Minister for Immigration and Citizenship v Kamal [2009] FCAFC 98

Minister for Immigration and Citizenship v Kamal [2009] FCAFC 98

Item 5A404(a) of Schedule 5A to the Migration Regulations 1994 (Cth) is not confined to IELTS tests taken before the visa application date. Its language is directed to the recency of the test result and is properly construed as covering a test taken no earlier than two years before the application date. The Tribunal therefore erred in treating Mr Kamal's IELTS test of 8 December 2007 as incapable of satisfying Item 5A404(a) merely because it was taken after his 23 August 2007 application, and the Federal Magistrates Court was correct to find jurisdictional error. The Minister's appeal was dismissed.

Jurisdiction
Australia
Judgment Date
21 August 2009
Procedural Posture
Migration Appeal / Appeal to the Full Court of the Federal Court of Australia From Orders of the Federal Magistrates Court Granting Constitutional Writ Relief
Outcome
Appeal dismissed with costs.
Legal Topics
['student (temporary) (class Tu) Visa' 'subclass 572 Vocational Education and Training Sector Visa' 'english Language Proficiency Evidence' 'ielts Test Timing' 'jurisdictional Error' 'constitutional Writ Relief']
['migration Law' 'administrative Law' 'statutory Interpretation'] ['student (temporary) (class Tu) Visa' 'subclass 572 Vocational Education and Training Sector Visa' 'english Language Proficiency Evidence' 'ielts Test Timing' 'jurisdictional Error' 'constitutional Writ Relief']

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Procedural Posture

Migration Appeal / Appeal to the Full Court of the Federal Court of Australia From Orders of the Federal Magistrates Court Granting Constitutional Writ Relief

Legal Issues

  1. 1 ['Whether the phrase "[a test] taken less than two years before the date of the application" in Item 5A404(a) of Schedule 5A to the Migration Regulations 1994 (Cth) requires the IELTS test to have been taken before the visa application date.' 'Whether an IELTS test taken after the student visa application date but no earlier than two years before that date can satisfy Item 5A404(a).' "Whether the Migration Review Tribunal's contrary construction involved jurisdictional error."]

Ratio Decidendi

Item 5A404(a) of Schedule 5A to the Migration Regulations 1994 (Cth) is not confined to IELTS tests taken before the visa application date. Its language is directed to the recency of the test result and is properly construed as covering a test taken no earlier than two years before the application date. The Tribunal therefore erred in treating Mr Kamal's IELTS test of 8 December 2007 as incapable of satisfying Item 5A404(a) merely because it was taken after his 23 August 2007 application, and the Federal Magistrates Court was correct to find jurisdictional error. The Minister's appeal was dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

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