Thanthirige (Migration)

The applicant, Thanthirige, sought judicial review of a decision by the Minister to affirm the cancellation of her Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate). The visa was cancelled on the grounds that she failed to meet the English language requirement, specifically that her International English Language Testing System (IELTS) test had not been undertaken within the three years prior to her visa application.

The primary legal issue before the court was whether the applicant had satisfied the English language requirement for the Temporary Graduate visa. This involved considering the impact of the COVID-19 lockdown on the applicant's ability to undertake the IELTS test within the prescribed timeframe and whether the Department of Home Affairs had, in practice, temporarily relaxed its enforcement of this requirement. The court also had to determine if the Minister's decision to affirm the cancellation was affected by an error of law.

The court reasoned that the legislative instrument prescribing the visa requirements, specifically Regulation 1.15(1) of the Migration Regulations 1994, stipulated that an applicant must have undertaken an English language test within the three years immediately preceding the date of the application. While acknowledging the difficulties presented by the COVID-19 lockdown, including the cancellation of test dates, the court found that these circumstances did not alter the clear wording of the regulation. The Department's temporary non-enforcement of the requirement did not create a new rule or waive the existing legislative obligation. Therefore, the applicant had not met the mandatory English language requirement at the time of her application.

The court affirmed the Minister's decision to affirm the cancellation of the applicant's visa.