Poudel (Migration)

This matter concerns an appeal by Mr Poudel to the Administrative Appeals Tribunal regarding the refusal of his application for a 485 Temporary Graduate Post Study work stream visa. The delegate refused the visa on the grounds that Mr Poudel failed to meet the English language requirements as stipulated by Clause 485.212 of the relevant regulations.

The primary legal issue before the Tribunal was whether Mr Poudel satisfied the English language proficiency requirement for the 485 visa at the time of lodging his application. Specifically, the Tribunal had to determine if the evidence provided by Mr Poudel demonstrated he had achieved the minimum required score in a specified English language test within the three years prior to his application date.

The Tribunal reasoned that to satisfy Clause 485.212(a)(2), an applicant must provide evidence of achieving a minimum overall score of 50 in a PTE academic test. Mr Poudel's PTE academic report, dated 16 December 2019, showed an overall score of 46, which was below the required threshold. The Tribunal also noted that Mr Poudel did not provide evidence of holding a passport from a specified country to demonstrate competent English. The Tribunal further held that a subsequent PTE test taken on 19 October 2020, which achieved a score of 55, could not be considered as it was taken after the application lodgement date of 27 December 2019. The Tribunal acknowledged Mr Poudel's submissions regarding his lack of knowledge of migration law and the potential benefit of a visa to Australia, but concluded these factors did not alter the mandatory nature of the English language requirement at the time of application.