HARDEEP KAUR (Migration)

This matter concerned an appeal by Hardeep Kaur against a decision to refuse her application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The dispute centred on whether the applicant met the English language proficiency requirements stipulated by the relevant regulations.

The primary legal issue before the Tribunal was to determine 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 language test within a specified period and achieving a specified score, or alternatively, holding a passport of a type specified by the Minister.

The Tribunal reasoned that the applicant did not meet the alternative requirement under clause 485.212(b) as she did not hold a specified type of passport. Consequently, the applicant was required to satisfy clause 485.212(a). While the applicant provided evidence of a PTE Academic test taken on 23 August 2017 with a score of 58, which met the minimum score requirement of 50, this test was taken after the visa application was lodged. The relevant instrument, IMMI 15/062, specifies that the test must have been undertaken within the 36 months prior to the visa application. The applicant's earlier test on 2 September 2016, while within the 36-month period, achieved a score of only 43, which was below the minimum requirement. Therefore, the Tribunal concluded that the applicant had not met the criteria for the grant of the visa.

The Tribunal affirmed the decisions not to grant the applicant the Skilled (Provisional) (Class VC) visa.