Domaniuk (Migration)

The Administrative Appeals Tribunal (AAT) considered the application of Mr Domaniuk for a Temporary Graduate visa (subclass 485). Mr Domaniuk sought review of the delegate's decision to refuse his visa application. The primary ground for refusal was that the application was not accompanied by the required evidence of English language proficiency at the time of lodgement.

The Tribunal was required to determine whether the delegate had erred in refusing the visa application on the basis that the applicant failed to provide the necessary English language proficiency evidence. Specifically, the Tribunal had to consider whether there was any discretion available to the delegate to overlook this deficiency, or whether the requirement was mandatory and absolute. The Tribunal also considered the implications of the Minister's decision to decline to intervene in the matter.

The Tribunal affirmed the delegate's decision, finding that the requirement for evidence of English language proficiency for a subclass 485 visa is a mandatory criterion that must be satisfied at the time of application. The Tribunal noted that the relevant legislation and regulations did not confer any discretion on the delegate to accept a late-lodged or absent English language proficiency test result. Consequently, as Mr Domaniuk failed to meet this essential requirement, his application was validly refused. The Tribunal also noted that the Minister's decision not to exercise the non-compellable power of intervention did not alter the legal position.