Pathak (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate). The dispute centred on whether the applicant met the English language proficiency requirements stipulated by the Migration Regulations.

The primary legal issue before the Tribunal was to determine if the applicant satisfied clause 485.212 of the Migration Regulations, which mandates that an applicant for a subclass 485 visa must provide evidence of having undertaken a specified language test and achieved the required score within a specified period. The Tribunal also considered whether any exceptions applied, specifically clauses 485.232 and 485.233, which relate to second subclass 485 visa applications, and whether unique and exceptional circumstances warranted Ministerial intervention.

The Tribunal found that the applicant's PTE Academic English test results, while demonstrating the required scores, were undertaken on 27 July 2022, which was after the visa application was lodged on 21 September 2021. Crucially, the test was not undertaken within the 3-year period prior to the visa application date, as required by item 4 of IMMI 15/062, the relevant legislative instrument. As the applicant had not made a previous subclass 485 visa application, clauses 485.232 and 485.233 were not applicable. Despite the applicant not meeting the English language proficiency requirement, the Tribunal was satisfied that the circumstances of the case constituted unique and exceptional circumstances warranting consideration by the Minister under section 351 of the Migration Act 1958, and accordingly referred the case to the Minister.

The Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa.