Desfontaines (Migration)

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically the temporary transition stream. The dispute centred on the applicant's failure to meet the English language proficiency requirements for the visa. The decision was made by Alison Mercer, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the English language requirements as stipulated by clause 186.222 of Schedule 2 to the Migration Regulations 1994. This clause requires applicants to either demonstrate a defined level of English language proficiency through a specified test within three years of the application date, or hold a specified passport, or fall within an exemption category outlined in legislative instrument IMMI 17/058.

The Tribunal found that the applicant's IELTS test, taken in 2013, was too old to satisfy the requirement of being undertaken within three years of the visa application date of 29 November 2017. Similarly, a PTE test taken in April 2018 was also outside the relevant timeframe. The applicant's South African passport was not one of the specified passports for exemption. However, the Tribunal accepted evidence that the applicant had completed eight years of secondary and tertiary education in South Africa where the medium of instruction was English, thus potentially meeting the exemption for having completed at least five years of full-time study in an institution where all tuition was delivered in English.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the English language criteria under clause 186.222 of Schedule 2 to the Regulations, allowing for the assessment of other visa criteria.