CHAROENVILASPONG (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the Direct Entry stream. The dispute centred on whether the applicant had demonstrated the required level of English language proficiency at the time of lodging their visa application.

The primary legal issue before the Tribunal was to determine if the applicant met the definition of having "competent English" as prescribed by the Migration Regulations. This involved assessing whether the applicant had undertaken a specified language test within the three years preceding their visa application and achieved the required scores, or if they held a passport from a country specified in the relevant legislative instrument.

The Tribunal reasoned that the applicant's passport from Thailand did not satisfy the passport criterion for competent English. While the applicant had completed an English language course in 2009, this did not meet the requirement of a specified test score within the three years prior to the application. The applicant had taken an IELTS test on 30 July 2016, which was within the prescribed timeframe, but did not achieve the required score of at least 6.0 in each of the four components. A subsequent test taken after the visa application was lodged, on 21 January 2017, did meet the score requirement, but this test was not conducted within the three years immediately before the application was made, as mandated by the regulations. The Tribunal noted that there was no discretion to consider the later test or the outcome of a review of the earlier test results, as the regulations were specific about the timing of the test.

Consequently, as the applicant failed to meet the English language proficiency requirements for the Direct Entry stream of the Subclass 187 visa at the time of application, the Tribunal affirmed the decision not to grant the visa.