Puthenpurackal Antony (Migration)

The Federal Circuit and Family Court considered an appeal concerning a Skilled (Provisional) (Class VC) visa, subclass 485. The primary dispute revolved around whether the applicant had satisfied the English language requirement as stipulated by clause 485.212 of Schedule 2 to the Migration Regulations 1994. The applicant had submitted an IELTS test result from 16 August 2014 with her visa application lodged on 25 August 2017.

The central legal issue before the Tribunal was to determine if the applicant had met the requirements of clause 485.212(a), which mandates that an applicant must have undertaken a specified language test and achieved the required score within a specified period. Specifically, the Tribunal had to consider whether the IELTS test undertaken by the applicant on 16 August 2014 was valid, given that the relevant instrument, IMMI 15/062, specified that the test must have been undertaken within the three years immediately prior to the visa application date.

The Tribunal, applying the reasoning from *Shine v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 132*, concluded that item 4 of IMMI 15/062, which imposed a three-year time limit for undertaking the test, was beyond the legislative power. Consequently, the Tribunal interpreted clause 485.212(a) as requiring the applicant to have achieved the specified IELTS scores within the three years immediately before lodging her application. As the applicant's IELTS scores were obtained on 27 August 2014 and her application was lodged on 25 August 2017, the Tribunal found that she met this requirement.

Accordingly, the Tribunal determined that the applicant had satisfied clause 485.212 of Schedule 2 to the Regulations. The matter was remitted to the Minister for reconsideration of the remaining visa criteria. The application of the second applicant, who applied as a member of the first applicant's family unit, was also to be determined by reference to the outcome of the first applicant's application.