Sidhu (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The applicant, a citizen of India, had applied for the visa and provided a PTE Academic Test Taker Score Report from February 2018, which did not meet the required scores. The applicant's migration agent argued that the COVID-19 pandemic had disrupted access to English language testing services, preventing the applicant from undertaking another test before the visa application was refused.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause requires an applicant to provide evidence of having undertaken a specified language test within a specified period and achieved the specified score, or to hold a passport of a type specified by the Minister. The Tribunal noted that the applicant did not meet the passport requirement and therefore had to satisfy the language testing requirement.

The Tribunal reasoned that while the Department of Home Affairs had indicated a willingness to allow additional time for applicants affected by COVID-19 disruptions to provide English language test results, the applicant had not provided evidence of having sat and achieved the appropriate score in an English language test. The notice from the Migration Institute of Australia, relied upon by the applicant's agent, stated that while additional time might be allowed, the requirement to provide evidence of having sat and achieved the appropriate score must still be met in full. As the applicant had not met this fundamental requirement, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a Subclass 485 visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa.