Khan (Migration)

This matter concerned an application for review of a decision to refuse a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa. The applicant, Mr Khan, sought to challenge the Tribunal's affirmation of the delegate's decision to refuse his visa application.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause mandates that an applicant must provide evidence of having undertaken a specified language test, achieving the required score within a specified period, and in accordance with any specified requirements. The Tribunal also considered whether the applicant met an alternative criterion relating to holding a specified passport.

The Tribunal reasoned that the applicant had not met the passport criterion. Regarding the English language proficiency requirement, the applicant had provided a test result from 28 May 2017, which showed a score of 48, below the minimum requirement of 50. Although the applicant later provided a test result from 4 July 2019, achieving the minimum score of 50, this test was undertaken after the visa application was lodged on 19 February 2019. Crucially, the Tribunal found that the applicant had not achieved the minimum score in an approved English language test within the 36 months immediately preceding the application date, as required by the relevant instrument. The Tribunal acknowledged the applicant's submissions regarding his lack of awareness of the scoring system and his subsequent difficulties, but concluded that the temporal requirement of clause 485.212 had not been met.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 485 visa, as he did not satisfy the criteria for its grant.