Weerasekera (Migration)

This matter concerned an appeal by an applicant, Mr Weerasekera, against a decision to refuse him a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The appeal was heard by the Tribunal, with Nicola Findson presiding.

The central legal issue before the Tribunal was whether the applicant satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause requires an applicant for a Subclass 485 visa to provide evidence that they have undertaken a specified English language test within a specified period and achieved the required score, or that they hold a passport of a specified type. The relevant instrument, IMMI 15/062, specified the English language tests, required scores, and the relevant period.

The Tribunal found that the applicant did not meet the alternative requirement of holding a specified passport. Regarding the English language competency requirement, the Tribunal noted that the applicant had provided an IELTS test report form dated 10 February 2018. However, the visa application had been lodged prior to this test being taken. The Tribunal explained that clause 485.212 requires the test to have been undertaken within the three-year period immediately preceding the lodgement of the visa application. As the applicant's IELTS test was taken after the application was lodged, it did not fall within the specified period. The Tribunal concluded that it had no discretion to waive this requirement and was therefore not satisfied that the applicant met the criteria for the visa. Consequently, the Tribunal affirmed the delegate's decision not to grant the visa.