Beltran Huertas (Migration)

This matter concerned an appeal by Beltran Huertas against a decision of the Administrative Appeals Tribunal (the Tribunal) affirming the refusal of a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream. The central dispute revolved around whether the applicant met the vocational English language proficiency requirement for the visa at the time of application.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the English language criteria as stipulated by the relevant legislative instrument and regulations. Specifically, the Tribunal had to consider whether an English language test taken by the applicant met the requirement of being undertaken within the three years immediately preceding the visa application date, and whether a subsequent test, taken after the application was lodged, could be considered.

The Tribunal reasoned that the applicant's IELTS test, taken on 21 June 2014, did not satisfy the requirement as it was more than three years prior to the visa application date of 21 June 2014. Although the applicant argued that the test was only six days outside the three-year window and that her English proficiency would not have significantly changed, the Tribunal found itself bound by the explicit wording of the regulations. Furthermore, the Tribunal determined that an IELTS test taken on 2 June 2018, after the visa application was lodged, could not be considered as it did not meet the requirement of being taken prior to the application. The Tribunal distinguished the present case from *Berenguel v Minister for Immigration and Citizenship* [2010] HCA 8, noting that the regulations had been amended since that decision.

Consequently, as the applicant failed to meet the vocational English language requirement for the Temporary Residence Transition stream of the Subclass 186 visa, the Tribunal affirmed the decision not to grant the visa.