Thlork v Minister for Immigration and Border Protection [2019] FCA 333

Thlork v Minister for Immigration and Border Protection [2019] FCA 333

The appeal had to be dismissed because the first appellant did not undertake and pass the required English language test within the three years before the visa application was made, as mandatorily required by cl 485.212 and IMMI 15/062. The later February 2017 IELTS result could not be taken into account, medical or compassionate circumstances could not overcome the mandatory criterion, and no error by the primary judge was shown.

Jurisdiction
Australia
Judgment Date
14 March 2019
Procedural Posture
Migration Appeal From Orders of the Federal Circuit Court Dismissing an Application for Judicial Review / Appeal to the Federal Court of Australia
Outcome
Appeal dismissed
Legal Topics
['temporary Graduate (class VC, Subclass 485) Post Study Work Visa' 'english Language Test Requirement' 'judicial Review' 'jurisdictional Error' 'mandatory Visa Criteria']
['migration' 'administrative Law'] ['temporary Graduate (class Vc, Subclass 485) Post Study Work Visa' 'english Language Test Requirement' 'judicial Review' 'jurisdictional Error' 'mandatory Visa Criteria']

Case Brief

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Procedural Posture

Migration Appeal From Orders of the Federal Circuit Court Dismissing an Application for Judicial Review / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ["Whether the primary judge erred in dismissing the application for judicial review of the Tribunal's decision affirming refusal of subclass 485 visas." 'Whether the first appellant satisfied cl 485.212 of the Migration Regulations 1994 (Cth) by undertaking and passing a specified English language test within the required period.' 'Whether medical, compassionate or fairness circumstances could overcome the mandatory English language test criterion.']

Ratio Decidendi

The appeal had to be dismissed because the first appellant did not undertake and pass the required English language test within the three years before the visa application was made, as mandatorily required by cl 485.212 and IMMI 15/062. The later February 2017 IELTS result could not be taken into account, medical or compassionate circumstances could not overcome the mandatory criterion, and no error by the primary judge was shown.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal be dismissed.' 'The first and second appellants pay the costs of the first respondent of and incidental to the appeal, as agreed or assessed.']