Mohamed Farook v Minister for Immigration and Border Protection [2014] FCA 1017

Mohamed Farook v Minister for Immigration and Border Protection [2014] FCA 1017

The appellant applied for a subclass 485 visa and did not make a valid application for a subclass 487 visa because the application identified subclass 485 and the required subclass 487 visa application charge had not been paid. The Tribunal was not required to consider an invalid or unmade subclass 487 application. The competent English criterion in cl 485.215 and reg 1.15C applied, and the appellant never achieved the required IELTS score of at least 6 in each of the four components and did not rely on an OEL test or specified passport. Berenguel did not require the Tribunal to give further time beyond the opportunity already given. Although the Tribunal erred in identifying IMMI 09/073...

Jurisdiction
Australia
Judgment Date
17 September 2014
Procedural Posture
Migration Appeal From the Federal Circuit Court of Australia / Appeal Against Dismissal of Application for Judicial Review of Migration Review Tribunal Decision
Outcome
Appeal dismissed.
Legal Topics
['skilled (provisional) (class Vc) Visa' 'subclass 485 Visa' 'subclass 487 Visa' 'competent English Requirement' 'ielts Test Requirement' 'jurisdictional Error' 'visa Application Charge' 'statutory Interpretation']
['migration Law' 'administrative Law'] ['skilled (provisional) (class Vc) Visa' 'subclass 485 Visa' 'subclass 487 Visa' 'competent English Requirement' 'ielts Test Requirement' 'jurisdictional Error' 'visa Application Charge' 'statutory Interpretation']

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Procedural Posture

Migration Appeal From the Federal Circuit Court of Australia / Appeal Against Dismissal of Application for Judicial Review of Migration Review Tribunal Decision

Legal Issues

  1. 1 ["Whether the Tribunal erred by treating the appellant's application as an application for a subclass 485 visa only and not considering it as a subclass 487 visa application." 'Whether the Tribunal erred in its application or interpretation of Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1.' 'Whether the Tribunal and the primary judge applied the correct regulation and statutory instrument concerning the competent English requirement.' 'Whether any error in identifying the applicable statutory instrument was jurisdictional error.']

Ratio Decidendi

The appellant applied for a subclass 485 visa and did not make a valid application for a subclass 487 visa because the application identified subclass 485 and the required subclass 487 visa application charge had not been paid. The Tribunal was not required to consider an invalid or unmade subclass 487 application. The competent English criterion in cl 485.215 and reg 1.15C applied, and the appellant never achieved the required IELTS score of at least 6 in each of the four components and did not rely on an OEL test or specified passport. Berenguel did not require the Tribunal to give further time beyond the opportunity already given. Although the Tribunal erred in identifying IMMI 09/073...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' "The Appellant pay the First Respondent's costs."]