Sapkota (Migration)

The Administrative Appeals Tribunal (AAT) considered an appeal by Mr Sapkota concerning the refusal of his Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa. The primary dispute revolved around Mr Sapkota's failure to provide evidence of English language proficiency at the time of his visa application. The Department of Home Affairs had refused the application on this basis.

The AAT was required to determine whether the applicant had met the English language proficiency requirement for the Subclass 485 visa. Specifically, the Tribunal had to consider whether the circumstances surrounding the applicant's inability to undertake the required English language test, including the impact of the COVID-19 pandemic on test availability and the logistical challenges faced by the applicant, could justify an exception or a different approach to the assessment of this criterion.

The Tribunal acknowledged the significant difficulties applicants faced in undertaking English language tests during the COVID-19 pandemic, including a surge in bookings and limited availability of test dates, particularly for those residing in regional areas who had to travel to undertake the test. The AAT noted that the Department had previously allowed applications to proceed without immediate English test results in certain circumstances. Applying these considerations, the Tribunal found that the applicant had demonstrated a genuine effort to meet the requirement and that the circumstances warranted a favourable view. The decision under review was affirmed.