Ng'ang'a (Migration)

The applicant, a citizen of Kenya, sought review of a decision to refuse her application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The dispute centred on whether the applicant met the English language proficiency requirement stipulated by clause 485.212 of Schedule 2 to the Migration Regulations 1994. The Tribunal, constituted by Member Nicola Findson, was tasked with determining if the applicant had provided evidence of undertaking a specified English language test and achieving the required score within the prescribed period prior to lodging her visa application.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 485.212(a), which mandates that a visa application must be accompanied by evidence of undertaking a specified language test and achieving the required score within a specified period. The relevant instrument, IMMI15/062, stipulated that this test must have been undertaken within the three years immediately preceding the visa application lodgement. The applicant had provided an IELTS test report form, but this test was undertaken after the visa application was lodged. The Tribunal also considered clause 485.212(b), which relates to holding a specified passport, but found no evidence that the applicant met this criterion.

The Tribunal reasoned that the English language requirement under clause 485.212(a) was a mandatory criterion that could not be waived. It noted that the applicant's IELTS test was conducted after the visa application was lodged, meaning she had not met the requirement of undertaking the test within the three-year period prior to lodgement. Despite the applicant's explanation regarding difficulties in securing an early test date and her intention to demonstrate transparency, the Tribunal found that the timing of the test was critical and that there was no discretion to overlook this deficiency.

Consequently, the Tribunal concluded that the applicant failed to satisfy the criteria for the grant of a Subclass 485 visa as she did not meet the mandatory English language proficiency requirement. Accordingly, the decision under review to refuse the visa was affirmed.