Ashim (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Skilled (Provisional) (Class VC) visa, specifically a Subclass 485 (Temporary Graduate) visa. The applicant sought to have the decision affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause mandates that a visa application must be accompanied by evidence of either undertaking a specified English language test within a specified period and achieving the required score, or holding a passport of a type specified by the Minister.

The Tribunal found that the applicant did not meet the alternative requirement of holding a specified passport. Regarding the English language test requirement, the Tribunal interpreted the relevant instrument, IMMI 15/062, to establish a three-year period for undertaking the test, which concluded on the day the visa application was made, 19 August 2017. Although the applicant provided a Pearson Test of English Academic score report for a test undertaken on 23 August 2017, this was after the application lodgement date and thus outside the specified period. While the Tribunal accepted the applicant's submission that this was an honest mistake, it concluded that the applicant had not satisfied the requirement of undertaking a specified language test within the specified period with the required scores.

Consequently, the Tribunal was not satisfied that the applicant met the criteria under clause 485.212. As this was the sole relevant subclass, the Tribunal affirmed the decision not to grant the applicant the visa.