Thomas (Migration)

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate), made by an applicant who failed to meet the English language proficiency requirements. The dispute centred on whether the applicant had provided sufficient evidence of achieving the minimum required scores in an approved English language test within the specified timeframe.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause requires an applicant to provide evidence of undertaking a specified language test and achieving a specified score within a specified period, or holding a passport of a specified type. The Tribunal had to assess if the applicant's submitted English test results, or lack thereof, met these criteria.

The Tribunal reasoned that the applicant had not met 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 applicant had submitted results from an Occupational English Test (OET) undertaken before lodging the visa application, which did not achieve the minimum score of 'B' for each component. While the applicant later undertook a Pearson Test of English (PTE) Academic after lodging the application, this test was not submitted with the application and therefore did not satisfy the requirement of being undertaken within the specified period. The Tribunal found no discretion to waive this requirement.

Accordingly, the Tribunal affirmed the delegate's decision not to grant the applicant the Skilled (Provisional) (Class VC) visa, as the applicant failed to satisfy the essential criteria for the visa subclass.