Cho (Migration)

The applicant, a citizen of South Korea, sought a Skilled (Residence) (Class VB) visa, Subclass 885 (Skilled – Independent). The dispute centred on whether the applicant possessed "competent English" as required by clause 885.213 of the Migration Regulations 1994. The decision was made by Denise Connolly, a Member of the Tribunal.

The legal issue before the Tribunal was to determine if the applicant met the definition of "competent English" under regulation 1.15C. This regulation outlines two primary ways to satisfy the requirement: either by achieving a specified score in an approved English language test (such as IELTS or OELT) taken within two years of the visa application, or by holding a passport of a type specified by the Minister.

The Tribunal reasoned that the applicant did not satisfy the passport criterion as she was a citizen of South Korea and did not hold a specified passport. Furthermore, the applicant had not provided evidence of achieving the required scores in either an IELTS or OELT test. While she had undertaken numerous IELTS tests, she consistently scored less than 6 in the writing component and acknowledged her inability to meet the threshold. The Tribunal noted that it had no discretion to waive the legislative requirement and, considering the applicant had applied for the visa six years prior, it was not prepared to grant further time for additional testing, concluding that there was no utility in further attempts.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 885 visa, as she failed to meet the essential criterion of competent English.