Leung (Migration)

The applicant, Mr. Leung, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse his application for a Skilled (Provisional) (Class VC) visa, subclass 485, Graduate Work stream. The primary dispute concerned whether Mr. Leung had satisfied the English language proficiency requirement for this visa.

The Federal Court was required to determine whether the Occupational English Test (OET) results provided by Mr. Leung were sufficient to demonstrate the requisite level of English language proficiency as stipulated by the Migration Regulations 1994. Specifically, the court had to consider the validity and acceptance of the OET results in light of the relevant legislative instrument and the Minister's delegate's assessment.

Justice Cullen found that the delegate had erred in law by failing to properly consider the OET results in accordance with the requirements of the relevant legislative instrument. The delegate had incorrectly applied a standard that was not mandated by the instrument, thereby failing to afford Mr. Leung's evidence due consideration. The court held that the delegate's decision was affected by jurisdictional error.

The court ordered that the decision of the Minister's delegate be set aside and remitted to the Minister for redetermination according to law.