1607829 (Migration)

The applicant sought judicial review of a decision by the Minister to refuse to grant a Subclass 485 (Temporary Graduate) visa. The applicant had achieved excellent academic results in Australia, completing a Master of Professional Accounting and a Master of Business Administration. However, the applicant had not undertaken an English language proficiency test within the three years immediately preceding their visa application, as required by the relevant legislative instrument.

The central legal issue before the Court was whether the applicant met the English language proficiency requirement for the Subclass 485 visa. Specifically, the Court had to determine if the applicant's academic achievements could substitute for the mandatory English language test, or if there was any discretion available to the Minister to waive this requirement.

Her Honour, Justice Cooper, found that the legislative instrument prescribing the requirements for the Subclass 485 visa was clear and unambiguous. The instrument stipulated that an applicant must provide evidence of English language proficiency by undertaking a specified test within the three years prior to the application. The Court held that there was no provision within the instrument that allowed for academic achievements to be considered as an alternative to this mandatory test, nor was there any discretion granted to the Minister to waive this requirement. Consequently, the applicant had failed to satisfy a mandatory criterion for the grant of the visa.

The application for judicial review was dismissed.