Mustafa (Migration)

This matter concerned an appeal to the Tribunal regarding a decision to refuse a Skilled (Provisional) (Class VC) visa, subclass 485. The applicant sought to demonstrate English language proficiency as required by clause 485.212 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had satisfied clause 485.212(a), which mandates that an application for this visa must be accompanied by evidence of having undertaken a specified language test within a particular timeframe and achieved the required score. The Tribunal was required to consider the requirements of IMMI 15/062, the instrument specifying acceptable English tests, scores, and timeframes.

The Tribunal found that while the applicant had undertaken an IELTS test and achieved the minimum required scores, the test was completed on 30 March 2017, which was after the visa application was lodged on 14 March 2017. IMMI 15/062 stipulated that the test must have been undertaken within the three years immediately preceding the visa application. The Tribunal was satisfied that the applicant had not undertaken an English test on 8 March 2017 as initially indicated in his application, but had merely booked the test he sat on 30 March 2017 on that earlier date. The Tribunal concluded that it had no discretion to overlook this temporal requirement, and therefore, the applicant had failed to meet the criteria under clause 485.212(a).

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa. The Tribunal noted that the applicant could still seek ministerial intervention under section 351 of the Migration Act 1958 if compelling circumstances existed.