Domey (Migration)

The Administrative Appeals Tribunal reviewed a decision to refuse a Skilled (Provisional) (Class VC) visa, Subclass 485, to Mr George Efovi Domey and his family members. The primary issue was whether the applicant met the English language proficiency requirements stipulated by clause 485.212 of Schedule 2 to the Migration Regulations 1994. The visa application was made on 12 August 2017, and the delegate had refused the visas on 9 October 2017, finding that the applicant had not demonstrated the required English language proficiency at the time of application.

The Tribunal was required to determine if the applicant satisfied clause 485.212(a), which mandates that an application be accompanied by evidence of having undertaken a specified language test, achieved the specified score within the specified period, and met any other requirements. The relevant instrument, IMMI 15/062, outlined these specifications. The applicant conceded that he had not passed an English language test within the three years prior to lodging his visa application. While he later passed a test, this occurred after the application was submitted. The Tribunal also noted that an earlier test result of 5.5 was below the specified score, and a later test, while passed, was not within the prescribed timeframe.

The Tribunal considered the applicant's submissions regarding humanitarian grounds, including concerns about safety in his home town in Ghana and issues with the teaching system there. However, the Tribunal found that it had no power to waive the temporal limitations imposed by the visa criteria. The legal principle applied was that the applicant must satisfy the specific requirements of clause 485.212(a) as they existed at the time of application. As the applicant failed to provide evidence of meeting these requirements within the stipulated timeframe, the Tribunal affirmed the delegate's decision.