Calixto Alves Filho (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for review concerning the refusal of Employer Nomination (Permanent) (Class EN) visas, specifically the Subclass 186 Employer Nomination Scheme under the Labour Agreement stream. The applicant, employed as a Skilled Meat Worker by JBS, sought to have the decision to refuse his visa application set aside. The dispute centred on whether the applicant met the English language requirements for the visa.

The primary legal issues before the Tribunal were whether the applicant satisfied regulation 186.243(2) of the Migration Regulations 1994, which pertains to English language skills suitable for the nominated occupation. Alternatively, the Tribunal considered whether the applicant demonstrated functional English or was otherwise exempt from this requirement through the payment of a second visa application charge. The Tribunal was required to determine what constitutes "functional English" and whether the applicant's evidence met this standard or any alternative pathways provided by the relevant labour agreement.

The Tribunal affirmed the decision to refuse the visa. It reasoned that while the applicant was employed under a Meat Industry Labour Agreement (MILA) which previously exempted him from English proficiency requirements for a 457 visa, the criteria for the 186 visa under the Labour Agreement stream, as set out in regulation 186.243(2), required English language skills suitable to perform the nominated occupation. The MILA itself provided pathways for meeting these requirements, including an IELTS score of 5.0 or, for certain 457 visa holders, demonstrating functional English. The applicant's submitted IELTS test results yielded an overall band score of 1.5, which the Tribunal found did not meet the standard for functional English. While the employer, JBS, provided a letter confirming the applicant's suitability for the role, this was not considered sufficient to overcome the specific regulatory requirements for the 186 visa. The Tribunal concluded that the applicant had not provided sufficient evidence to satisfy the English language criteria.