Basnet (Migration)

This matter concerned an appeal by the applicant, Mr Basnet, against a decision to refuse a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa. The applicant sought to have the decision reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 485.212 of Schedule 2 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant had provided evidence of undertaking an English language test and achieving the required score within the specified period, or if they held a passport of a type specified by the Minister.

The Tribunal found that the applicant did not meet the requirements of clause 485.212(1)(b) as they did not hold a specified passport. Regarding clause 485.212(1)(a), the applicant had submitted an English language test result with an overall score of 39, which was below the minimum required score of 50 as stipulated in the relevant instrument. The Tribunal considered the applicant's request for a further postponement to retake the test, but determined that the regulations required the English language proficiency to be met prior to lodging the visa application. Consequently, the Tribunal concluded that it did not have the discretion to postpone the hearing to allow the applicant to meet this requirement at a later date.

The Tribunal affirmed the decision not to grant the applicant the visa, as they failed to satisfy the criteria for the Subclass 485 visa.