DOKKAEW (Migration)

The applicant, Dokkaew, sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerning her application for a Subclass 186 Employer Nomination (Permanent) (Class EN) Visa, Temporary Residence Transition stream. The applicant had been nominated for the position of Restaurant Manager.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the applicant met the English language requirement for the visa, specifically whether she qualified for an exemption. The applicant contended that she had completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English, which would exempt her from the standard English language proficiency test.

The Court found that the delegate's assessment of the applicant's English language proficiency was flawed. The delegate had failed to properly consider the evidence provided by the applicant regarding her prior study in English. The Court determined that the applicant had indeed met the criteria for the exemption, as she had completed a minimum of five years of full-time study in an institution where all tuition was delivered in English.

Consequently, the Court remitted the decision to the Minister for reconsideration according to law.