Minister for Immigration and Citizenship v Grant [2009] FCA 1059

Minister for Immigration and Citizenship v Grant [2009] FCA 1059

An applicant does not satisfy cl 485.215(c) by having arranged for and already taken a language test before the visa application; 'made arrangements to undergo a language test' requires the arrangement to be in place at the time of application for a test yet to be taken. Where the applicant has already taken the test and obtained results, only cl 485.215(b) is relevant, and cl 485.215(c) cannot be satisfied by a past act. Accordingly, the Federal Magistrates Court erred in its interpretation, and the Tribunal and delegate's decisions were correct.

Parties
Appellant: Minister for Immigration and Citizenship; First Respondent: Leon Grant; Second Respondent: Yuko Yokoi; Third Respondent: Migration Review Tribunal
Jurisdiction
Australia
Judgment Date
21 September 2009
Procedural Posture
Appeal / On Appeal From the Federal Magistrates Court of Australia
Outcome
Appeal allowed
Legal Topics
Statutory Interpretation, Visa Criteria, English Language Requirements, Jurisdictional Error, Procedural Fairness
Administrative Law Migration Law Statutory Interpretation Visa Criteria English Language Requirements Jurisdictional Error Procedural Fairness

Case Brief

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Parties

Minister for Immigration and Citizenship

Appellant

Leon Grant

First Respondent

Yuko Yokoi

Second Respondent

Migration Review Tribunal

Third Respondent

Procedural Posture

Appeal / On Appeal From the Federal Magistrates Court of Australia

Legal Issues

  1. 1 What is the meaning of the phrase 'the applicant has made arrangements to undergo a language test' in cl 485.215(c) of Sch 2 of the Migration Regulations 1994 (Cth)?
  2. 2 Does undertaking a language test before the visa application satisfy the criterion of cl 485.215(c)?

Ratio Decidendi

An applicant does not satisfy cl 485.215(c) by having arranged for and already taken a language test before the visa application; 'made arrangements to undergo a language test' requires the arrangement to be in place at the time of application for a test yet to be taken. Where the applicant has already taken the test and obtained results, only cl 485.215(b) is relevant, and cl 485.215(c) cannot be satisfied by a past act. Accordingly, the Federal Magistrates Court erred in its interpretation, and the Tribunal and delegate's decisions were correct.

Court Disposition

Appeal allowed

Orders

  • The appeal be allowed.
  • Orders (1)-(4) of the Federal Magistrates Court made on 6 May 2009 be set aside.