1603062 (Migration)

This matter concerned an appeal by a visa applicant against a decision to refuse their Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa. The central dispute revolved around whether the applicant had provided sufficient evidence of English language proficiency at the time of lodging their application. The applicant had lodged their application on 9 December 2015, and the delegate's decision record indicated that only details of an IELTS test were uploaded to the Department's system. The applicant later provided evidence of a PTE test result to the Tribunal on 14 October 2016.

The court was required to determine the meaning of the phrase "accompanied by" in the context of the visa application requirements, specifically concerning the submission of evidence for English language proficiency. This involved considering whether evidence could be submitted after the initial lodgement of the visa application and, if so, what temporal connection was required between the lodgement and the submission of such evidence.

The court considered two relevant Federal Court decisions. In *Anand v MIAC* [2013] FCA 1050, the court accepted that evidence accompanying an application could be supplied after lodgement, provided there was a temporal connection. However, it cautioned that evidence submitted five months after lodgement and two days after a decision was too late. More recently, in *Nguyen v Minister for Immigration & Anor* [2016] FCCA 1523, the court held that the words "accompanied by" in relation to a Subclass 485 visa application implied a "very close temporal connection," finding a 29-day gap to be too great. Although *Nguyen* concerned a different clause, the wording regarding accompanying evidence was substantially the same. The Tribunal noted that the PTE test result was provided approximately ten months after the application was lodged, which was significantly outside any acceptable temporal connection established in the case law.