Agarwal (Migration)

The Administrative Appeals Tribunal reviewed a decision to refuse a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa, to the applicant, Mr. Agarwal. The core of the dispute concerned whether the applicant met the English language proficiency requirements stipulated by the relevant regulations.

The Tribunal was required to determine if the applicant had satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause mandates that an applicant must provide evidence of having undertaken a specified English language test and achieved the required score within a period prescribed by the Minister, or alternatively, hold a specified type of passport.

The Tribunal found that the applicant did not meet the passport criterion. Regarding the English language test, the applicant lodged his visa application on 27 January 2020. While he provided an IELTS test result, this test was undertaken on 22 February 2020, which was after the visa application was lodged. The applicant's most recent English test prior to lodging the application was dated 13 August 2016. The Tribunal noted that clause 485.212 requires the test to be undertaken within three years before the visa application was lodged. Despite the applicant explaining personal circumstances that led to him missing a previously booked test, the Tribunal concluded that it had no discretion to waive this mandatory requirement.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 485 visa, as he failed to meet the essential English language criteria.