da SIlva (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision to refuse a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The applicant, a citizen of Brazil, had indicated on his application that he met the English language proficiency requirement, either by holding a passport from a specified country or by undertaking an approved English language test within the preceding 36 months.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause requires that an application for a Subclass 485 visa be accompanied by evidence of either holding a passport from a specified country or having undertaken a specified language test within a specified period and achieved the required score. The Tribunal noted that the applicant did not hold a passport from one of the specified countries, meaning he had to satisfy the English language test requirement.

The Tribunal reasoned that the relevant instrument, IMMI 15/062, specified the PTE Academic test as acceptable and required an overall score of at least 50, with a minimum of 36 in each component, achieved within three years prior to the visa application. While the applicant provided a PTE Academic score report from 22 October 2021, demonstrating he met the score requirements, this test was undertaken after the visa application was lodged. The applicant explained he had applied before achieving the required score due to time constraints and believed he could complete the test during the review period. However, the regulations clearly stipulate that the test must have been undertaken within the specified period before the application was made, and there is no discretion to allow for tests taken subsequently.

Consequently, the Tribunal concluded that the applicant did not meet the requirements of clause 485.212. As this was the sole criterion for the grant of the visa in this instance, the Tribunal affirmed the delegate's decision to refuse the visa.