Duru (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, subclass 186, under the direct entry stream, made by a university lecturer. The applicant sought to have the decision not to grant the visa reviewed by the Tribunal. The central dispute revolved around the applicant's English language proficiency, which was a mandatory requirement for the visa.

The legal issue before the Tribunal was whether the applicant met the English language requirements for the subclass 186 visa at the time of application. Specifically, the Tribunal had to determine if the applicant had either undertaken a specified English language test within the three years preceding the application and achieved the required score, or held a specified passport, as stipulated by the relevant legislative instruments.

The Tribunal found that the applicant did not hold a specified passport and had not undertaken a specified English language test within the three years prior to lodging the visa application on 19 February 2020. While the applicant later achieved the required scores in an IELTS test on 11 July 2020, this was after the application date and therefore could not be considered for the purpose of meeting the requirement at the time of application. The Tribunal acknowledged the applicant's extensive education in English, his professional experience, and the unforeseen circumstances, including bushfires and COVID-19 restrictions, that hindered his ability to take the test earlier. Despite these mitigating factors, the Tribunal concluded that the applicant did not meet the legislative requirements for competent English.

However, the Tribunal was satisfied that the cumulative factors in the applicant's case constituted unique and exceptional circumstances. Accordingly, the Tribunal referred the case to the Minister for consideration under section 351 of the Migration Act 1958 (Cth). The Tribunal affirmed the decision not to grant the visa.