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austlii:cth/FedCFamC2G/2025/1353
General information, not legal advice.
FedCFamC2G
2025-08-25
Original judgment source is linked above.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik.
[1] Unless otherwise specified or the content otherwise requires, any reference to the Act is a reference to the Act as it was then in force.
[2] Unless otherwise specified or the content otherwise requires, any reference to the Regulations is a reference to the Regulations as it was then in force.
Kalusayakkarage
Minister for Immigration and Citizenship [2025] FedCFamC2G 1353
Particulars
- Clause 485.212 required that the "application be accompanied by evidence that the Applicant "has undertaken a language test specified by the Minister" and "has achieved, within the period specified by the Minister" a score also specified by the Minister;
- The instrument making the specifications under cl 485.212 was IMMI 15/062;
- Clause 3 of IMMI 15/062 specified, for the IELTS test, a minimum overall score of 6 and a minimum score of 5 for each component of the IELTS test;
- Clause 4 of IMMI 15/062 specified that the test must have been completed within the three years before the day on which the application was made;
- The Applicant made her application on 7 August 2019;
- The Applicant completed an IELTS test on 4 March 2017, within the timeframe and to the standard required by IMMI 15/062;
- However, the Applicant's application was not "accompanied by evidence" of the IELTS test, with such evidence instead being provided to the Tribunal on 5 October 2019;
- The Tribunal therefore held, at paragraph 14 of its decision, that cl 485.212 was not satisfied, with the result that the Applicant could not be granted the visa;
- Delegated legislation, including cl 485.212, may be reviewed by the courts for legal unreasonableness or lack of proportionality: Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; (2013) 249 CLR 1 at [48], [51] and [58] per French CJ;
- There are perfectly proper reasons for requiring, as does cl 4 of IMMI 15/062, the IELTS test to have been completed before the day on which the application was made: Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [16]- [17] per Tracey, Charlesworth and Derrington JJ;
- However, there is no relevant justification for, or proportionality in, requiring the evidence of having undertaken the test to the required standard and at the relevant time to accompany the application for the visa. It is legally unreasonable or disproportionate to require, as in the present case, the decision-maker to close his or her eyes to a clear satisfaction of IMMI 15/062;
- Clause 485.212 is, to the extent it contains the words "[t]he application was accompanied by evidence that". Those words ought to be severed and the matter remitted to the Tribunal for the valid balance of cl 485.212 to be applied by the Tribunal in relation to the Applicant.
(2013) 249 CLR 1