Chee (Migration)

The applicant, Chee, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to exercise the Minister's power of intervention under s 48B of the *Migration Act 1958* (Cth). The applicant had applied for a Skilled (Provisional) (Class VC) visa, subclass 385 (Temporary Graduate), but had not undertaken a specified English language test within the required timeframe, despite having completed high school and tertiary education in Australia. The Minister's delegate had declined to intervene.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the delegate's decision not to exercise the s 48B power was affected by jurisdictional error. Specifically, the court considered whether the delegate had failed to consider relevant considerations or had taken into account irrelevant considerations when assessing the applicant's request for intervention. The applicant argued that the delegate had overlooked the fact that their Australian education should have been sufficient to demonstrate English language proficiency, thereby rendering the requirement to undertake a separate test unreasonable in their circumstances.

Justice Mercer found that the delegate's decision was not affected by jurisdictional error. Her Honour reasoned that the Minister's power of intervention under s 48B is discretionary and that the delegate was entitled to consider the specific criteria set out in the relevant policy guidelines. The delegate had correctly identified that the applicant did not meet the English language proficiency requirements as stipulated by the visa subclass, and the fact that the applicant had completed their education in Australia did not, in itself, override this specific requirement. The delegate had considered the applicant's submissions and had provided reasons for declining to intervene, which were within the scope of the delegate's authority.

The application for judicial review was dismissed.