Pandey (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Pandey, who sought review of a decision not to grant him a Temporary Business Entry (Class UC) visa. The dispute centred on Mr. Pandey's failure to meet the English language proficiency requirements stipulated for the standard business sponsor stream of this visa subclass.

The primary legal issue before the Tribunal was whether Mr. Pandey satisfied the English language requirements as set out in subclause 457.223(4)(eb) of the relevant legislative instrument. This subclause mandates that an applicant, unless exempt, must achieve a specified score in a designated English language test, in a single attempt and within a specified timeframe.

The Tribunal reasoned that Mr. Pandey had not met the requirements of subclause 457.223(4)(eb)(v). Despite undertaking numerous English language tests, including IELTS and PTE, on approximately 20 occasions, Mr. Pandey conceded that he had been unable to achieve the required score in a single attempt. The Tribunal noted that there was no evidence demonstrating that he had undertaken a test specified by the Minister in the relevant legislative instrument and achieved the requisite score within the specified period. Consequently, the Tribunal affirmed the decision not to grant the visa. However, acknowledging Mr. Pandey's circumstances, including claims of abuse in a previous workplace and his job skills, experience, and references, the Tribunal referred the matter to the Minister for consideration under section 351 of the Migration Act 1958 (Cth) for a potential substitution decision in the public interest.