Riyadh (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision concerning a Skilled (Provisional) (Class VC) visa, subclass 485. The applicant's eligibility for this visa was contingent on meeting specific English language proficiency requirements as stipulated in clause 485.212 of the Migration Regulations 1994 and the instrument IMMI 15/062. The core of the dispute revolved around whether the applicant had provided sufficient evidence of meeting these requirements at the time of his visa application.

The Tribunal was required to determine whether the applicant satisfied clause 485.212, which necessitates either holding a specified passport or providing evidence of having undertaken a specified English language test within a specified period and achieving a specified score. The applicant did not hold a passport of a specified type, meaning he had to satisfy the English language test requirement. The Tribunal had to ascertain if the English test undertaken by the applicant met the criteria regarding the type of test, the score achieved, and crucially, the timeframe within which the test was completed relative to the visa application date.

The Tribunal found that while the applicant had undertaken an IELTS test on 3 June 2017 and achieved an overall band score of 7.5, which exceeded the minimum requirements of IMMI 15/062, the test was not undertaken within the specified period. IMMI 15/062 stipulated that the English test must have been undertaken within the three years prior to the visa application date of 21 March 2017. As the test was taken after this period, the applicant failed to meet the requirements of clause 485.212(a). The Tribunal noted it had no discretion to waive these requirements or to consider the applicant's subsequent demonstration of high English proficiency, including his academic qualifications.

Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a subclass 485 visa. As this was the only visa subclass under consideration, the Tribunal affirmed the decision under review. The Tribunal also indicated that any recourse for the applicant, such as compensation for detriment caused by defective administration or ministerial intervention, lay outside its jurisdiction.