Malavita Mohottalalage (Migration)

This matter concerned an application for review of a decision to affirm the refusal of a Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate). The applicant, a 33-year-old from Sri Lanka, had completed a PhD in Australia and was employed as a lecturer. The core of the dispute revolved around whether the applicant had met the English language proficiency requirements at the time of lodging her visa application.

The Tribunal was required to determine if the applicant satisfied clause 485.212 of the Migration Regulations 1994. This clause mandates that an application for this visa subclass must be accompanied by evidence of having undertaken a specified language test, achieved a specified score within a specified period, and met any specified requirements. Alternatively, the applicant could satisfy the requirement by holding a passport of a specified type.

The Tribunal found that the applicant did not hold a passport of the specified type, thus clause 485.212(b) was not met. Consequently, the applicant had to satisfy clause 485.212(a). While the applicant later provided evidence of an IELTS test taken on 14 May 2019, achieving an overall band score of 7.0, she confirmed that she had not taken the test at the time of lodging her application on 10 May 2019. The applicant argued the application form was ambiguous and that she had booked the test, but the Tribunal held that it had no discretion to overlook the requirement for evidence of the test score to accompany the application at the time of lodgement. As the applicant had not complied with clause 485.212(a) at the time of application, the Tribunal affirmed the decision not to grant the visa.