Agarwal (Migration)

The applicant, Mr Agarwal, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse his application for a Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate). The decision under review was made by a delegate of the Minister.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the delegate erred in law by failing to consider that the applicant might have been eligible for a waiver of the English language proficiency requirement for the visa. The applicant contended that the delegate should have considered this possibility, even though the application form did not explicitly provide for such a waiver.

Justice Connellan found that the Migration Regulations 1994 (Cth) prescribed specific criteria for the grant of a subclass 485 visa, including a mandatory English language proficiency requirement. The Court held that there was no provision within the regulations or the relevant ministerial policy that granted the Minister or their delegate a discretion to waive this requirement. Consequently, the delegate did not err in law by failing to consider a waiver that did not exist. The application for judicial review was dismissed.