Munagala v Minister for Immigration

[2014] FCCA 1015

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUNAGALA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1015

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – where applicant required competent English for visa application – where applicant could not provide Tribunal with evidence of satisfactory IELTS test score – whether Tribunal fell into jurisdictional error.

Legislation:  

Migration Regulations 1994 (Cth)

Applicant: DEVADAS REDDY MUNAGALA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 213 of 2013

Judgment of: Judge Raphael

Hearing date: 13 May 2014

Date of Last Submission: 13 May 2014

Delivered at: Adelaide

Delivered on: 13 May 2014

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.

3. The name of the First Respondent be amended to Minister for Immigration and Border Protection.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 213 of 2013

DEVADAS REDDY MUNAGALA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before the Court this morning an application filed on 18 July 2013 for review of a decision of the Migration Review Tribunal.  Mr Munagala, the applicant, had applied for a Skilled (Provisional) (class VC) subclass 485 (Skilled-Graduate) visa.  That class required evidence that the applicant had obtained competent English.  ‘Competent English’ is defined by regulation 1.15C of the Migration Regulations 1994 (Cth), and it relevantly requires an IELTS test score of at least 6 in each of the four competencies.

2. When Mr Munagala applied for his visa, he had not obtained an IELTS test score of the required amount in a test that was taken within two years of the application being made.  Indeed, it does not appear that he has ever taken such a test.  If he has, he has provided no evidence of it.  As a result, his application was refused by the delegate.  He then applied for review of that decision to the Migration Review Tribunal, but when the matter came before the Tribunal he still did not have any evidence of having competent English.  And so it was not difficult for the Tribunal, in a decision of 11 paragraphs and just over one page, to confirm the decision under review.

3. When Mr Munagala applied to this Court, he put in his application the following:

   “My application for Skilled Graduate 485 application was refused because I was not able to submit my IELTS results with 6 bands each.  Then I applied to Migration Review Tribunal but I was unable to get the required English level of 6 bands each in IELTS.  I am applying my case to Federal Circuit Court of Australia to get some more time to provide my IELTS results of 6 bands each i.e:- competent English.”

4. The application reveals that the decision of the Tribunal was clearly correct, and neither today nor at any time in the past has Mr Munagala suggested anything to the contrary.  He tells the Court that he does not have test results that are satisfactory, although I informed him that even if he did have such results now, there was little the Court could have done for him.  In those circumstances, there is no alternative but to dismiss the application and to order that the applicant pay the respondent’s costs assessed in the sum of $4,000.00.  The name of the first respondent should be changed to Minister for Immigration and Border Protection.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  20 May 2014