CHOI (Migration)

The Administrative Appeals Tribunal considered a decision concerning an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The applicant sought to demonstrate the required level of English proficiency for this visa subclass.

The primary legal issue before the Tribunal was whether the applicant met the English language proficiency requirements as stipulated by the relevant legislative instrument at the time of the visa application. This involved determining if the applicant had either achieved a specified score in a language test within the three years preceding the application or held a specified passport, or if they fell within a class of persons exempted from this requirement.

The Tribunal reasoned that for visa applications made before 1 July 2017, "vocational English" was required, as defined in regulation 1.15B of the Migration Regulations 1994. The applicant had indicated undertaking an IELTS test but did not achieve the required score for vocational English. The Tribunal noted that any subsequent test would not satisfy the criterion as it must be taken within three years prior to the visa application. Furthermore, the applicant held a Korean passport, which was not among those specified in the relevant legislative instrument IMMI 15/005. The Tribunal also examined whether the applicant qualified for an exemption under IMMI 15/083, which applies to individuals earning at least the top Australian Tax Office individual income tax rate or those who completed at least five years of full-time study in English-taught institutions. The applicant confirmed neither of these conditions were met.

Consequently, the Tribunal concluded that the applicant had not satisfied the English language proficiency requirements for the Subclass 186 visa in the Temporary Residence Transition stream. The Tribunal affirmed the decision not to grant the visa.