Yam (Migration)

The applicant, Yam, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse her application for a Temporary Graduate visa (subclass 485). The primary dispute concerned whether Yam had met the English language proficiency requirement for the visa at the time of her application.

The central legal issue before the Federal Circuit and Family Court of Australia was whether the applicant had satisfied the English language proficiency requirement for the subclass 485 visa. Specifically, the court had to determine if the requirement that evidence of proficiency accompany the visa application meant that the test itself must have been undertaken and passed prior to the lodgement of the application, or if it was sufficient for the test to be undertaken subsequently, provided the results were available before a decision was made.

Her Honour Judge Synon found that the Migration Regulations 1994 (Cth) and the relevant ministerial directions clearly stipulated that evidence of English language proficiency must accompany the visa application. The applicant had not undertaken the required English language test until after she had lodged her visa application. Therefore, she had failed to satisfy a mandatory requirement of the visa. The court applied the principle that where a regulation requires evidence to accompany an application, that evidence must be in existence at the time of lodgement.

The application for judicial review was dismissed.