Rendon v Minister for Immigration and Citizenship [2025] FedCFamC2G 969

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. Mr Rendon first applied for a Temporary Business Entry (Class UC) (subclass 457) visa in early 2018. He was unsuccessful on his first attempt but the decision of the minister's delegate was remitted for reconsideration in 2020. The application was again rejected - on this occasion, because Mr Rendon was unable to provide evidence of his English language proficiency as required in cl 457.223(4)(eb) in Schedule 2 of the Migration Regulations 1994 (Cth). The Tribunal affirmed the delegate's decision on essentially the same basis on 5 August 2021. The Tribunal's decision is reproduced in the court book.
2. Mr Rendon has lodged an application for judicial review. A friend assisted him in the drafting of the grounds. The grounds say the Tribunal's decision is infected by jurisdictional error because:
   • It applied cl 457.233, which was invalid (the applicant confirmed at the hearing that he was in fact referring to cl 457.223);
   • The Tribunal failed to afford the applicant procedural fairness when it failed to grant an adjournment to allow him to undertake a fresh English language proficiency test that was scheduled for a date after the hearing; and
   • The Tribunal failed to comply with its obligations under s 359A of the Migration Act 1958 (Cth) in that it failed to put the applicant on notice of its concerns about the English language proficiency requirement and failed to allow him time to comment on or comply with those requirements.
3. I will deal with each of those grounds below.

1. The applicant was not represented at the hearing before me. At the outset of the hearing, I explained the concept of jurisdictional error. I told him the Court was only able to intervene in the decision where it is satisfied the Tribunal's decision was affected by jurisdictional error.
2. I told Mr Rendon a jurisdictional error occurred when the decision under review, or the process which led to that decision, was affected by some legal error that effectively caused the decision-making process to miscarry such that the only appropriate response was to remit the matter to the decision-maker so the process could be done over. I referred to some examples of jurisdictional error discussed by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 but noted it was impossible to produce a definitive list of what constituted jurisdictional error. Examples of potential jurisdictional error included:
   • Misunderstanding or misstating the correct legal test;
   • Reaching a decision that was unreasonable in the sense that the decision was illogical or disconnected from the evidence;
   • Taking irrelevant matters into account, or failing to take account of relevant facts or arguments; or
   • Actual or apprehended bias and other denials of procedural fairness.
3. I told the applicant I was unable to decide whether he should get a visa. The question of whether he should get a visa was a matter for the executive government in accordance with the law. My focus is on errors in the Tribunal's decision.

1. The Tribunal's hearing occurred on 5 August 2021. The Tribunal made its decision on the same day. The decision is short, but there is no criticism on that account. It correctly identifies the question it must address for the purposes of the proceedings before it: whether the applicant met the requirements of cl 457.223(4)(eb). The Tribunal found the applicant was not an exempt applicant and the exclusionary provision in subclause (6) of that regulation did not apply. (I do not understand these findings to be controversial.) In those circumstances, the Tribunal was satisfied the applicant was required to satisfy the English language testing requirements specified by the minister within the requisite time. Those requirements are set out in a ministerial instrument, the Migration (IMMI17/057: English Language Requirements for Subclass 457 visas) Instrument 2017. The instrument requires that the applicant achieve a particular score - which he was unable to do despite multiple attempts because he told me he experienced panic attacks. The instrument also required the applicant to achieve that score within three years of the lodgement of the visa application. As a practical matter, that meant the applicant was required to achieve the requisite score by 2 February 2021, the third anniversary of his application. That date had already passed by the time of the hearing.
2. The minister notes there is a typographical error in the Tribunal's reasons. The error is contained in the Tribunal's explanation of cl 457.223(4)(eb). The minister says it is not an error of substance. I agree. The error is not such as to cause the decision-making process to miscarry. In any event, I note the Tribunal annexed the text of cl 457.223 to its reasons for decision, so there is no doubt it was aware of the text.
3. The Tribunal noted the applicant had sought an adjournment of the hearing. The Tribunal explained its reasons for declining the adjournment in its reasons for decision. The Tribunal said (at [13]) there was no point allowing such an adjournment because the applicant was required to achieve the requisite test result by no later than 2 February 2021, and that date had already passed. Allowing the adjournment would make no practical difference.
4. The Tribunal found there was no evidence the applicant had met the required test scores within the timeframe indicated in IMMI17/057. In those circumstances, the applicant could not satisfy the requirements in cl 457.223(4)(eb). The Tribunal affirmed the delegate's decision.

1. The applicant's first ground of review suggests cl 457.223(4)(eb) was not valid. We discussed that ground during the course of his submissions but he was unable to explain what he meant when he said it was invalid. There is no substance to this ground.
2. The second ground relates to the Tribunal's refusal to grant an adjournment. While an adjournment refusal may be unreasonable, there is no reason to suppose that was the case here. The Tribunal gave a reasonable explanation in its statement of reasons for proceeding as it did: there was simply no point in adjourning to afford the applicant yet another opportunity to achieve the required test result because the period within which he was required to pass the test had already concluded. I should add there was nothing procedurally unfair in that decision: the applicant had already enjoyed ample time to satisfy the requirements and had made numerous attempts to do so. It is not incumbent on the Tribunal to give applicants repeated opportunities to meet the requirements of a visa.
3. The third ground contends there was a failure to comply with the obligations in s 359A of the Act. Mr Rendon says in his application that the Tribunal "failed to inform or put the applicant on notice in relation to its concerns regarding the English language test requirements". He argued the Tribunal should have given him an opportunity to comment on these concerns "or alternatively given [him] ample time to provide the English test".
4. The minister points out the English language proficiency requirement was a criterion in the legislative scheme. It was not information that engaged the operation of s 359A. That is correct. I should add there can be no doubt the applicant was on notice that the requirements were central to the decision the Tribunal was required to make: those requirements were at the heart of the delegate's decision.
5. I gave the applicant an opportunity at the end of his submissions to explain to me in his own words any criticisms of the decision he wished to make. He said he had been in Australia a long time and had reached a level of English proficiency that was adequate for the work he was doing. He said he was unable to complete the tests because he experienced panic attacks which is unfortunate. He said he wanted to stay and had always obeyed the law.
6. I am mindful the applicant appears to have been a hard worker who has done his best, It is unfortunate that he has experienced difficulty in completing the requisite tests. That is not a basis on which I can intervene in the Tribunal's decision which was inevitable given the law.
7. I must dismiss the application for review as none of the grounds have been made out, and I am not aware of any other basis for identifying a jurisdictional error. That leaves only the questions of costs. I had a brief discussion with the parties at the conclusion of submissions about whether a costs order should be made. I am satisfied it is appropriate to make an award of costs in favour of the minister.
8. An award of costs is appropriate because the minister has incurred expenses in defending these proceedings. Ms Jackson, the minister's solicitor, was able to outline that work, which is nonetheless apparent on the Court's file. I am told the minister's actual costs approximates $5,900 which is substantially below the amount indicated by the Court's scale. I accept that given the work that has been done that is an appropriate amount and I will make an order in those terms.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge McCabe.