K C (Migration)

This matter concerned an application by Mr K C for a Subclass 485 Temporary Graduate (Post-Study Work) visa. The primary decision maker refused Mr K C's application on the basis that he had not provided sufficient evidence of meeting the English language proficiency requirements. Mr K C sought review of this decision by the Tribunal.

The central legal issue before the Tribunal was whether Mr K C had satisfied the requirements of clause 485.212 of the Migration Regulations 1994. This clause mandates that an applicant must provide evidence of having undertaken a specified language test within a specified period and achieved an acceptable score. For the purposes of this visa subclass, the Minister had specified the Pearson Test of English (PTE) as an approved test, requiring a minimum score of 50 within the three years preceding the application date.

The Tribunal noted that Mr K C had indicated he had undertaken an English test within the relevant timeframe. However, when requested to provide evidence, he submitted a Pearson web account confirmation, with his agent stating that test results had not been provided due to technical difficulties. Mr K C subsequently informed the Tribunal that he had sat the test but had not achieved the required score. The Tribunal reasoned that the English language requirement is a mandatory criterion that must be satisfied at the time of application. As Mr K C had not provided evidence of successfully completing an acceptable English test with the minimum required score within the specified period, he failed to satisfy regulation 485.212(a).

The Tribunal affirmed the primary decision maker's refusal of the visa application.