LEE (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 primary dispute concerned whether the applicant met the English language proficiency requirements stipulated by the relevant migration regulations.

The Tribunal was required to determine if the applicant satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause mandates that a visa application must be accompanied by evidence of having undertaken a specified language test within a specified period and achieved a specified score, or alternatively, holding a passport of a specified type. The relevant instrument, IMMI 15/062, detailed these requirements.

The Tribunal reasoned that the applicant did not meet the alternative requirement of holding a specified passport. Therefore, the focus shifted to clause 485.212(a). While the applicant had since undertaken an IELTS test and achieved the required score, this test was completed after the visa application was lodged. The Tribunal emphasised that its role was not to assess the applicant's English language ability or tertiary education conducted in English, but strictly to determine if the application was accompanied by evidence of a test taken within the prescribed three-year period prior to lodgement. As the test was taken after lodgement, it did not satisfy the temporal requirement of the instrument.

Consequently, the Tribunal concluded that the applicant did not meet the criteria under clause 485.212. As this was the sole basis for the visa refusal and the only relevant subclass, the Tribunal affirmed the delegate's decision not to grant the applicant the Skilled (Provisional) (Class VC) visa.