Eneji (Migration)

This matter concerned an appeal by an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate), against a delegate's decision to refuse the visa. The applicant had lodged an application for the visa on 19 April 2017, declaring completion of an IELTS test on 25 March 2017. The delegate's verification indicated an overall IELTS score of 5.5, which was below the required score of 6.0. The Administrative Appeals Tribunal was tasked with determining whether the applicant met the visa criteria.

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 an applicant to provide evidence of having undertaken a specified English language test and achieved the required score within a specified period, or to hold a specified type of passport. The Tribunal considered whether the applicant met either limb of this clause.

The Tribunal reasoned that the applicant did not meet the passport requirement under clause 485.212(b). Consequently, the focus shifted to clause 485.212(a), which pertains to English language proficiency. The applicant acknowledged that he had not achieved the required overall score of 6.0 in his IELTS test and had been unable to do so in subsequent attempts. The Tribunal emphasised that the English language requirement under clause 485.212 is a "time of application" requirement, meaning the evidence of meeting this criterion must have accompanied the visa application. Despite submissions from the applicant's advisor regarding the applicant's English speaking ability and academic qualifications, no evidence was presented to demonstrate satisfaction of the English skills requirement as at 19 April 2017.

Accordingly, the Tribunal found that the applicant failed to satisfy clause 485.212(a)(ii) and, as this was the sole criterion for the Subclass 485 visa in this case, the applicant did not meet the requirements for the grant of the visa. The Tribunal affirmed the delegate's decision not to grant the visa.