AYUB (Migration)

The Administrative Appeals Tribunal considered the case of AYUB, an applicant for a Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate). The dispute centred on whether the applicant met the requirements for demonstrating English language proficiency as stipulated by the relevant regulations and instrument.

The primary legal issue before the Tribunal was to determine whether the applicant had satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause requires an applicant to provide evidence of having undertaken a specified English language test within a specified period and achieved the required score, or alternatively, to hold a passport of a specified type. The Tribunal was required to assess the applicant's compliance with these criteria, particularly the temporal requirement for the English language test.

The Tribunal reasoned that the applicant did not meet the requirements of clause 485.212(b) as there was no evidence of him holding a specified passport. Consequently, the applicant had to satisfy clause 485.212(a). While the applicant had undertaken a PTE Academic English test and achieved scores exceeding the minimum requirements specified in IMMI 15/062, the test was taken on 6 December 2017, which was after the applicant lodged his visa application on 1 December 2017. IMMI 15/062 stipulated that the test must have been undertaken within the three years immediately preceding the visa application. Despite acknowledging the applicant's explanation for the timing of the test and his demonstrated English proficiency through academic qualifications, the Tribunal found that the applicant had failed to meet the mandatory temporal requirement for the English language test.

Accordingly, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a subclass 485 visa. The decision under review, which refused the visa, was affirmed.