Nandakumar (Migration)

The applicant, Mr. Nandakumar, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate) visa. The refusal was based on the applicant's failure to meet the English language proficiency requirement.

The central legal issue before the Federal Circuit and Family Court of Australia was whether the AAT had erred in law by affirming the visa refusal. Specifically, the court had to determine if the AAT had correctly interpreted and applied the relevant legislative instrument concerning the validity period for English language test results submitted in support of a subclass 485 visa application. The applicant contended that his submitted test result, though older than 36 months prior to his application, should have been accepted.

Justice Murphy found that the legislative instrument clearly stipulated that an English language test result must have been undertaken within the 36 months immediately preceding the date of the visa application. The AAT had correctly applied this requirement and was not empowered to disregard it. Therefore, the AAT's decision was not affected by any error of law.

The application for judicial review was dismissed.