Badiya (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal by an applicant seeking a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The dispute centred on whether the applicant had met the English language proficiency requirements for the visa.

The Tribunal was required to determine if the applicant satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause mandates that a visa application must be accompanied by evidence of having undertaken a specified language test within a specified period and achieved a specified score, or by evidence of holding a specified type of passport. The relevant instrument was IMMI 15/062.

The Tribunal found that the applicant did not meet the passport requirement under clause 485.212(b). Regarding the language test requirement under clause 485.212(a), the applicant had not provided evidence of undertaking an English language test within the three years prior to lodging the application, nor had such evidence accompanied the application. While the applicant subsequently provided evidence of passing a PTE Academic English test, this test was undertaken after the visa application was lodged. The Tribunal noted that the legislative requirements were explicit and that it had no discretion to waive them. Consequently, the Tribunal affirmed the decision not to grant the applicant the visa.