Zaidi (Migration)

This matter concerned an appeal by an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485, against a decision not to grant the visa. The appeal was heard by the Administrative Appeals Tribunal.

The primary 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 to provide evidence of having undertaken an approved English language test and achieved a specified score within a prescribed period, or to hold a specified passport.

The Tribunal found that the applicant did not meet the requirements of clause 485.212(b) as she did not hold a specified passport. Regarding clause 485.212(a), the applicant lodged her visa application on 29 January 2019 and subsequently uploaded an English language test result dated 19 February 2019. The Tribunal noted that this test was undertaken after the visa application was lodged and therefore did not satisfy the requirement that the test be undertaken within the 36 months immediately preceding the date of application, as stipulated by the relevant instrument, IMMI 15/062. The Tribunal acknowledged the applicant's explanation that she believed she could upload the test results later and that she had made an honest mistake due to a lack of professional migration advice. However, the Tribunal emphasised that the temporal requirement within clause 485.212 was not met.

Consequently, the Tribunal affirmed the delegate's decision not to grant the visa, as the applicant failed to satisfy the criteria for the Subclass 485 visa.