Lepcha (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, subclass 485, made by the applicant. The applicant sought review of a decision not to grant the visa. The Tribunal was required to determine whether the applicant met the requirements of clause 485.212 of the Migration Regulations 1994.

The central legal issue was whether the applicant had provided sufficient evidence of English language proficiency in accordance with the requirements of clause 485.212(a) and the specifying instrument, IMMI 15/062. This clause requires that an applicant demonstrate they have undertaken a specified language test and achieved the required score within a specified period. The applicant also raised questions regarding the fairness and transparency of the Department's process, including the requirement to demonstrate English proficiency despite holding a Master's qualification and the inability to provide further evidence after the application was lodged.

The Tribunal considered the applicant's submission that they had undertaken IELTS tests on 5 April 2014 and 24 March 2018, achieving the required scores. However, the Tribunal noted that IMMI 15/062 specifies that the English language test must have been undertaken within the three years immediately preceding the date of the visa application. As neither of the applicant's tests fell within this three-year period, the Tribunal concluded that the applicant had not satisfied the requirements of clause 485.212(a). The Tribunal also found that the applicant did not meet the alternative requirement under clause 485.212(b), which relates to holding a specified passport.

Consequently, the Tribunal affirmed the decision not to grant the Skilled (Provisional) (Class VC) visa to the applicant. As the secondary applicant's application was dependent on the primary applicant meeting the visa requirements, their application was also affirmed.