Kaur v Minister for Immigration and Border Protection

In Kaur v Minister for Immigration and Border Protection, the appellants, Mrs Kaur and Mr Singh, challenged the Federal Circuit Court's decision to dismiss their appeal against the delegate's decision not to grant them Skilled (Provisional) (Class VC) visas. The dispute primarily revolved around the application of certain provisions in the Migration Regulations 1994, specifically PIC 4020 and the requirement for a current skills assessment. The case was heard in the Federal Court of Australia.

The central legal issues were whether the appellants had an accrued right to have their visa applications assessed under the law in force at the time of the delegate’s decision and if any amendments to the regulations could derogate from this right. Another issue was whether the appellants were required to satisfy the amended criteria in PIC 4020, and if the new requirements applied only to cases involving a prior lawful refusal of a visa due to failure to meet the criteria. The court also considered whether the appeal should be dismissed based on the discretion provided under relevant legislation.

The court held that the appellants did not have an accrued right to have their applications assessed under the law as it stood at the date of the delegate's decision, as the legislative scheme did not manifest an intention to confer such a right. The court found that the Legislative Instruments Act 2003 did not apply to the amendments made to the Migration Regulations, and thus the appellants' rights could be affected prospectively. The court also ruled that the appellants were required to meet the amended criteria in PIC 4020, which did not exclusively apply to cases of prior lawful refusal. Finally, the court determined that the appeal should not be dismissed under the discretion provided, as it was necessary to address the substantive ground of appeal.

The appeal was dismissed with costs, as per the court's decision.