Outcome of Full Federal Court case – Minister for Immigration and Citizenship vs Kamal [2009] FCAFC 98

Before 21 August 2009, interpretation of Schedule 5A of the English proficiency provisions with theMigration Regulations 1994 required that English language test results be submitted with Student visa applications and that the test must have been sat no more than two years before the application was made.

In a unanimous decision of the Full Federal Court of Australia dated 21 August 2009 the Court concluded the Migration Regulations do not prevent a visa applicant from relying on the results of an International English Language Testing System (IELTS) test taken after the date of the Student visa application.

This decision does not affect Student visa applications already decided.

Student visa applicants (both onshore and offshore) may still be eligible for visa grant if they sit an IELTS test and receive the requisite score after date of application but before date of decision. However Student visa applicants are encouraged to have sat an IELTS test and achieved a requisite score prior to lodging an application

Student visa applicants will not be eligible for a visa if they provide an English language test that is older than two years prior to the date of application.

When a Student visa application is lodged, the Department can make a decision on the information at hand.

If the results from an IELTS test are not submitted with a Student visa application, applicants should indicate that they have booked an IELTS test within a reasonable timeframe and the date of that test.

Applicants seeking a visa in the Schools sector will not be affected by this recent decision as they are already able to sit an IELTS test after application.
Note: Special English language test waiver provisions continue to be in place for school applicants who are in the PRC (excluding the Hong Kong and Macau Special Administrative Regions).

AUSTRALIAN VISA EXPERTS

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