Bhattarai (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Bhattarai, who sought a Subclass 187 Regional Sponsored Migration Scheme visa under the Direct Entry stream. The dispute centred on whether Mr. Bhattarai met the English language proficiency requirement at the time of his visa application. His wife, Mrs. Bhattarai, was a secondary applicant whose eligibility depended on Mr. Bhattarai meeting the primary criteria.

The primary legal issue before the Tribunal was whether Mr. Bhattarai satisfied clause 187.232 of Schedule 2 to the Migration Regulations 1994. This clause requires an applicant for a Direct Entry Subclass 187 visa to have had "competent English" at the time of application, which is defined as either undertaking a specified language test within three years prior to the application and achieving a specified score, or holding a specified passport.

The Tribunal found that Mr. Bhattarai did not meet the English language requirement. While he later provided evidence of a PTE Academic test taken on 26 May 2019, which would have demonstrated competent English, this test was conducted one month after his visa application was lodged on 23 April 2019. The regulations stipulated that the test must have been undertaken within the three years *prior* to the application. Mr. Bhattarai acknowledged this failure to meet the time-of-application criterion. As he did not meet the primary criteria, Mrs. Bhattarai's application also failed. The Tribunal affirmed the delegate's decision to refuse the visa applications. The Tribunal also considered whether to refer the case for Ministerial intervention under section 351 of the Migration Act 1958, but concluded that the circumstances did not exhibit the unique or exceptional qualities typically required for such consideration.