Yan (Migration)

The applicant, Yan, sought judicial review of a decision by the Department of Home Affairs to refuse her application for a Temporary Graduate visa (subclass 485). The dispute centred on whether Yan had met the English language proficiency requirements for the visa, particularly in light of the challenges posed by the COVID-19 pandemic in Melbourne, which limited opportunities to undertake approved English language tests. The matter came before Sheargold J in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Department's decision to refuse the visa application, based on the applicant's failure to provide evidence of meeting the English language proficiency requirements, was lawful. This involved considering the interaction between the legislated requirements for the visa and any departmental concessions or policies that may have been in place during the COVID-19 pandemic, specifically concerning the availability of English language testing facilities.

Her Honour considered the relevant legislative instrument, IMMI 15/062, which prescribed the English language requirements. The Court examined the evidence presented by the applicant regarding her attempts to undertake an English language test and the difficulties encountered due to pandemic-related restrictions in Melbourne. The Department's decision was affirmed, indicating that the Court found the applicant had not satisfied the prescribed requirements, and that any departmental concessions did not extend to excusing the applicant from meeting the legislated criteria in this instance.