Shrestha (Migration)

The applicant, Mr. Shrestha, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to affirm a refusal of his application for a Temporary Graduate visa (subclass 485) under the Graduate Work stream. The primary ground for refusal was that Mr. Shrestha did not meet the English language proficiency requirement. The Administrative Appeals Tribunal had previously affirmed this refusal.

The central legal issue before the Federal Circuit and Family Court of Australia was whether Mr. Shrestha had satisfied the English language proficiency requirement as stipulated by the Migration Regulations 1994. Specifically, the court had to determine if the English language test undertaken by Mr. Shrestha met the criteria that the test must be undertaken within the three years prior to the visa application being made, and if the test results were available at the time of application.

Justice McMurran found that the English language test relied upon by Mr. Shrestha was undertaken after he lodged his visa application. Regulation 485.223(1)(b) of the Migration Regulations requires that the applicant demonstrate English language proficiency by undertaking a prescribed test, and that this test must have been undertaken within the three years immediately preceding the day on which the visa application was made. As the test was not undertaken within this timeframe, Mr. Shrestha failed to meet this mandatory requirement. The court affirmed the decision of the Minister.