NWANZE (Migration)

This matter concerned an appeal by Mr Nwanze against the decision to refuse his application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The dispute centred on whether Mr Nwanze had met the English language requirement for the visa. The decision was made by the Tribunal.

The primary legal issue before the Tribunal was to determine whether Mr Nwanze satisfied clause 485.212 of Schedule 2 to the Regulations. This clause requires applicants to provide evidence of either undertaking a specified language test and achieving a certain score within a specified period, or holding a passport from a designated country. The relevant instrument, IMMI 15/062, outlines the specific tests, scores, periods, and passport types accepted.

The Tribunal reasoned that Mr Nwanze did not meet the alternative requirement of holding a passport from the United Kingdom, United States of America, Canada, New Zealand, or the Republic of Ireland, as he was a national of Nigeria and provided no evidence to the contrary. Therefore, he was required to satisfy the English language test requirement under clause 485.212(a). The Tribunal noted that Mr Nwanze had indicated "No" to having met the English language requirement on his visa application form, both in response to a general question about holding a relevant passport or having undertaken a test, and in a specific question about undertaking a test within the last three years. He lodged evidence of an IELTS test on 12 August 2017, which was two days after his visa application was lodged, and therefore outside the specified period of three years prior to lodgement. Mr Nwanze explained this was due to a misunderstanding of advice received from his education provider and a registered migration agent regarding the timing of his Student visa cessation. The Tribunal acknowledged that Mr Nwanze did not have the benefit of competent professional advice at the time of lodging his application.

The Tribunal affirmed the decisions not to grant Mr Nwanze a Skilled (Provisional) (Class VC) visa.