Tobena (Migration)

This matter concerned an appeal by an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485, against a decision not to grant the visa. The applicant, a citizen of Papua New Guinea, had provided evidence of his English language proficiency through an IELTS test taken on 16 July 2019, achieving an Overall Band Score of "8". He also presented a skills assessment from Engineers Australia and a letter of support from his employer. The applicant had completed his tertiary education in Australia, obtaining Bachelor's Degrees in Civil Engineering and Business Management from the University of Queensland in December 2018. The appeal was heard by Bridget Cullen, a Member of the Tribunal.

The central legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause mandates that an application for a Subclass 485 visa must be accompanied by evidence of either having undertaken a specified language test and achieved a specified score within a specified period, or holding a passport of a type specified by the Minister. The Tribunal was required to determine if the applicant's submitted evidence met these criteria, particularly in relation to the timing of his IELTS test.

The Tribunal noted that the applicant did not meet the alternative criterion of holding a specified passport. Therefore, the focus was on clause 485.212(a), which requires evidence of a specified language test with a specified score achieved within a specified period, as detailed in instrument IMMI 15/062. While the applicant had provided an IELTS test report with a high score, the Tribunal found that the evidence did not demonstrate that this test was undertaken and the score achieved within the period specified by the relevant instrument. Consequently, the applicant failed to satisfy the mandatory English language proficiency requirement for the visa.

As the applicant did not meet the criteria for the grant of a Subclass 485 visa, the Tribunal affirmed the decision not to grant the visa.