Tshering (Migration)

This matter concerned an application for review of a decision to refuse a Skilled (Provisional) (Class VC) visa, Subclass 485. The applicant, a citizen of Bhutan, sought to demonstrate that they met the English language requirement for the visa. The Tribunal was required to determine whether the applicant had satisfied the relevant legislative criteria for the visa.

The central legal issue before the Tribunal was whether the applicant had complied with clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause requires that an application for a Subclass 485 visa be accompanied by evidence of either holding a specified passport or having undertaken a specified English language test within a prescribed period and achieving the required score. The Tribunal also considered the specifications outlined in IMMI 15/062, which details the accepted language tests, scores, periods, and passport types.

The Tribunal found that the applicant did not hold a passport of a specified type, thus failing to meet subclause 485.212(b). Consequently, the applicant was required to satisfy subclause 485.212(a). The evidence indicated that the applicant had declared on their online application that they met the English language requirement, but failed to provide the necessary documentation at that time. Despite a request from the Department for this evidence, the applicant did not respond. Crucially, the English language test the applicant later provided evidence of having paid for was undertaken after the visa application date, and the applicant confirmed they had not undertaken a specified test within the three years prior to their application. The Tribunal noted the applicant's explanation that they believed their previous study qualifications met the requirement and that personal illness had caused delays in providing other requested information.

Based on these findings, the Tribunal concluded that the applicant did not meet the requirements of clause 485.212. As this was the sole basis for the visa refusal and the only relevant subclass, the Tribunal affirmed the decisions not to grant the Skilled (Provisional) (Class VC) visa.