Khan (Migration)

The applicant, Mr Khan, sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerning his application for a Student (Temporary) (Class TU) visa, subclass 500. The decision under review was made pursuant to regulation 2.12(1)(b) of the Migration Regulations 1994 (Cth) and Instrument IMMI 15/144, which prescribed health criteria for visa applicants.

The primary legal issue before the Federal Circuit Court was whether the delegate of the Minister had erred in law by failing to consider, or adequately consider, the applicant's evidence of compliance with the prescribed health criteria. Specifically, the court was required to determine if the delegate's reliance on an "auto-clearance" process, without proper consideration of the applicant's submitted medical reports, constituted a failure to exercise jurisdictional error.

The court found that the delegate's decision was vitiated by jurisdictional error. The delegate had applied the "auto-clearance" criteria without undertaking a proper assessment of the applicant's individual circumstances and the medical evidence provided. The court held that while an "auto-clearance" mechanism could be a valid administrative tool, it could not substitute for the delegate's obligation to consider all relevant information and make an informed decision. The delegate's failure to engage with the applicant's medical evidence meant that the decision was not made according to law.

Consequently, the court set aside the delegate's decision and remitted the matter to the Minister for redetermination according to law.