EHTEDAEI (Migration)

This matter concerned an appeal to the Tribunal by an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485, against a delegate's decision to refuse their application. The applicant sought to demonstrate that they met the requirements of clause 485.212 of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had satisfied clause 485.212, which requires evidence of either undertaking a specified language test within a specified period and achieving a specified score, or holding a specified type of passport. The Tribunal was required to determine if the applicant's English language proficiency evidence met the criteria set out in IMMI 15/062, specifically concerning the timing of the language test.

The Tribunal reasoned that the applicant did not meet the requirements of clause 485.212(b) as they did not hold a specified passport. Therefore, the applicant had to satisfy clause 485.212(a). While the applicant had provided evidence of IELTS test reports with the required scores, the critical factor was that these tests were not undertaken within the three years immediately preceding the date of application, as mandated by IMMI 15/062. The applicant acknowledged this failure, attributing it to personal circumstances and a misunderstanding of the application process and available advice.

Consequently, the Tribunal concluded that the applicant did not meet the essential criteria for the grant of a Subclass 485 visa. The decision under review was affirmed.