Cells (Migration)

The Administrative Appeals Tribunal reviewed a decision to refuse an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Stream), for the applicant seeking to work as a Cook. The delegate's refusal was based on the applicant's failure to provide evidence of having undertaken a specified English language test and achieved the required score within the three years preceding the visa application, as mandated by clause 186.222 of Schedule 2 to the Regulations.

The primary legal issue before the Tribunal was whether the applicant met the English language proficiency requirement for the visa. Specifically, the Tribunal had to determine if the applicant's university education in English and extensive work experience in English-speaking environments, coupled with submissions regarding COVID-19 disruptions preventing test preparation, could substitute for the mandatory English language test. The Tribunal also considered whether any compassionate grounds or discretionary powers existed to waive this requirement.

The Tribunal reasoned that clause 186.222 of the Regulations clearly stipulated that an applicant must either have undertaken a specified English language test and achieved a specified score within the three years before the application, or hold a specified passport. The applicant did not hold a specified passport and acknowledged not meeting the test requirement. While the applicant presented evidence of English-medium education and work experience, and argued for compassionate grounds due to COVID-19 restrictions, the Tribunal found no provision within the Regulations or relevant legislative instruments that allowed for a waiver of the English language test requirement based on these submissions. The Tribunal noted that it did not possess discretionary power to overlook this mandatory criterion.

Consequently, the Tribunal affirmed the delegate's decision to refuse the visa. The Tribunal found that the applicant did not satisfy the regulatory criteria for English language proficiency, and therefore, the Employer Nomination (Permanent) (Class EN) visa could not be granted.