CHOI (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding a decision not to grant the applicant a Skilled (Provisional) (Class VC) visa, specifically a Subclass 485 (Temporary Graduate) visa. The core dispute revolved around the applicant's English language proficiency, with the delegate finding that the evidence provided did not meet the required standards.

The Tribunal was required to determine whether the applicant satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause mandates that an application for a Subclass 485 visa must be accompanied by evidence of having undertaken a specified language test within a specified period and achieved specified scores, or by evidence of holding a passport of a specified type.

The Tribunal reasoned that the applicant did not meet the passport requirement under clause 485.212(b). Therefore, the applicant had to satisfy clause 485.212(a). While the applicant had provided an Occupational English Test (OET) statement of results for a test taken before the visa application, the delegate found that the applicant had not achieved the specified score of a 'B' in each component of the OET. The Tribunal noted that the applicant later provided IELTS results and further OET results, both taken after the visa application was lodged, and a confirmation of degree completion. However, the Tribunal concluded that the evidence presented did not demonstrate compliance with the requirements of clause 485.212 at the time the visa application was made. Consequently, the Tribunal affirmed the decision not to grant the visa.