Feraud (Migration)

This matter concerned an appeal by Mr Feraud against a decision of the Department of Home Affairs to refuse his application for a Skilled (Provisional) (Class VC) visa, specifically the post-study work stream of the Subclass 485 visa. The dispute centred on Mr Feraud's failure to provide evidence of English language proficiency at the time of his application. The decision was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Mr Feraud satisfied subclause 485.212 of the Migration Regulations 1994. This subclause requires applicants to either provide evidence of undertaking a specified language test and achieving a certain score, or to hold a passport from a specified country. The Tribunal was required to determine if Mr Feraud met either of these criteria at the time of his visa application.

The Tribunal found that Mr Feraud did not meet the requirements of subclause 485.212(b) as he did not hold a passport from a specified country. Furthermore, he had not provided evidence of undertaking an English language test at the time of his application, failing subclause 485.212(a). However, the Tribunal noted that Mr Feraud presented as an articulate and truthful witness with excellent English communication skills, having lived and worked extensively in English-speaking countries and being involved in significant research. Crucially, the Tribunal was satisfied that information provided to Mr Feraud by a Departmental staff member contributed to his failure to provide the required English test results.

Despite affirming the Department's decision to refuse the visa, the Tribunal recommended that the Minister consider intervening under section 351 of the Migration Act 1958. This recommendation was based on the unique and exceptional circumstances of the case, including the potential economic and scientific benefit Mr Feraud could bring to Australia, and the Department's role in the applicant's omission.