Kooaroon (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision not to grant a Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate). The applicant, who held a Thai passport, did not meet the criteria for the visa, specifically concerning English language proficiency.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause requires that a visa application be accompanied by evidence of either holding a specified passport or having undertaken a specified English language test within three years prior to the application and achieving a specified score. The Tribunal also considered whether there was any discretion to waive this requirement, particularly in light of the applicant's claim that he was advised he could undertake the test after lodging his application.

The Tribunal found that the applicant did not hold a passport of the type specified in the relevant instrument (IMMI 15/062). Furthermore, while the applicant did provide an IELTS test report with a score exceeding the minimum requirement, this test was undertaken and the results attained after the visa application was lodged on 8 October 2019. The relevant instrument required the test to be undertaken within the three years immediately preceding the application. The Tribunal concluded that there was no discretion to waive this requirement and that the evidence of the English language test did not accompany the application as required.

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