KOMAKECH (Migration)

The Administrative Appeals Tribunal considered the case of Komakech, an applicant for a Skilled (Provisional) (Class VC) visa, subclass 485. The central dispute concerned whether the applicant met the English language proficiency requirements stipulated by clause 485.212 of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant had provided evidence with their visa application that they had undertaken a specified English language test and achieved the required score within the period specified by the relevant instrument, IMMI 15/062. This instrument specifies that the test must have been undertaken within the three years prior to the visa application being lodged. The Tribunal also considered whether the applicant met an alternative criterion related to holding a specified passport, which was not met.

The Tribunal reasoned that while the applicant had undertaken an International English Language Test System (IELTS) test and achieved the specified score, this test was completed after the visa application was lodged. Clause 485.212(a) requires that the evidence of the test be submitted *with* the application and that the test itself must have been undertaken within the specified three-year period preceding the application. The Tribunal noted that it had no discretion to waive this requirement.

Consequently, the Tribunal concluded that the applicant did not satisfy the requirements of clause 485.212 and therefore did not meet the criteria for the grant of a subclass 485 visa. The decision under review, which affirmed the refusal of the visa, was affirmed.