Cheung (Migration)

The applicant, Mr Cheung, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to affirm a decision to refuse his application for a Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate). The dispute centred on whether Mr Cheung had demonstrated the required English language proficiency.

The primary legal issue before the Federal Court was whether the Minister had erred in law by failing to consider, or adequately consider, the impact of the COVID-19 pandemic on Mr Cheung's ability to meet the English language proficiency requirement within the prescribed timeframe. Specifically, the court considered whether compelling circumstances existed that justified accepting IELTS test results older than three years.

Justice Dougall found that the delegate's decision did not demonstrate a failure to consider the relevant factors. The delegate had acknowledged the applicant's submission regarding the pandemic's impact and the difficulty in undertaking English language tests. However, the delegate concluded that the circumstances presented did not constitute "compelling circumstances" as required by the relevant policy, particularly given the availability of alternative English language tests and the applicant's prior successful completion of an English language test within the required period. The court affirmed the delegate's reasoning that the pandemic, while disruptive, did not create a situation where the applicant was unable to demonstrate English language proficiency through any available means.

The application for judicial review was dismissed.