tribunal's obligations with respect to s 359A of the Act only concern adverse 'information' which does not include the Tribunal's subjective appraisals, thought processes, or determinations: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549. The specific requirements for the visa, including the time of application requirement in cl 186.222, does not constitute 'information' for the purposes of s 359A: Wang & Ors v Minister for Home Affairs & Anor [2018] FCCA 3416 at [26].
4. While the Tribunal's reasons suggest a lack of understanding as to the operation of s 359A of the Act, in the circumstances of this case, this did not amount to jurisdictional error.
5. For these reasons, ground two does not establish jurisdictional error on the part of the Tribunal.

1. In addition to submissions in response to the grounds raised by the applicant in his application for judicial review, the Minister submitted it would be futile for the Court to grant the relief sought by the applicant on the basis that 'no useful result could ensue' if the matter was remitted to the Tribunal for reconsideration: R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400; cited with approval in Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [56].
2. As submitted by the Minister, for the applicant to satisfy cl 186.222 of the Regulations, the applicant was required to have undertaken an English test which demonstrated that he had competent English within the three years immediately before the day on which the visa application was made.
3. The Tribunal was therefore correct to find that any subsequent test result achieved by the applicant, after lodgement of the visa application, could not satisfy cl 186.222 of the Regulations. Furthermore, the Tribunal had no power to waive the English language requirement.
4. In the circumstances, even if jurisdictional error could be demonstrated, the Court would not exercise its discretion to grant the relief sought as any remittal to the Tribunal would be futile given the applicant would not be able to satisfy cl 186.222 of the Regulations for the grant of the visa.

1. As none of the grounds raised by the applicant establish jurisdictional error, the application for judicial review must be dismissed.
2. The Court notes that the Tribunal declined to refer to the applicant's matter to the Minister for consideration under s 351 of the Act because the Tribunal was not satisfied that the applicant's circumstances came within the Minister's guidelines for referral.
3. At the hearing before me, the applicant appeared quite emotional and distressed at the prospect of having to return to his home country after being in Australia for over 16 years. The applicant informed the Court that during his residence in Australia he completed studies in commercial cookery and was sponsored by his nominating employer in the occupation of Cook, initially on the Temporary Work (Skilled) (subclass 457) visa, and subsequently for the permanent residence Employer Nomination Scheme (subclass 186) visa under the temporary residence transition stream. The applicant explained that at the time he held the subclass 457 visa, the English language level for applicants seeking to satisfy the requirements for the permanent residence visa was 'vocational English', which was a slightly lower level of English than that of 'competent English', and there was also an exemption available for applicants who had studied in English for a minimum of five years. The applicant said he was caught out by the legislative changes and by the time he had completed the required period of employment to qualify for the permanent residence visa, he could no longer rely on his 'vocational English' test results or the period of study in English exemption.
4. I have some sympathy for the applicant. He has lived and worked in Australia for over 16 years, during which he completed a qualification from an Australian institution and has been consistently employed in the occupation of Cook. While many other applicants were likely also caught out by the legislative changes described by the applicant; I note that the applicant has resided in Australia for a long time, during which he has established strong economic and social ties, and has contributed to Australia through his employment.
5. The applicant indicated that he would like to apply for a further work visa in Australia, however, it appears that he may be prevented from applying for any further work visas due to the refusal of the employer nomination visa. He indicated that his current employer was willing to sponsor him.
6. While s 351 of the Act does not place any obligation on the Minister to intervene in the applicant's case, the Minister may wish to consider whether it would be in the public interest to permit the applicant to apply for a further work visa onshore so that he can maintain his employment with his current employer in Australia.

1. At the hearing, the Minister sought an order that the applicant pay their costs fixed in the amount of $5,600.00. No submissions of substance were made by the applicant in response to the Minister's application for costs. There is no reason costs should not follow the event. Further, having regard to the work undertaken and the scale costs for a standard migration matter, I will order that the applicant pay the amount sought by the Minister.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.