Ranabhat v Minister for Immigration and Citizenship [2025] FCA 880

(a) the issue of costs; and

(b) the issue of whether any other order under s 486F of the Act should be made.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. Mr Santosh Ranabhat and Ms Sharmila KC (the Appellants) seek to appeal a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) delivered on 22 October 2024: Ranabhat v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1077 (Ranabhat (FCFCOA)). In that decision, the primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) by which the Tribunal had affirmed, on 30 January 2024, a decision of the first respondent (the Minister) to refuse Mr Ranabhat's application for an Employer Nomination (Permanent) (Class EN) visa.
2. The Appellants filed a notice of appeal vis-à-vis Ranabhat (FCFCOA) on 12 November 2024. In the usual course, a Registrar of this Court subsequently made case management orders for the purposes of ensuring the matter was ready to be heard and determined in the current appeal period. In particular, orders were made for the filing of outlines of submissions for the appeal. The Appellants did not comply with those orders. Indeed, to a large extent, they have failed to take any active part in the preparation of their appeal. Nevertheless, Mr Ranabhat appeared to represent the interests of the Appellants at the hearing of the matter on 30 July 2025.

The Visa Application and the Delegate's Decision

1. The Appellants are citizens of Nepal. They are, relevantly, husband and wife.
2. On 15 March 2022, Mr Ranabhat lodged an application for a Permanent Employer Sponsored or Nominated (subclass 186) Visa (the Visa Application). The Visa Application, amongst other things, identified the second appellant as being a member of Mr Ranabhat's "family unit" and a Ms Bonnie Thurecht as the Appellants' registered migration agent and "authorised recipient".
3. A Pearson Test of English (PTE) Academic score report for a test undertaken by Mr Ranabhat on 9 March 2022 was submitted in support of the Visa Application. That report indicated that Mr Ranabhat had achieved an Overall Score of 51, which was an aggregate of scores achieved across four Communicative Skills: (a) Listening - 53; (b) Reading - 49; (c) Speaking - 50; and (d) Writing - 50.
4. On 6 March 2023, the Department of Home Affairs (the Department) wrote to Mr Ranabhat. In short, the Department requested that Mr Ranabhat provide additional information in support of the Visa Application, including evidence of "competent English language ability". Amongst other things, that correspondence included a "Request Checklist and Details". That form noted:

□ Evidence of competent English language ability

You have provided a PTE English test score, however you do not meet the relevant band for the reading component. Results of a Pearson Test of English (PTE) Academic conducted in the three years immediately before the day on which you lodged your visa application, in which you obtained a test score of at least 50 in each of the four test components.

The English test results must have been conducted in the three years before the visa application was lodged. If you have evidence of another English test score conducted prior to lodgement, provide the test results. If you do not have evidence of this, you will not meet the English requirement.

1. A delegate of the Minister for Home Affairs dismissed the Visa Application on 4 April 2023 (the Delegate's Decision). This was because Mr Ranabhat had failed to provide evidence he satisfied cl 186.232 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

Review of the Delegate's Decision by the Tribunal

1. On 8 April 2023, the Appellants lodged an application for review of the Delegate's Decision with the Tribunal. In the ordinary course, they were invited to attend a hearing to give evidence and present arguments before the Tribunal. That hearing was scheduled for 30 January 2024.
2. In correspondence sent to the Tribunal on 29 January 2024, Ms Thurecht noted the Appellants would attend the hearing and provided a completed "response to hearing invitation" form. The hearing occurred the following day, at which Mr Ranabhat gave evidence and made arguments.
3. The Tribunal affirmed the Delegate's Decision on 30 January 2024.
4. In the circumstances, it is not surprising that the Tribunal's reasons for doing so were relatively short. The Statement of Decision and Reasons of the Tribunal Member first acknowledged:

The applicants applied for the visas on 15 March 2022. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. ...

The delegate refused to grant the visas because the applicant did not meet cl 186.232 of Schedule 2 to the Regulations because the applicant did not satisfy the English language requirement where he was required to have competent English.

1. The Tribunal Member proceeded to dismiss the Appellants' application for review as follows:

The issue in the present case is whether the applicant has competent English and otherwise satisfies clause 186.232.

English language proficiency

At the time the visa application is made, an applicant in the Direct Entry stream must either have competent English, or be in a class of persons specified in legislative instrument LIN 19/216: cl 186.232.

'Competent English' is defined in reg 1.15C of the Regulations. A person will have competent English if he or she either:

• undertook a specified language test in the three years preceding the visa application and achieved a specified score; or
• holds a specified passport.

The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.

...

The applicant sat for a PTE Academic test on 9 March 2022 in anticipation of his Visa lodgement which was made on 15 March 2022. The applicant scored for Listening 53; for Reading 49; for Speaking 50 and for Writing 50. The score he needed to obtain was 50 in each category. 50 and each of the 4 categories.

The applicant did not hold a passport allowing him not to provide a competent English assessment as prescribed by the relevant statutory instrument. Therefore, he must have competent English or otherwise not succeed in satisfying the English requirement under Subclass 186.

...

Therefore, cl 186.232 is not met.

1. In short, the Tribunal Member identified that the Regulations required Mr Ranabhat to have achieved a score of 50 in each of the listening, reading, speaking and writing PTE proficiencies between 15 March 2019 and 15 March 2022. He had not done so. Therefore, he did not have "competent English" and could not satisfy the conditions for the grant of the visa that he sought.
2. In the result, the Tribunal affirmed the Delegate's Decision in relation to Mr Ranabhat. In turn, it was also required to affirm that decision in relation to the second appellant because she was a member of the "family unit" of a person who had not met the primary criteria for the visa.
3. The Appellants were notified of the decision of the Tribunal on 1 February 2024.

Judicial Review of the Tribunal's Decision in the FCFCOA

1. On 29 February 2024, the Appellants filed an application for judicial review in the FCFCOA. That application was heard on 14 October 2024. It was dismissed (with costs) eight days later.
2. The reasons of the learned primary judge are set out in Ranabhat (FCFCOA). Those reasons traverse, in careful detail, both the background to the matter and the decision of the Tribunal: at [2] - [15]: as well as the (four) grounds of review raised by the Appellants: at [16] - [54].

Ground 1: Unreasonableness and failure to account for personal circumstances

1. Her Honour found that, in order to succeed upon the application, Mr Ranabhat needed to satisfy cl 186.232 of Schedule 2 of the Regulations. It was clear he had not met the competent English language requirement imposed by cl 186.232(a) in the three years prior to 12 March 2022; thus, the Tribunal had not erred in reaching such a conclusion: Ranabhat (FCFCOA) [28] - [33].
2. The primary judge found that Mr Ranabhat's reliance upon his studies in Australia to satisfy the English language requirement was misconceived. Although such a form of exemption existed under the Regulations, it was limited to a different subclass of visa: Ranabhat (FCFCOA) [34].
3. Her Honour also noted the allegation that Mr Ranabhat had been misinformed by Ms Thurecht. There was, however, no evidence to suggest that the advice of that agent constituted a fraud on the Tribunal and, ultimately, no such issue had been raised: Ranabhat (FCFCOA) [35] - [36].
4. Overall, her Honour concluded that the evidence before the Tribunal was clear and to the effect that Mr Ranabhat did not satisfy cl 186.232 of Schedule 2 of the Regulations.

Ground 2: Failure to consider evidence and relevant facts

1. The primary judge also rejected the suggestion that the Tribunal should have determined, from its own observations, and aside from the language test results, that, as at the time of the hearing, Mr Ranabhat satisfied the "competent English" requirement. Her Honour noted that whether the Tribunal considered the first appellant's English competency to be "good" was not relevant; what had to be considered was whether Mr Ranabhat had established, as at the time of the Visa Application, that the requirements in cl 186.232 had been met: Ranabhat (FCFCOA) [40].
2. In this regard, her Honour noted the first appellant's submission that, in assessing the English language competency requirement, the Tribunal should have paid regard to the "Pearson PTE Scoring Comparison". That document purported to indicate that PTE scores between the range of 46-55 were equivalent to a IELTS test score of 6 (such that, so the argument went, the score of the first appellant in the PTE "reading" proficiency (49) was equivalent to a IELTS score of "6" which, in turn, was a score that satisfied the criterion in cl 186.232 of the Schedule 2 of the Regulations). Her Honour rejected that submission on the basis that it was not ever open to the Tribunal to prognosticate as to whether, if Mr Ranabhat had undertaken some other test (i.e., the IELTS), he would have satisfied the required criteria: Ranabhat (FCFCOA) [41] - [43].

Ground 3: No opportunity to furnish new evidence and failure to consider employment

1. The primary judge noted that the Appellants sought to rely upon the results of a test that had been undertaken by the first appellant after lodging the Visa Application. Given the scope of cl 186.232 of Schedule 2 of the Regulations (and, in particular, an element of the definition of the phrase "competent English" in r 1.15C of the Regulations: "... the test was conducted in the 3 years immediately before the day on which the application was made" (emphasis added)), her Honour found that the Tribunal would have fallen into error if it had considered evidence of a test undertaken by Mr Ranabhat after 12 March 2022: Ranabhat (FCFCOA) [48]. Nor was there any error in the Tribunal failing to take into account the alleged benefits to a potential employer were he to be granted a visa; this was irrelevant to the inquiry with which the Tribunal was concerned (i.e., did Mr Ranabhat have "competent English"?): Ranabhat (FCFCOA) [50].

Ground 4: Finding illogical and not supported by the facts

1. The primary judge rejected the suggestion the Tribunal's decision was affected by illogicality. Such decision followed a proper application of the relevant legislative requirements: Ranabhat (FCFCOA) [52] - [54]: and, thus, the application was dismissed: Ranabhat (FCFCOA) [55].

1. On 12 November 2024, the Appellants filed a notice of appeal in this Court. It asserted:
   1. The Federal Circuit and Family Court of Australia has made a mistake by dismissing my judicial review appeal by determining that the Administrative Appeal Tribunal's (AAT) decision was not affected by the jurisdictional error.
   2. Having not satisfied the competent English language requirement as required by cl 186.232 of Schedule 2 of the Regulations, the Tribunal affirmed the delegate's decision, and the court dismissed by application.
   3. The court's decision was unreasonable because the Tribunal did fail to consider and understand my personal circumstances and level of English as part of assessment of visa application, subclass 186.
      1. The Tribunal neglected my claims that my migration agent advised me that my studies in Australia is sufficient to meet the English requirements for the purpose of the visa.
      2. As a visa applicant with limited legal knowledge, I relied on the expertise and advise of my migration agent and hence I shouldn't be punished for a third-party mistake or incompetencies.
      3. I was capable of taking IELTS or PTE exams and meet the requirements if my migration agent has informed to do so.
   4. The court did not give due weightage to the Tribunal's failure to consider and ignored critical evidence, or otherwise failed to rely exclusively on relevant facts and information when assessing whether I met the requirements for the visa including subclause 186.232.
      1. The Tribunal ignored the evidence that my English competency is good otherwise, except that it was not evidenced via IELTS or PTE.
      2. Me and my wife are disadvantaged because of third party mistakes but it was ignored by the Tribunal.
   5. The court did not recognise that the Tribunal failed to consider and ignored critical evidence, or otherwise failed to rely exclusively on relevant facts and information.
      1. The Tribunal failed to provide me to opportunity to address the English requirements by providing new evidence of IELTS or PTE.
      2. The Member failed to follow the Directions and consider the benefit of my employment would bring to an Australian employer as the 186 nomination was approved by the Department of Home Affairs.
2. As can be seen from the following discussion, the grounds of appeal are without merit. In the course of the appeal, Mr Ranabhat asserted the notice of appeal had been prepared by a solicitor whom he had "found" the last time that he was in Court. Specifically, the transcript records:

HIS HONOUR: Well, you didn't send any - you didn't file any submissions. The best we've got is a notice of appeal that seems to set out some grounds of appeal. Have you got that?

MR RANABHAT: Just - I think I sent that one.

HIS HONOUR: Yes. Who prepared that?

MR RANABHAT: Whatever I did myself.

HIS HONOUR: It sort of looks like - it looks like a document that's prepared by someone with some legal experience, or at least some legal training.

MR RANABHAT: Yes. One of the guys helped me with that one. Yes.

HIS HONOUR: One of the guys did that? Is that - who was the guy?

MR RANABHAT: He - I just found him in the - when I was last time in the court, I found him there. He must be a lawyer.

HIS HONOUR: You found some guy in the court and this guy, you say, sat down and helped you write these grounds of appeal?

MR RANABHAT: Yes. Yes.

...

HIS HONOUR: No, no. Well, tell me how this notice of appeal was prepared?

MR RANABHAT: I just found him over there in the court when the last time I was ..... so I just told him the scenario, this is the ..... like this one. And he told me, "I will just help you to prepare this one for the further one". So I went with him, maybe in his office here.

...

HIS HONOUR: Did you pay him money to draw up your notice of appeal?

MR RANABHAT: Yes. I submitted some money. Yes, for it.

HIS HONOUR: How much?

MR RANABHAT: $5000.

1. Whilst it would be inappropriate to name such solicitor at this juncture, there is no circumstance in which the work involved in the preparation of the notice was worth the amount said to have been charged. It is also relevant that the notice asserts that it was prepared by the first appellant and the certification required by s 486I of the Migration Act 1958 (Cth) (the Act) was left blank.
2. It should be kept steadily in mind that s 486I is to be found within Part 8B of the Act which, in general, imbues the Court with broad powers to order costs against persons, other than litigants themselves, who encourage "migration litigation" that has "no reasonable prospects of success" and do not give proper consideration to the prospect of success of the litigation or are motivated by purposes unrelated to the objectives which the court process is designed to achieve.
3. On 2 December 2024, case management orders were made by Registrar McCormick in order to expeditiously bring this matter on for hearing. They were in the usual form and required the parties to file and serve outlines of submissions. Although the Minister very properly adhered to the terms of those orders, the Appellants, again, failed to provide any such submissions.
4. It is appropriate to note that, on 18 July 2025, being less than two weeks before the scheduled hearing date of this matter, Mr Ranabhat sent an email to a Legal Case Manager of the Court. By that correspondence, he requested that the hearing be adjourned so that he could tend to his wife, who was said to be pregnant. That request was denied; however, to alleviate difficulties that Mr Ranabhat might have faced, the matter was organised to be heard over Microsoft Teams and a link was provided to allow him to attend at a convenient location. As noted, Mr Ranabhat attended the hearing over the Teams platform and made submissions in support of his appeal.
5. The following discussion will address the grounds of the Appellants' notice of appeal in turn. As will be seen, the substance of the submissions advanced by Mr Ranabhat on this application were to the effect that the primary judge had fallen into error by failing to find that the Tribunal, in its assessment of whether Mr Ranabhat had, as a matter of fact, achieved a specified "score" in a specified language test in the three years preceding the Visa Application, had failed to take into account other relevant considerations (personal circumstances, allegations of negligence, fresh evidence etc). On the arguments advanced by Mr Ranabhat, and for the reasons that follow, that view has no substance to it.

1. Grounds 1 and 2 are mere assertions of error upon the part of the FCFCOA in dismissing the Appellants' application for review. They are not sufficiently particularized to be the subject of any meaningful response by the Minister. For this reason alone, they should be dismissed: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35]. Indeed, it was accepted by Mr Ranabhat at the hearing that Grounds 1 and 2 were wholly devoid of merit.

Ground 3: The decision of the FCFCOA was "unreasonable"

1. It is alleged that the decision in Ranabhat (FCFCOA) was unreasonable because of the primary judge's finding that the Tribunal had not erred in failing to consider the personal circumstances of the Mr Ranabhat, his level of English and the (alleged) negligence of Ms Thurecht.
2. This ground is misconceived. The Tribunal did not err in finding that Mr Ranabhat had failed to meet the English language requirement defined by cl 186.232(a) of Schedule 2 to the Regulations. It is pellucid that, at the time of lodging the Visa Application, he did not meet that requirement in any of the ways permitted by the Regulations. That is the end of the matter.
3. Mr Ranabhat's claimed personal circumstances are irrelevant to that issue. He was required to have undertaken and satisfied a specified test in the three years preceding the Visa Application. He did not do so. Thus, he did not meet the statutory requirements in relation to the definition of "competent English". It followed that, as a matter of law, he was not entitled to the visa that he sought. His personal circumstances could have no possible relevance to that conclusion.
4. There was no evidence before the Tribunal as to any negligence perpetrated by the migration agent of Mr Ranabhat and, it follows, that the existence of such (or otherwise) is irrelevant to the application for review. As such, the ground of appeal which relies upon it is misconceived. In any event, the conduct of the migration agent is wholly irrelevant to the question of whether Mr Ranabhat satisfied the English competency criteria required to support his Visa Application.
5. It seemed to be suggested that some fraud had been perpetrated upon the Tribunal by reason of the alleged misstatements of the migration agent. However, there was no relevant evidence of such statements and, as noted by the primary judge, mere erroneous advice from such an agent is not necessarily sufficient to give rise to fraud on the Tribunal: Ranabhat (FCFCOA) [35].
6. No jurisdictional error is shown to exist in relation to Ground 3.

Grounds 4 and 5: No opportunity to provide new evidence (and attendant failure to consider)

1. These grounds tend to reflect grounds 2 and 3 that were advanced before the learned primary judge. In short, they are to the effect that her Honour had fallen into error by failing to conclude that the Tribunal had failed to (a) consider, or had otherwise ignored, evidence that the English competency of Mr Ranabhat was "good" and that the Appellants had been disadvantaged by a third party; and (b) provide the Appellants with an opportunity to provide fresh evidence of Mr Ranabhat's English competency or that he would be a benefit to an Australian employer.
2. In this respect, there is no error in the reasons of the primary judge. The Tribunal's statutory task was to apply the prescribed criteria to assess whether Mr Ranabhat was entitled to a visa. In doing so, it was not required to attempt to assess, independently of that criterion, whether it was of the opinion that Mr Ranabhat had a sufficient competency in the English language. It applied the statutory criteria and assessed whether he had undertaken a specified language test in the three years preceding the visa application and achieved a specified score (r 1.15C of the Regulations). The evidence before the Tribunal was clear that Mr Ranabhat did not meet that test. On that basis, there was nothing upon which Mr Ranabhat might rely to satisfy the criteria. Whether the Tribunal might have thought that, as at the time of the hearing, Mr Ranabhat had achieved some relative competency in English was irrelevant to the task it had to undertake.
3. The primary judge addressed Ground 4 by noting the submissions in relation to the allegation that the Tribunal failed to consider the Pearson PTE Scoring Comparison. This guide was said to compare a number of English language tests and provide a comparison of outcomes. It was said that if the Tribunal had applied such comparisons, it would have concluded that, although Mr Ranabhat's scores were inadequate on the PTE test that he did take, he would have achieved a sufficient score, for the purposes of the Regulations, had he undertaken some other tests.
4. The learned primary judge rightly held that, under the Regulations, there was no scope for the Tribunal to assess or assume what Mr Ranabhat's score may have been had he taken a different test. Indeed, the Pearson PTE Scoring Comparison was "only a guide produced by Pearson to explain its own scoring system" and, thereby, had no legal standing: Ranabhat (FCFCOA) [43].
5. In a similar vein, her Honour concluded that the Tribunal had no discretion to consider English competency otherwise than in accordance with the criteria defined by the Regulations - that is, the Tribunal was to assess whether Mr Ranabhat had "competent English" by reference to the Regulations, not pursuant to a subjective view that his English was "good". Those observations were entirely correct. Similarly, her Honour held that whether the Appellants' migration agent had misled them with respect to how Mr Ranabhat's English competency might be assessed was wholly irrelevant to the question of whether the statutory criteria in the Regulations was satisfied. All of that is correct and no submission was advanced that undermined the Tribunal's determination nor the conclusion of the primary judge that no error had been committed.
6. The primary judge concluded that there was no evidence that the Tribunal had failed to respond to a request by the Appellants for an opportunity to provide any further evidence. That finding is correct and there is no evidence which suggests to the contrary. Indeed, as the primary judge concluded, had it considered an English Language competency test undertaken by Mr Ranabhat after the date of the Visa Application, it would have fallen into error. That is also correct.
7. In the course of the appeal, Mr Ranabhat acknowledged that there was nothing to the suggestion that he had been denied any relevant opportunity to provide further evidence to the Tribunal.
8. The grounds of appeal further assert error by the Tribunal in not considering that Mr Ranabhat would be of some benefit to an Australian employer. As the primary judge correctly concluded, that matter is irrelevant to the question of whether the statutory criteria was met.
9. In the grounds of appeal, there is some suggestion that the primary judge did not consider the entirety of the grounds of review then before the Court. There is no merit in that assertion and the reasons of the primary judge are careful, comprehensive and address all of the issues raised.

1. As advanced to this Court, there is no merit in the Appellants' grounds of appeal. At best, they simply reventilate the issues that were before, and thoroughly disposed of by, the primary judge. It follows that it is appropriate to dismiss the appeal.

1. There should be a further hearing on the question of costs. That is because, should the Minister wish to seek an order under s 486F of the Act that someone other than Mr Ranabhat be responsible for the costs, such an order must be determined as at the time that the question of costs in the relevant migration litigation is to be considered.
2. As mentioned, in the course of the appeal, Mr Ranabhat indicated that he had been assisted by a solicitor in the preparation of the notice of appeal and that he had paid some $5,000 for those services. The full circumstances of that assistance are unknown and no conclusion can be made in relation to them. Nevertheless, there is sufficient evidence to raise the possibility that the Minister may wish to seek a costs order against a person (or persons) other than the Appellants and an order should be made affording them the opportunity to do so.
3. Further, by s 486F of the Act, the Court has power on its own motion to make an order requiring that a lawyer, who received fees for work in relation to migration litigation, repay those fees to the person who paid them. That might be an appropriate ancillary order were the Minister to seek an order that the costs of the appeal be paid by any person other than the Appellants.
4. The circumstances in which the notice of appeal was prepared raises additional questions. In particular, the failure of the solicitor, if there was one, to certify the document in accordance with s 486I of the Act, is a matter of great concern. Moreover, if such notice was prepared by a solicitor, it is unclear why it instead discloses that it was "prepared by Santosh Ranabhat".
5. As such, it is appropriate to hold a case management hearing in relation to the question of costs, after the Minister has had sufficient time to consider his position in relation to that issue.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.