Tan (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision to refuse a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The applicant's eligibility for the visa hinged on meeting the requirements of clause 485.212 of Schedule 2 to the Migration Regulations 1994, which pertains to English language proficiency.

The primary legal issue before the Tribunal was whether the applicant had satisfied the requirement that an English language test be undertaken "within the period specified in the instrument" before the day the visa application was made. The relevant instrument specified that the test must have been undertaken within the 36 months immediately preceding the date of application. The applicant had lodged her visa application on 20 January 2020 and uploaded results from a PTE Academic test taken on the same day, achieving a score of 85, which exceeded the minimum requirement.

The Tribunal reasoned that while the applicant's English test score met the specified standard, the temporal requirement of clause 485.212 was not satisfied. The Tribunal found that a test undertaken on the same day as the visa application was lodged did not meet the regulation's stipulation that the test must have been completed "before the day" of application. The Tribunal acknowledged the applicant's submissions regarding the timing, the global pandemic, and potential unfairness, but concluded that the specific wording of the regulation regarding the timing of the test was not met. Consequently, the Tribunal affirmed the delegate's decision.