Kaur v Minister for Immigration and Border Protection

1. The appeal is dismissed.
2. The appellants are to pay the first respondent's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CHARLESWORTH J: 1 This appeal was heard and determined in the appellants' absence on 9 November 2018. Reasons for judgment were given orally on that day. This is a record of those reasons. 2 The two appellants are citizens of India. They are husband and wife. On 15 March 2017, the first appellant, Ms Hardepp Kaur, applied for a Temporary Graduate (Class VC) Temporary Graduate (Post-study Work) (subclass 485) visa under the Migration Act 1958 (Cth), naming the second appellant, Mr Raj Kumar, as a dependent. A delegate of the then-titled Minister for Immigration and Border Protection refused to grant the visas. That decision was affirmed on review by the Administrative Appeals Tribunal. The Federal Circuit Court of Australia dismissed an application for judicial review of the delegate's decision: Kaur & Anor v Minister for Immigration & Another [2018] FCCA 1657. This is an appeal from that judgment. 3 Mr Kumar's success on this appeal is wholly dependent on Ms Kaur succeeding. It is, therefore, appropriate to determine the appeal by reference to the merits of Ms Kaur's position. 4 Section 31 of the Act provides that there are to be prescribed classes of visa and that the regulations may prescribe the criteria for a visa or visas of a particular class. Section 65 of the Act provides that if the Minister is satisfied that a visa applicant satisfies the criteria for the grant of a visa, the Minister must grant the visa. 5 Conversely if the Minister is not so satisfied, the application for the visa must be refused. 6 A criterion for the grant of the visa to Ms Kaur is that specified in cl 485.212 of Sch 2 to the Migration Regulations 1994 (Cth). At the relevant time, it provided: 485.212 The application was accompanied by evidence that: (a) the applicant: (i) has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and (ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or (b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph. 7 Ms Kaur does not hold a passport of a type specified by the Minister for the purposes of cl 485.212(b). Accordingly, the visa application turned on Ms Kaur's satisfaction with the criteria specified in cl 485.212(a). The relevant instrument for the purposes of that clause was IMMI 15/062 titled "Specification of English Language Tests, Scores and Passports". Paragraph 3 of the instrument specified a requirement that Ms Kaur achieve a minimum overall score of 50 in a test known as Pearson Test of English Academic (PTE Academic). 8 The collective effect of cl 485.212(a) and the instrument was that it was necessary that the visa application be "accompanied by" evidence that the applicant had passed the PTE Academic test in the period of 36 months prior to the visa application being made. The visa application in this case was made on 15 March 2017. Ms Kaur's visa application was accompanied by evidence indicating that she had undertaken the PTE Academic test on 2 September 2016 with an overall score of 43. As the minimum overall score for the test specified in the instrument was 50, the delegate refused to grant either appellant a visa. The delegate was not satisfied that Ms Kaur satisfied the criterion prescribed in cl 485.212(a). 9 In the proceedings before the Tribunal, Ms Kaur provided evidence that she had undertaken a PTE Academic test on 23 August 2017 and that she had achieved an overall score of 58 on that occasion. The Tribunal concluded that although Ms Kaur had achieved a pass in that test, that circumstance did not meet the requirements of cl 485.212(a) because the test had not been undertaken within 36 months prior to the visa application being made. The Tribunal said that it had "no power to waive the requirement or any discretion in this matter". 10 In the proceedings before the primary judge, the onus was on the appellants to show that the Tribunal's decision was affected by jurisdictional error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). 11 The appellant relied on five grounds of review, each of which was rejected by the primary judge. The asserted jurisdictional errors are now broadly repeated in the six grounds of appeal before this Court. For the reasons that follow, the Tribunal did not commit jurisdictional error in the manner contended for. The primary judge did not err in rejecting the same arguments and so, accordingly, this appeal must be dismissed.