Urbonaite (Migration)

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, made by Ms. Urbonaite. The dispute centred on whether the applicant met the English language proficiency requirements stipulated by the Migration Regulations.

The primary legal issue before the Tribunal was to determine if the applicant satisfied clause 485.212 of Schedule 2 to the Migration Regulations. This clause requires that an application for a Subclass 485 visa be accompanied by evidence of having undertaken a specified English language test within a prescribed period, achieving the specified score, or holding a passport of a specified type. The relevant instrument, IMMI 15/062, specified that the English language test must have been undertaken within the three years prior to the visa application being made.

The Tribunal reasoned that the applicant did not meet the requirements of clause 485.212(a) because the English language test she provided evidence of, an IELTS test taken on 23 March 2019, was undertaken after the visa application was lodged. Although the applicant's test results demonstrated a high level of English proficiency, and she also provided evidence of her educational qualifications and employment in Australia, these factors did not overcome the critical requirement that the test be completed within the specified period before the application. The Tribunal noted that it had no discretion to waive this requirement.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa, Subclass 485, as she failed to satisfy the mandatory English language proficiency criteria.