SOK (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision not to grant a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The central dispute concerned whether the applicant met the English language proficiency requirements stipulated by the relevant legislative instrument.

The legal issue before the Tribunal was whether the applicant had satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause requires applicants to provide evidence of having undertaken a specified English language test and achieved the required score within a specified period, or alternatively, to hold a passport of a specified type. The Tribunal was required to determine if the applicant's PTE Academic test results met the minimum score requirements as set out in IMMI 15/062.

The Tribunal reasoned that the applicant did not meet the requirements of clause 485.212(b) as there was no evidence of holding a specified passport. Consequently, the applicant had to satisfy clause 485.212(a). The relevant instrument, IMMI 15/062, stipulated that for a PTE Academic test, a minimum score of 36 in each component and an overall score of 50 were required. The applicant's PTE Academic test report showed an overall score of 49, which was below the minimum required overall score of 50. The Tribunal noted that it had no discretion to overlook this deficiency, as the legislative instrument was clear and binding.

Accordingly, the Tribunal affirmed the decision under review, concluding that the applicant did not meet the criteria for the grant of a Subclass 485 visa due to failing to satisfy the English language requirements.