Kumar (Migration)

This matter concerned an appeal by an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485, against a decision to refuse the visa. The Tribunal was required to determine whether the applicant met the requirements of clause 485.212 of Schedule 2 to the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had provided sufficient evidence of English language proficiency that met the specific temporal requirements stipulated by the regulations. Clause 485.212 requires that an application be accompanied by evidence of having undertaken a specified language test and achieved a specified score within a specified period, or by holding a specified type of passport. The applicant had not met the passport criterion, and the initial English test result submitted with the application did not meet the minimum score requirements for each category.

The Tribunal reasoned that while the applicant later provided an IELTS test result dated 30 October 2021, this result post-dated the visa application date of 6 February 2020. The Tribunal emphasised that any English language test results relied upon must have been undertaken within the 36 months prior to the application and that evidence of such a test must have accompanied the application. As the later test result was not submitted with the original application and was from a date after the application was lodged, it could not satisfy the temporal requirement or the requirement that evidence accompany the application. Consequently, the Tribunal found that the applicant had not provided evidence of meeting the English language proficiency requirements as stipulated by the regulations.

Based on these findings, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a Subclass 485 visa. Accordingly, the Tribunal affirmed the decision under review not to grant the applicant the visa.