Shaikh v Minister for Immigration

The applicant, Ms. Shaikh, sought judicial review of a decision by the Migration Review Tribunal (Tribunal) which affirmed a delegate's decision to refuse her application for a Skilled (residence) (Class VB) visa. The proceeding was brought under s.476(1) of the Migration Act 1958 (Cth). The applicant relied on her original application and affidavit, which primarily contained the Tribunal's decision and correspondence. At the hearing, the applicant raised concerns about processing times and her inability to obtain employment, but made no submissions identifying jurisdictional error in the Tribunal's decision.

The central legal issue before the court was whether the Tribunal committed jurisdictional error by failing to take account of relevant considerations when determining if the applicant met the requirements for the visa. Specifically, the court needed to consider the criteria for a "qualifying score" under Subdivision B of Division 3 of Part 2 of the Act, which involves a points system. The applicable pass mark for the visa at the time of the delegate's and Tribunal's decisions was 120 points.

The court noted that to satisfy the primary criteria for the visa, the applicant was required to achieve a "qualifying score" as assessed under the points system. This score is determined by allocating points for particular attributes, as provided in Schedule B of the Regulations. The court highlighted that 25 points could be awarded for "proficient English" or 15 points for "vocational English," as defined in the Regulations. The applicant's first ground of application alleged that the Tribunal failed to consider relevant factors in its determination of whether she met these visa requirements.