Gautam (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister to refuse a Temporary Graduate visa (subclass 485) to the applicant, an Indian citizen. The refusal was based on the applicant's failure to provide evidence of English language proficiency through a test undertaken within three years prior to the visa lodgement date. The applicant had completed a Master's degree in Australia and lodged his visa application on 18 August 2018.

The Tribunal was required to determine whether the applicant satisfied clause 485.212 of the Migration Regulations 1994. This clause mandates that an applicant must provide evidence of either having undertaken a specified English language test with a required score within a specified period, or holding a passport from a specified country. The relevant instrument, IMMI 15/062, stipulated that the English language test must have been undertaken within three years prior to the visa lodgement.

The Tribunal found that the applicant did not meet the criteria under clause 485.212(b) as he did not hold a passport from a specified country. Regarding clause 485.212(a), the applicant claimed to have undertaken an IELTS test on 6 August 2018, but later clarified that the actual test date was 27 March 2015, which fell outside the three-year validity period. While the applicant provided an explanation that he was advised by departmental officers that his previous test would suffice and that his degree was taught in English, the Tribunal noted that the regulations provided no discretion regarding the timeframe for the English language test. The applicant's submission that he was advised to upload a letter from his university confirming English as the medium of instruction was also insufficient to overcome the explicit regulatory requirement.

Consequently, the Tribunal concluded that the applicant did not meet the requirements of clause 485.212 of the Regulations and therefore did not satisfy the criteria for the grant of a Subclass 485 visa. The Tribunal affirmed the delegate's decision to refuse the visa.