In a recent ruling, the Federal Court of Australia upheld the decision to refuse a Subclass 485 visa to an Indian applicant, emphasising the strict requirements of the Migration Act 1958.
The applicant, a 30-year-old Indian citizen, applied for the Skilled (Provisional) (Class VC) Subclass 485 visa on 14 March 2019 after completing a Master of Professional Accounting at the University of Wollongong. The application was submitted as his student visa was set to expire the following day.
However, the application faced a significant hurdle: the applicant did not meet the English language proficiency requirements stipulated under clause 485.212 of Schedule 2 to the Migration Regulations 1994. Specifically, he had not undertaken an English language test within the 36-month period prior to his visa application. Although he took the Pearson Test of English Academic (PTE Academic) on 22 March 2019, a week after his application, it did not satisfy the regulatory requirement.
The visa application was refused on 17 May 2019 by a delegate of the Minister for Immigration, a decision later affirmed by the Administrative Appeals Tribunal (AAT) on 26 November 2019. The Tribunal’s review concluded that the applicant did not fulfill the mandatory language test criteria, which required tests to be completed within three years before the visa application was lodged.
The applicant challenged the Tribunal’s decision, arguing that the Tribunal had failed to consider his reasons for the delay in taking the PTE test and had not provided him an opportunity to explain his circumstances. He contended that he was unaware his previous English test was invalid and had to rush his application to avoid his student visa expiring.
However, the Federal Court found no merit in the applicant’s arguments. The Court highlighted that the requirements of clause 485.212 are rigid and unequivocal. The Tribunal had no discretion to consider reasons for the timing of the test as the regulation’s terms were clear and inflexible.
The Court ruled that the Tribunal’s decision was consistent with the legal English test requirements, and the applicant’s reasons for the timing of his test were not relevant to the Tribunal’s determination. Consequently, the application for judicial review was dismissed.
Many students face challenges due to a lack of awareness about the rules, often encountering difficulties as a result of being misled by migration agents.
Before 21 March 2024, applicants for the Subclass 485 visa were required to demonstrate an overall IELTS score of 6.0, with no individual band score falling below 5.0, or an equivalent English proficiency test result. However, as part of a migration strategy announced by the Australian Government on 11 December 2023, new English language requirements have been introduced.
Effective from 23 March 2024, the updated criteria apply to both Subclass 485 and Subclass 476 visas. Under the new rules, applicants can qualify for the Subclass 485 visa if they hold a passport from one of the following countries: the United States of America, the Republic of Ireland, the United Kingdom, Canada, or New Zealand.
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