Kumar (Migration)

This matter concerned an application for review of a decision to refuse a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The applicant sought to challenge the delegate's decision that he did not meet the English language proficiency requirements for the visa. The review was heard by Bridget Cullen, a Member of the Tribunal.

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 an application for a Subclass 485 visa be accompanied by evidence of having undertaken a specified language test, achieved the specified score within a specified period, and met any specified requirements. Alternatively, the applicant could satisfy the clause by holding a passport of a specified type.

The Tribunal reasoned that the applicant did not meet the alternative criterion under clause 485.212(b) as he did not hold a specified type of passport. Therefore, he was required to satisfy clause 485.212(a). At the time of application on 12 March 2019, the applicant submitted an IELTS Test Taker Score Report showing an overall score of 5.5, which was below the minimum required score of 6. While the applicant later submitted a Pearson PTE Academic Test Taker Score Report dated 11 June 2019 with a score of 53 (above the minimum of 50), the Tribunal determined that this subsequent test did not satisfy the requirement that the test be completed within the relevant timeframe specified in IMMI 15/062. The Tribunal indicated that clause 485.212(a) was a "time of application" criterion, and the applicant confirmed he had not completed any other English tests within the specified period.

Consequently, the Tribunal concluded 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 was affirmed.