Sidhu (Migration)

The Administrative Appeals Tribunal considered the case of Sidhu, concerning an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The applicant sought review of a decision not to grant her and her secondary applicant family members this visa.

The central legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 485.212 of the Migration Regulations 1994. This clause mandates that an applicant must provide evidence of having undertaken a specified language test and achieved a specified score within a specified period, or alternatively, hold a passport from a designated country.

The Tribunal found that the applicant did not hold a passport from one of the specified countries, thus failing to meet the alternative criterion under clause 485.212(b). Consequently, the applicant was required to satisfy clause 485.212(a). The applicant had submitted results from a PTE Academic test taken on 1 March 2017, achieving an Overall Score of 49. However, the relevant legislative instrument, IMMI 15/062, stipulated a minimum Overall Score of 50 for this test. The applicant argued that she had received incorrect advice from her agent regarding the required score, believing she only needed to achieve a score of 6 in each section, similar to IELTS requirements. Despite the applicant's submission that she had taken a further test on 8 April 2018, the Tribunal noted that any subsequent test results could not alter the outcome of the review concerning the original application. The Tribunal also considered the possibility of a rescore of the March 2017 test, granting the applicant a short extension to investigate this, but ultimately concluded that the applicant had not met the English language proficiency requirement.

As the primary applicant failed to satisfy the criteria for the grant of the visa, the Tribunal affirmed the decisions not to grant the Skilled (Provisional) (Class VC) visas to the applicant and the secondary applicants.