The (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an applicant's eligibility for a Skilled (Provisional) (Class VC) visa, Subclass 485, in the Graduate Work stream. The primary dispute centred on whether the applicant had satisfied the visa's criteria, specifically regarding a skills assessment and English language proficiency. The delegate had initially refused the visa, finding that the applicant had not obtained a skills assessment prior to her application.

The Tribunal was required to determine if the applicant met the requirements of clause 485.212 of the Migration Regulations 1994, which mandates evidence of either undertaking a specified English language test with a required score within a specified period, or holding a passport from certain countries. The Tribunal also considered whether the applicant's failure to meet these criteria was a fatal flaw to her application, and if any discretion was available to it.

The Tribunal reasoned that the applicant had not provided evidence of undertaking a specified English language test within the three years prior to her application, nor did she hold a passport from the United Kingdom, the United States of America, Canada, New Zealand, or the Republic of Ireland, as required by the relevant instrument, IMMI 15/062. Although the applicant possessed advanced academic qualifications demonstrating a high level of English competency, the Tribunal found that the criteria in clause 485.212 were mandatory and that no discretion existed to overlook these requirements. Consequently, the Tribunal affirmed the delegate's decision.