Ghouri v Minister for Home Affairs

The applicant, Mr Ghouri, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning his application for a Skilled (Provisional) (Class VC) (Subclass 485) visa. The AAT had affirmed the delegate's refusal of the visa, which was based on the applicant's failure to meet the English language criterion.

The central legal issue before the Federal Court was whether the AAT had made a jurisdictional error in its review of the delegate's decision. Specifically, the court considered whether the AAT possessed any discretion to waive or overlook the English language requirement, even in circumstances where the applicant had a diagnosed learning disability.

Kendall J found that the Migration Act 1958 (Cth) and associated regulations prescribed specific criteria for the grant of the visa, including the English language proficiency requirement. The court determined that the AAT, in reviewing the delegate's decision, was bound by these legislative requirements and had no discretion to depart from them. The AAT's role was to assess whether the applicant met the prescribed criteria, not to exercise a general discretion to grant a visa in the absence of such compliance. Consequently, the AAT's conclusion that the applicant did not meet the English language criterion was a correct application of the law, and no jurisdictional error was identified.

The application for judicial review was dismissed.