Federal Circuit Court. Clause 485.212(a)(ii) required the visa application to be accompanied by evidence that the applicant "has achieved, within the period specified by the Minister in the instrument, the score specified ... in the instrument". Clause 4 of IMMI 15/062 specified for cl 485.212(a)(ii) that the test "must have been undertaken within the three years before the day on which the application was made". Did a test undertaken before the 3-year timeframe but whose result was achieved within that timeframe satisfy cl 485.212(a)(ii)?
Clause 485.212 of Schedule 2 to the Migration Regulations 1994 (Cth) provided as follows, which is very similar to what it currently provides:
The [visa] application was accompanied by evidence that:
(a) the applicant:
(i) has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and
(ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or
...
Clause 4 of IMMI 15/062 provided, and still does, as follows:
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- SPECIFY for subparagraphs 476.213(a)(ii) and 485.212(a)(ii) of the Regulations the following English language tests must have been undertaken within the three years before the day on which the application was made:
a. an International English Language Test System (IELTS) test;
...
The Federal Circuit and Family Court of Australia answered that question as follows: