Chakaduka (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning a Subclass 485 (Temporary Graduate) visa application made by Mr. Chakaduka, a citizen of Zimbabwe. Mr. Chakaduka applied for the visa on 15 March 2017, having arrived in Australia in February 2014 and undertaken various studies. The visa delegate had refused the application on 5 May 2017, finding that Mr. Chakaduka did not meet the English language proficiency requirements stipulated by the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether Mr. Chakaduka satisfied the English language proficiency criterion for the Subclass 485 visa, as set out in clause 485.212 of Schedule 2 to the Migration Regulations. This criterion requires either that the visa application be accompanied by evidence of a specified language test undertaken within a prescribed period and achieving a specified score, or that the applicant holds a passport from a designated country. The relevant legislative instrument, IMMI 15/062, specified the International English Language Test System (IELTS) as an acceptable test, requiring it to be undertaken within three years prior to the visa application date, and also listed specific countries whose passports would satisfy the requirement.

The Tribunal noted that Mr. Chakaduka confirmed he did not hold a passport from any of the specified countries. Crucially, he also confirmed that he had not undertaken a specified English language test within the three years preceding his visa application. The Tribunal found that the language test must be undertaken within the prescribed period and that the application must be accompanied by evidence of this. As Mr. Chakaduka failed to meet either of the alternative requirements of clause 485.212, the Tribunal concluded that there was no discretion to exercise and affirmed the delegate's decision to refuse the visa.