Sebastian (Migration)

This matter concerned an application for review of a decision to refuse a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa. The applicant, who held an Indian passport, sought to demonstrate English language proficiency as required by clause 485.212 of Schedule 2 to the Migration Regulations 1994. The Tribunal was required to determine whether the applicant had met the English language proficiency requirements for the visa.

The primary legal issue before the Tribunal was whether the applicant had satisfied clause 485.212(a), which mandates that an applicant must provide evidence of having undertaken a specified language test and achieved the required score within a period specified in the relevant instrument. The applicant had indicated on his visa application form that he had undertaken an OET test, but later informed the Department that he had arranged to undertake a Pearson Test of English Academic (PTE Academic) test. The Tribunal noted that the applicant did not meet clause 485.212(b) as he did not hold a passport of a type specified by the Minister.

The Tribunal found that the applicant had not undertaken a language test within the 36 months prior to his application, and that the PTE Academic test he did undertake on 27 May 2019 was after his visa application was lodged. The relevant instrument, IMMI 15/062, clearly stipulated that the specified English language test must have been undertaken within three years before the day the application was made. Despite the applicant achieving the necessary scores in the PTE Academic test, these results were inadmissible for the purpose of satisfying the requirement due to the timing of the test. Consequently, the Tribunal was not satisfied that the applicant had met the requirements of clause 485.212(a).

As the applicant failed to satisfy the criteria set out in clause 485.212 of Schedule 2 to the Regulations, he did not meet the requirements for the grant of a Subclass 485 visa. Accordingly, the Tribunal affirmed the decision not to grant the applicant the visa.