1603283 (Migration)

The Administrative Appeals Tribunal considered an application for an Employer Nomination (Permanent) (Class EN) visa, specifically within the Temporary Residence Transition (TRT) stream. The applicant sought review of a decision not to grant the visa. The core of the dispute concerned the applicant's English language proficiency at the time the visa application was lodged on 9 July 2015.

The Tribunal was required to determine whether the applicant met the English language requirements for the TRT stream as prescribed by the relevant legislative instrument. This involved assessing whether the applicant possessed "vocational English" by either undertaking a specified language test within the preceding three years and achieving a specified score, or by holding a passport from a specified country. The Tribunal also considered whether the applicant fell within any specified classes of persons exempt from the English language requirement.

The Tribunal found that the applicant's English test report from 1 July 2015 indicated a reading score of 34, which did not meet the requirement of at least 36 for each of the four components of the International English Language Test System (IELTS) test. The applicant did not provide evidence of undertaking any other prescribed tests or holding a passport from the United Kingdom, United States of America, Canada, New Zealand, or the Republic of Ireland; instead, the applicant held an Indian passport. Furthermore, the applicant did not claim to meet the criteria for exemption, such as earning over $180,000 annually or having completed at least five years of full-time study in English. Consequently, the Tribunal concluded that the applicant did not satisfy the English language proficiency requirement under clause 186.222 of the Regulations.

The Tribunal affirmed the decision not to grant the visa. However, the Tribunal also noted that it would be appropriate for the Minister to consider intervening on public interest grounds pursuant to section 351 of the Migration Act 1958 (Cth), though this remained entirely at the Minister's discretion.