Bhutani (Migration)

The Administrative Appeals Tribunal, constituted by Warren Stooke AM, considered an appeal by an applicant concerning a decision not to grant a Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) visa. The core of the dispute revolved around the applicant's failure to meet the English language proficiency requirements stipulated for the visa subclass.

The Tribunal was required to determine whether the applicant satisfied clause 485.212 of Schedule 2 to the Migration Regulations. This clause mandates that an application for a Subclass 485 visa must be accompanied by evidence of either undertaking a specified language test and achieving the required score within a specified period, or holding a passport of a type specified by the Minister. The Tribunal also considered a request for a Ministerial Reference under section 351 of the Migration Act 1958 (Cth).

The Tribunal found that the applicant did not meet the criteria under clause 485.212(b) as there was no evidence of holding a specified passport. Regarding clause 485.212(a), the applicant admitted to completing a Pearson Test of English (PTE) on 19 March 2019, which was after the date of their visa application. While the applicant claimed difficulties in booking an earlier test, the Tribunal was not satisfied that the applicant had undertaken a language test specified in the relevant instrument or achieved the required score within the specified period. Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa.

The Tribunal considered the applicant's request for a Ministerial Reference under section 351, which allows the Minister to substitute a more favourable decision if it is in the public interest. After reviewing the applicant's case and relevant departmental guidelines, the Tribunal decided not to refer the matter for ministerial consideration, noting that the applicant could still make a direct request to the Minister. The Tribunal affirmed the decision not to grant the visa.