Kaur (Migration)

The applicant, Ms Kaur, sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse her application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of the Subclass 186 (Employer Nomination Scheme) visa. The position for which she was nominated was that of a Cook. The primary ground for refusal related to the applicant's English language proficiency.

The central legal issue before the Federal Court was whether the applicant had demonstrated "competent English" as required by the Migration Regulations 1994 (Cth) and associated policy guidelines. Specifically, the court had to determine if Ms Kaur's completion of five years of full-time study at a higher education institution, which was registered with the Tertiary Education Quality and Standards Agency (TEQSA), satisfied the criteria for competent English, notwithstanding that the specific course of study was not explicitly listed as meeting the requirement.

Justice Dougall found that the delegate's decision had failed to properly consider the evidence presented by the applicant regarding her tertiary education. The delegate had applied a narrow interpretation of the relevant policy, which stipulated that a qualification from a higher education institution would only be accepted if the institution was registered with TEQSA and the course of study was delivered in English. While the applicant's institution was TEQSA-registered and her studies were in English, the delegate had overlooked the fact that the applicant had completed five years of full-time study, which, in the Court's view, was a significant factor that should have been taken into account. The Court concluded that the delegate's assessment of the applicant's English language ability was unreasonable and lacked an evidential basis.

The Court ordered that the decision under review be set aside and remitted to the Minister for redetermination according to law.