Marasinghe Arachchige (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, Temporary Graduate Work stream. The applicant sought review of a decision by the Department of Home Affairs. The Tribunal, constituted by Danielle Galvin, was required to determine whether the applicant had satisfied the timeframe requirements for the visa application, specifically concerning the provision of English language test results.

The primary legal issue before the Tribunal was whether the applicant had complied with clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause mandates that a visa application must be accompanied by evidence of either undertaking a specified language test and achieving the required score within a specified period, or holding a passport of a specified type. The relevant instrument, IMMI 15/062, specified the IELTS test as an acceptable English language test, requiring an overall band score of 6 and a minimum of 5 in each component.

The Tribunal found that the applicant had indeed undertaken an IELTS test on 28 July 2018 and achieved an overall band score of 8.5, exceeding the minimum requirements. However, the critical issue was whether this evidence accompanied the initial application to the Department. The Department had requested this evidence on 10 April 2019, but the applicant's agent failed to provide it within the stipulated 28 days, attributing this to an administrative error involving file size limitations and overseas travel. Despite this failure to provide the evidence to the Department in a timely manner, the Tribunal accepted the applicant's IELTS results as meeting the requirements of clause 485.212(a). Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant had met the criteria under clause 485.212.