Bjork (Migration)

The Administrative Appeals Tribunal considered the case of Ms. Bjork, an applicant for a Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate). The dispute centred on whether Ms. Bjork met the English language proficiency requirement for the visa.

The Tribunal was required to determine if Ms. Bjork satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause mandates that an applicant must provide evidence of either holding a specified passport or having undertaken an approved English language test with a specified score within a specified period, in accordance with relevant instruments. The Tribunal also considered whether there was any discretion to waive this requirement.

The Tribunal found that Ms. Bjork did not meet the passport requirement under clause 485.212(b), as she did not hold a passport from a country specified in the relevant instrument, IMMI 15/062. Consequently, she was required to satisfy clause 485.212(a). While Ms. Bjork provided evidence of an IELTS test taken on 12 May 2018, this test was undertaken after her visa application was lodged on 9 March 2018. The regulations, as specified in IMMI 15/062, require the English language test to be undertaken within 36 months prior to lodging the application. The Tribunal noted that there was no discretion to waive this requirement, and Ms. Bjork's submission that she misunderstood the Department's website information, and the potential hardship to her family, did not alter the regulatory requirements.

The Tribunal affirmed the decision not to grant Ms. Bjork the Skilled (Provisional) (Class VC) visa, subclass 485, as she failed to meet the mandatory English language proficiency requirement.