Augustine (Migration)

The Administrative Appeals Tribunal considered an appeal by an applicant against a decision not to grant a Subclass 485 (Temporary Graduate) visa. The applicant sought to demonstrate English language proficiency as required by clause 485.212 of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had provided sufficient evidence that they had undertaken an English language test specified in an instrument, achieved the required score within the specified period, and met any other specified requirements at the time of lodging their visa application. The Tribunal also considered whether the applicant held a passport of a type specified by the Minister, which would have exempted them from the language testing requirement.

The Tribunal found that the applicant did not hold a passport of the specified type, meaning they had to satisfy the English language proficiency requirement under clause 485.212(a). The applicant lodged their visa application on 27 December 2018, declaring they had competent English. However, the primary evidence provided, a Pearson Test of English Academic (PTE) result, was dated 6 January 2019, which was after the application date. The applicant argued that it was impossible to secure an earlier test date in Victoria. The Tribunal noted that even an earlier PTE result from 10 September 2015, also submitted by the applicant, fell outside the 36-month period immediately preceding the visa application. The Tribunal concluded that the evidence of English language proficiency must accompany the application at the time of lodgement and that the applicant's test results did not meet this requirement.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 485 visa, as the applicant failed to satisfy the criteria under clause 485.212.