Ukhnaa (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The central dispute revolved around the applicant's English language proficiency, specifically whether the evidence provided met the requirements of the Migration Regulations. The applicant claimed to have been advised by a former agent that she could obtain the required test score after lodging her application.

The legal issue before the Tribunal was to determine if the applicant satisfied clause 485.212 of Schedule 2 to the Migration Regulations. This clause mandates that an application for a Subclass 485 visa must be accompanied by evidence of having undertaken a specified English language test within a specified period and achieved a specified score, or by evidence of holding a passport from a specified country. The Tribunal also had to consider whether there was any discretion to waive the requirement for the test to be undertaken and evidenced prior to or at the time of application.

The Tribunal reasoned that the applicant did not meet the requirements of clause 485.212(b) as she did not hold a passport from the United Kingdom, the United States of America, Canada, New Zealand, or the Republic of Ireland. Therefore, she was required to satisfy clause 485.212(a). While the applicant had undertaken an English language test on 2 September 2019, prior to lodging her application, the evidence of this test was not provided at lodgement, and the score achieved (44 overall) did not meet the minimum requirement of 50. A subsequent test undertaken on 14 December 2019, after the application was lodged, did achieve the minimum score of 50. However, the Tribunal found that the regulations did not permit a waiver of the requirement that the test be undertaken and evidenced within the specified period, which included the time of application lodgement.

Consequently, the Tribunal concluded that the applicant did not meet the criteria for the grant of a Subclass 485 visa. The decision under review, which affirmed the refusal of the visa, was therefore affirmed.