Australian Immigration Daily News

Do you remember the curious and unusual case of Guder v Minister for Immigration and Border Protection (2017) FCCA 626?

That was a case that highlighted an unusual aspect of the regulations relating to the now-repealed 457 visa program: namely, that the legislative instrument relevant to the English language proficiency requirement for the grant of 457 visas, IMMI 15/028, was written in terms that provided that an applicant had 3 years from the date of the lodgment of the application to satisfy the requirement.

The legislative instrument struck me as being somewhat “counter-intuitive”, in that one would have thought that having a satisfactory level of proficiency in English would be a “time of application” requirement.

But that was not the way that the legislative instrument was drafted.

It is quite clear that the legislative instrument does allow applicants three years from the time of application to demonstrate an adequate level of proficiency in English.

Well it is all really interesting, because the Department/Minister appealed from the decision of the Federal Circuit Court in Guder to the Federal Court.

And guess what: the Minister lost the appeal at the Federal Court level.

Check it out: Minister for Immigration and Border Protection v Guder (2018) FCA 626 (Justice Griffiths).

And this is what is really significant: the decisions in the Guder cases are a potentially powerful tool to get decisions by the Department refusing 457 visas and of the Tribunal affirming the refusal of 457 visas set aside.

Let’s refresh what happened in Guder:

The applicant (a citizen of Turkey) sought a 457 visa for the occupation of “chef”.  She had not achieved a satisfactory English language test result by the time that the Department determined her application, so the application was refused.

The applicant submitted the results of a number of additional IELTS tests to the Tribunal, but again, none of these test results reflected a sufficient score to satisfy the criteria for the grant of the 457 visa.

The Tribunal thus proceeded to affirm the refusal of the 457 visa application.

However, the Federal Circuit Court found that the Tribunal had committed jurisdictional error by failing to consider whether the applicant should be given more time to satisfy the English language requirement, and by failing to consider whether the hearing should be adjourned to allow her additional time to meet the requirement (since the full 3 year period since the time of the making of the application had not expired by the time of the Tribunal hearing). 

The Federal Circuit Court held that the Tribunal’s failure to ensure that the applicant was aware of the issue of whether she should be granted additional time amounted to a breach of section 360 of the Migration Act, in other words the applicant had been denied a meaningful hearing before the Tribunal (a “real chance” to present her case) and had thus been denied procedural fairness.

Justice Griffiths of the Federal Court held that the Federal Circuit Court’s determination that the Tribunal had committed jurisdictional error was correct.

Justice Griffiths confirmed the interpretation that the legislative instrument allows an applicant 3 years from the date of the application to achieve a satisfactory score on the English language proficiency test.

Accordingly, Justice Griffiths found that the questions of whether the applicant should be given more time to achieve a satisfactory result, and whether the applicant should be granted an adjournment of the Tribunal hearing so that she could attempt to meet the requirement, were issues that were relevant to the review before the Tribunal.

Justice Griffiths concluded that in the particular circumstances of the case, where the applicant was not represented by a migration agent at the Tribunal hearing and the 3 year period for achieving a satisfactory English test result had not yet elapsed, that the Tribunal should have explained  “its processes and procedures” (presumably that the applicant was entitled to a full 3 year period after the application to demonstrate satisfactory proficiency in English and that it was open to her to seek an adjournment of the AAT proceedings so she would have additional time to attempt to achieve a satisfactory result).

The decisions of the Federal Circuit Court and of the Federal Court in Guder could indeed be usefully relied on by applicants seeking to challenge the refusal of 457 visa applications on the basis that they did not achieve satisfactory results on the IELTS test. 

So it is really important that migration agents and migration lawyers be aware of these decisions!

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