1911052 (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream, for an appointment as a Cabinet Maker. The applicant sought review of a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the English language proficiency requirements at the time the visa application was lodged. This involved determining the applicable standard of English proficiency and the criteria for satisfying that standard, as stipulated by the relevant regulations and legislative instruments.

The Tribunal considered that for visa applications made on or after 1 July 2017, the required standard was "competent English," as defined in regulation 1.15C of the Migration Regulations 1994. This definition requires either achieving a specified score in a language test conducted within the three years preceding the application, or holding a passport from a specified country. The relevant legislative instrument, IMMI 15/005, specified that for an International English Language Test System (IELTS) test, a score of at least 6 in each of the four components (listening, reading, writing, and speaking) was required. The Tribunal found that the applicant had not achieved the specified IELTS test score, nor did they meet the alternative criteria for demonstrating competent English.

Consequently, the Tribunal affirmed the decision not to grant the visa, finding that the applicant had failed to satisfy the English language proficiency requirement at the time of application. The Tribunal noted that while it had decided not to exercise any discretionary power, the applicant retained the ability to make a direct request to the Minister.