Somvangxay (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Skilled (Provisional) (Class VC) visa, specifically a Subclass 485 (Temporary Graduate) visa. The applicant sought to have the decision of the delegate affirmed by the Tribunal.

The central 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 either undertaking a specified language test and achieving a specified score within a specified period, or holding a passport from a specified country. The relevant instrument, IMMI 15/062, listed acceptable English language tests, including IELTS and PTE Academic, and specified a minimum overall IELTS score of 6, with tests needing to be undertaken within three years prior to the application date. Passports from the United Kingdom, the United States of America, Canada, New Zealand, or the Republic of Ireland were also specified.

The Tribunal found that the applicant had undertaken an IELTS test on 27 July 2019, achieving an overall score of 5.5, which did not meet the minimum requirement of 6. The applicant also provided evidence of a PTE Academic test undertaken on 7 September 2019, but this was after the application was lodged and therefore could not be considered. The applicant confirmed he had never held a passport from any of the specified countries. Consequently, the Tribunal concluded that the applicant failed to meet the requirements of clause 485.212(a) and clause 485.212(b).

As the applicant did not satisfy the criteria for the grant of the Subclass 485 visa, the Tribunal affirmed the decision under review.