Liu (Migration)

This matter concerned an appeal by an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485, to the Administrative Appeals Tribunal. The applicant sought to have set aside a decision affirming the refusal of her visa application.

The central legal issue before the Tribunal was whether the applicant had 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 that the applicant has undertaken an approved English language test within a specified period and achieved a specified score. The applicant did not meet the alternative criterion of holding a specified passport.

The Tribunal reasoned that the applicant lodged her visa application on 8 January 2020 but undertook the IELTS test on 1 March 2020, with the result provided to the department thereafter. Clause 485.212(a) requires the test to have been undertaken within the 36 months immediately before the date of visa application. The applicant conceded that the test was taken after the application was lodged and that she had not undertaken an approved English language test within the 36 months prior to her application. While acknowledging the applicant's high score and her misunderstanding of the temporal requirement, the Tribunal held that it was bound to apply the regulation as written and that there was no power to waive or overlook the clear temporal requirement.

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.