BAHRUNANI DIAZ (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), under the Direct Entry stream. The applicant sought review of a decision that affirmed the refusal of her visa application. The central dispute revolved around whether the applicant met the language proficiency requirement for the visa.

The Tribunal was required to determine whether the applicant possessed "competent English" as defined by the relevant legislative instruments. Specifically, the court had to consider whether the applicant had undertaken a specified language test within the three years preceding her visa application and achieved the required score, or if she held a specified passport. The Tribunal also had to consider whether any other specified classes of persons were relevant, though it noted no such class was specified in the relevant instrument.

The Tribunal reasoned that "competent English" is a defined term with no discretion for the Tribunal to consider alternative evidence. The applicant's most recent English language test was from 2013, which fell outside the three-year period prior to her visa application. While the applicant provided results from later TOEFL tests and other qualifications such as an MBA and a skills assessment, these did not satisfy the legislative definition of competent English. Her Spanish passport was also not among those specified in the relevant legislative instrument. Consequently, the Tribunal found that the applicant had not met the language proficiency requirement under clause 186.232(a) of the Regulations.

As the applicant had not satisfied the essential criteria for the Subclass 186 visa in the Direct Entry stream, the Tribunal affirmed the decision not to grant the visa.