Arora (Migration)

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, made by Mr. Arora. The dispute centred on whether the applicant met the English language proficiency requirements stipulated by clause 485.212 of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was to determine if the applicant had provided satisfactory evidence of meeting the English language proficiency criteria. Specifically, the Tribunal had to ascertain whether the applicant had undertaken a specified language test and achieved the required score within the period mandated by the relevant instrument, or if they held a passport from a specified country.

The Tribunal reasoned that the applicant did not satisfy clause 485.212(b) as there was no evidence of him holding a passport from a specified country. Consequently, the applicant was required to meet the requirements of clause 485.212(a). While the applicant had undertaken an IELTS test and achieved the specified scores, the test was conducted on 9 September 2017, which was outside the 3-year period prior to the application lodgement date, as required by Instrument IMMI 15/062. Although the applicant claimed to have received advice from a Departmental officer permitting the submission of documents after lodgement, the Tribunal found that the requirements of clause 485.212 were mandatory and that it had no discretion to overlook this deficiency, even if incorrect advice had been given.

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