Aleksic (Migration)

The Administrative Appeals Tribunal considered an appeal by an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate), against a delegate's decision to refuse the visa. The core of the dispute concerned the applicant's compliance with the English language proficiency requirements stipulated by the relevant legislative instrument.

The Tribunal was required to determine whether 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, achieved a specified score within a prescribed period, and met any other specified requirements, or alternatively, hold a passport of a specified type.

The Tribunal reasoned that the applicant did not meet the alternative requirement of holding a specified passport. Regarding the English language proficiency requirement, the Tribunal noted that the applicant had provided evidence of two IELTS tests. The first test, undertaken on 25 May 2013, did not satisfy the requirement that the test be undertaken within three years prior to the visa application date. The second test, undertaken on 23 March 2019, was after the visa application was made, and therefore also failed to meet the prescribed timeframe. Consequently, the Tribunal affirmed the delegate's decision not to grant the visa.