YADAV (Migration)

The Administrative Appeals Tribunal considered an application for review by an applicant seeking a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The dispute centred on whether the applicant met the eligibility requirements for the visa, specifically concerning English language proficiency.

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 an applicant to have undertaken a specified language test and achieved the required score within a specified period, or to hold a passport of a specified type. The applicant conceded that he had not undertaken the required language test within the specified period prior to lodging his application and did not hold a specified passport.

The Tribunal reasoned that the applicant had failed to meet the mandatory requirements of clause 485.212. While the applicant explained that he lodged his application in haste due to his expiring student visa and subsequently undertook a language test, this test was not completed within the period stipulated by the regulations. The Tribunal noted that it lacked the discretion to consider mitigating circumstances such as the difficulty of arranging a test or the potential career impact of visa refusal. Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for the visa.

The Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa.