Background
Sai Abhishek Reddy Nareddula applied for a Subclass 485 Temporary Graduate visa on 9 August 2021. A delegate refused the application because it was not accompanied by evidence that he had completed an acceptable English-language test within the prescribed three-year period before applying. Although Nareddula later achieved the required Pearson Test of English scores in December 2021, that test occurred after the visa application date.
The Administrative Appeals Tribunal affirmed the refusal after Nareddula failed to attend its hearing. The hearing invitation had been sent to his authorised migration agent, who reportedly failed to inform him. The Federal Circuit and Family Court of Australia summarily dismissed Nareddula’s judicial-review application as having no reasonable prospect of success.
Nareddula sought an extension of time and leave to appeal that interlocutory decision. His application was filed 13 days late. He argued principally that COVID-19 restrictions and government announcements permitted flexibility in satisfying the English-language requirement, and that his agent’s failure to notify him of the Tribunal hearing denied him procedural fairness.
The Court’s Holding
Justice Bennett dismissed the applications for an extension of time and leave to appeal. Although the delay was relatively short and at least partly explained, the proposed appeal lacked merit. Clause 485.212 of the Migration Regulations 1994 (Cth), together with the applicable legislative instrument, imposed an objective and mandatory requirement that the qualifying English test be undertaken within three years before the visa application. Neither the Tribunal nor the Court had discretion to excuse noncompliance because of COVID-19, compassionate circumstances, testing difficulties, government media statements or an agent’s advice.
The Court also rejected the procedural-fairness grounds. The Tribunal validly sent the hearing invitation to Nareddula’s authorised recipient and was entitled to decide the review when he did not appear. Taken at their highest, the allegations against the migration agent showed negligence, oversight or mistake—not fraud capable of stultifying the Tribunal’s process. In any event, attendance at a further Tribunal hearing could not cure the failure to meet the mandatory visa criterion, so remittal would be futile.
Because the primary judgment was not attended by sufficient doubt to warrant reconsideration, the interests of justice did not support extending time, and the test for leave to appeal was not met. The Court allowed the parties to make separate written submissions about costs.
Key Takeaways
- The applicable Subclass 485 English-language criterion required the qualifying test to have been completed within three years before the visa application; a passing result obtained afterward could not be considered.
- COVID-19 disruptions and public statements about flexibility could not create a discretion absent from the governing regulations and legislative instrument.
- Valid notice to an authorised migration agent satisfied the Tribunal’s notification obligations, and alleged negligence or oversight by the agent did not amount to fraud invalidating the review.
Why It Matters
The decision underscores that visa criteria framed as mandatory historical facts cannot be relaxed by a tribunal or court because compliance was difficult or because the applicant received poor professional advice. Applicants must identify the precise legal concession, if any, contained in the legislation rather than rely on general government announcements or media reports.
It also illustrates the decisive role of merits in applications to extend appeal deadlines. Even a modest, plausibly explained delay will not justify an extension where the proposed appeal lacks substance and the requested remittal could not change the legally required outcome.