Kibuu (Migration)

This matter concerned an appeal by an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate), against a decision to affirm the refusal of their visa application. The appeal was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the English language ability requirement as stipulated by clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause requires evidence of either holding a specified passport or having undertaken a specified language test within a defined period and achieving a specified score.

The Tribunal found that the applicant did not meet the passport requirement as they held a Kenyan passport, not one from the USA, UK, Canada, New Zealand, or the Republic of Ireland. Crucially, the applicant also confirmed they had not undertaken an English language test within the three years prior to making their visa application, as required by the regulations. While the applicant provided IELTS test results from tests taken after the application was lodged, and one of these achieved the specified score, the Tribunal held that there was no discretion to waive the requirement that the test must have been undertaken within the specified period before the application was made.

Consequently, the Tribunal concluded that the applicant failed to satisfy the criteria for the grant of the visa. The decision under review, which affirmed the refusal of the visa, was therefore affirmed.