Shanbhag (Migration)

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, subclass 485. The applicant sought review of a decision not to grant the visa. The Tribunal was required to determine whether the applicant met the requirements of clause 485.212 of the Migration Regulations 1994, which stipulated conditions relating to English language proficiency.

The primary legal issue before the Tribunal was whether the applicant had provided sufficient evidence of English language proficiency in accordance with the relevant legislative instrument, IMMI 15/062. Specifically, the Tribunal had to consider whether the applicant had undertaken a specified language test and achieved the required score within the specified timeframe, or alternatively, held a passport from a specified country.

The Tribunal found that the applicant did not hold a passport of a type specified in IMMI 15/062, thus clause 485.212(b) was not satisfied. The Tribunal then examined clause 485.212(a), which required evidence of a specified language test with a specified score within a specified period. While the applicant had undertaken both TOEFL iBT and PTE Academic tests, and the scores achieved in these tests exceeded the minimum requirements set out in IMMI 15/062, the critical factor was the timing of these tests. The instrument stipulated that the tests must have been undertaken within the three years immediately preceding the visa application date of 25 July 2018. The applicant's TOEFL iBT test was taken on 2 March 2014, which fell outside this three-year period. Although the PTE Academic tests were taken within the relevant period, the Tribunal affirmed the decision not to grant the visa, implying that the failure to meet the timing requirement for at least one of the specified conditions was determinative.

The Tribunal affirmed the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa. However, the Tribunal noted that it remained open for the applicant to seek Ministerial intervention under section 351 of the Migration Act 1958, should their case involve unique or compelling circumstances.