Hora (Migration)

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, specifically the post-study work stream (Subclass 485). The applicant sought review of a decision to affirm the refusal of their visa application. The core of the dispute centred on whether the applicant had provided sufficient evidence of English language proficiency as required by the relevant regulations.

The Tribunal was required to determine if the applicant satisfied clause 485.212 of Schedule 2 to the Migration Regulations. This clause mandates that an application for this visa must be accompanied by evidence of either having undertaken a specified language test and achieved the required score within a specified period, or holding a passport from a specified country. The relevant legislative instrument, IMMI 15/062, stipulated that English language tests must have been undertaken within three years before the date of application.

The Tribunal found that the applicant did not meet the criteria under clause 485.212(b) as there was no evidence of holding a specified passport. Regarding clause 485.212(a), the applicant provided two English language test results: one dated 7 September 2013 and another dated 26 September 2019. The Tribunal accepted the applicant's assertion that a mistake was made in a declaration regarding English proficiency. However, the earlier test result from 2013 pre-dated the application by more than three years, and the later result was obtained after the application was lodged. As IMMI 15/062 required the test to be undertaken within three years prior to the application, neither of the provided results met this requirement.

Consequently, the Tribunal concluded that the applicant did not satisfy the criteria under clause 485.212. As this was the sole relevant subclass for the application, the Tribunal affirmed the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.