MIGRATION - Skilled (Provisional) (Class VC) visa - Subclass 485 (Temporary Graduate) - English language proficiency - approved test not undertaken within 36 months before application made - booked test cancelled by provider - COVID restrictions and health guidance, and operation reasons - additional cancellations and test successfully undertaken after application made - decision under review affirmed

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 485.212(1)(a)

Baig v MIBP [2018] FCCA 2986

George v MICMSMA [2020] FCCA 2161

Imran (Migration) [2024] AATA 3475

Khanal (Migration) [2025] ARTA 104

1. This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant applied for the visa on 30 June 2023. Visa Class VC contains Subclass 485. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by the applicant.
3. The delegate refused the visa on 12 September 2023 because the applicant did not have the required English language proficiency.
4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing on 6 January 2026.
5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

1. The issue in the present case is whether the applicant satisfies cl 485.212. Clause 485.212(1) requires that the application was accompanied by evidence that:
   • the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl 485.212(1)(a)); or
   • the applicant holds a passport of a type specified by the Minister in an instrument (cl 485.212(1)(b)).
2. Clause 485.212(1) does not apply to an applicant who meets the requirements of cl 485.232, 485.233, 485.234, or 485.235 or has nominated the Replacement stream in the application: cl 485.212(2).
3. The delegate accepted that Ms Santos de Andrade lodged a valid application on 30 June 2023 for a Temporary Graduate (Graduate Work stream) visa (Class VC, subclass 485). However, when assessing the application on 12 September 2023, the delegate noted that Ms de Andrade had declared that she had not undertaken an English test in the previous 36 months and that no test result or exempt passport was provided with the application. Departmental systems confirmed there was no evidence of an approved English test taken within 3 years before lodgement.
4. The delegate correctly recorded that the English requirement is a primary criterion that must be satisfied at the time of lodgement for the Graduate Work stream, and that Ms Santos de Andrade declared "No" to the question "Has the applicant undertaken an English test in the last 36 months?".
5. The delegate also correctly recorded she did not provide evidence of holding a passport of a type specified by the Minister, and therefore did not satisfy reg 485.212(b).
6. Accordingly, the delegate was not satisfied that Ms Andrade met clause 485.212, refused the application, and recorded that because 485.212 was not met, the application was not assessed further against other subclass requirements.
7. In submissions dated 29 December 2025, the review applicant's representative put to the Tribunal that:
   1. Ms Santos de Andrade made a booking for an English language test for 23 June 2023, which was cancelled by the provider due to COVID-19 lockdowns/health guidance (and other operational reasons).
   2. There were additional cancellations from July 2023 - after the time of lodgement and so not directly relevant to the question at hand.
8. Ms Santos de Andrade later sat the PTE Academic and obtained a score outcome on 12 March 2024 at the Navitas English Test Centre, Brisbane. The score report records: Overall 58, with Listening 60, Reading 56, Speaking 61, and Writing 55 (valid until 12 March 2026).
9. Ms Santos de Andrade states in submissions that she was aware that reg 485.212 required evidence of English at the time of application, and she made an attempt to sit the PTE before lodgement, but was impacted by test appointment disruptions and the difficulty of obtaining earlier test dates. The Tribunal notes that the additional attempts identified by her representative as evidence of repeated attempts to satisfy the criteria of reg 485.212 occurred after lodgement of her application, and that there was only one cancellation of her assessment prior to lodgement.
10. The Tribunal also notes that the completion certificate for Ms Santos de Andrade's course was issued on 25 February 2022, and that her application for a Temporary Graduate (Graduate Work stream) (subclass 485) was lodged on 30 June 2023. There has been no submission to the Tribunal why Ms Santos de Andrade was unable to schedule necessary tests during this period.
11. Ms Santos de Andrade's representative states that she was placed under acute pressure by: (a) the uncertainty created by repeated test cancellations, (b) the very high demand for English testing appointments during that period, and (c) inconsistent outcomes in practice across different case officers in the post COVID processing environment. The evidence shows she had a test booking before lodgement, then faced cancellation and subsequent rescheduling. It is the representative's submission that the combination of disrupted bookings and uncertainty reasonably contributed to significant stress and anxiety, which ultimately impeded her ability to complete the test before the application was decided.
12. It is not in dispute that Ms Santos de Andrade then sat the PTE Academic on 12 March 2024, achieving an overall score of 58 (Listening 60, Reading 56, Speaking 61, Writing 55)
13. Ms Santos de Andrade's representative brought to the Tribunal's attention previous decisions: Imran (Migration) [2024] AATA 3475; and Khanal (Migration) [2025] ARTA 104 wherein accommodation was made for delayed provision of evidence of English language proficiency due to disruptions due to COVID-19.
14. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 19/051.
15. As the applicant does not satisfy cl 485.232, 485.233, 485.234, or 485.235, and the applicant did not nominate the Replacement stream in the application, cl 485.212(1) does not apply.
16. In the present case, there is no evidence that the applicant has held a passport of a type specified, and as such cl 485.212(1)(b) is not met. As such the applicant must meet cl 485.212(1)(a).
17. The Tribunal has sympathy for the situation the applicant is in. She has studied and worked in Australia and has been one of many victims of the circumstances resulting from the COVID-19 pandemic. The Tribunal must, however, apply the law.
18. The Court held in Baig v MIBP [2018] FCCA 2986 that the language of the legislative instrument provides no scope for consideration by the Tribunal of why an English test was not undertaken within the prescribed period. In George v MICMSMA [2020] FCCA 2161 it was held that the English language testing requirement could not be satisfied on the basis an applicant had booked a test prior to lodging the visa application but had not in fact taken the test.
19. In this case the Tribunal finds that the applicant, while demonstrating that she successfully completed an acceptable English test, did not complete the test within the 3 years immediately before the day on which this application was made.
20. Therefore, the Tribunal is not satisfied that the application was accompanied by evidence that meets cl 485.212(1)(a).

1. On the basis of the above, the applicant does not meet the requirements of cl 485.212 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

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

Representative for the Applicant: Mr Hugo Cesar De Lima Bezerra (MARN: 2318062)