Gupta (Migration)

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Graduate Temporary). The applicant sought review of a decision not to grant the visa. The core of the dispute centred on whether the applicant had met the English language proficiency requirements stipulated by the relevant legislation and associated instruments.

The Tribunal was required to determine if the applicant satisfied clause 485.212 of the Migration Regulations. This clause mandates that an application for this visa must be accompanied by evidence of either undertaking a specified language test and achieving the required score within a specified period, or holding a passport of a type specified by the Minister. The Tribunal also had to consider the relevant instrument, IMMI 15/062, which detailed the acceptable language tests, scores, timeframes, and passport types.

In its reasoning, the Tribunal found that the applicant did not meet the alternative requirement of holding a specified passport. Regarding the language proficiency requirement, the applicant had undertaken an IELTS test after the visa application date, which did not comply with the specified timeframe. While the applicant provided a TOEFL iBT score from 2015 and argued that not undertaking the English language test earlier was an oversight, the Tribunal was not satisfied that the applicant had undertaken a language test specified in the instrument, or achieved the required score within the specified period. Consequently, the Tribunal concluded that the applicant failed to satisfy clause 485.212(a).

As the applicant did not meet the criteria under clause 485.212, and this was the only relevant subclass in question, the Tribunal affirmed the original decision not to grant the visa.