Ferreira (Migration)

The Administrative Appeals Tribunal considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), made by an applicant who was a citizen of South Africa. The dispute centred on whether the applicant met the English language proficiency requirements for the visa at the time of application.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied clause 186.222 of the Migration Regulations 1994. This clause requires applicants in the Temporary Residence Transition stream to demonstrate vocational English at the time of application, either by achieving a specified score in a language test or by holding a passport from a designated country.

The Tribunal reasoned that "vocational English" was defined by legislative instrument IMMI 15/005, which specified acceptable language tests, scores, and passports. While the applicant provided a South African passport, this was not one of the passports listed in IMMI 15/005 that would satisfy the vocational English requirement. Furthermore, although the applicant later achieved an overall band score of 7.0 in an IELTS test, this test was undertaken after the visa application date. Consequently, the Tribunal found that the applicant did not meet the vocational English requirement as defined at the time of his application.

The Tribunal remitted the application for reconsideration, directing that the applicant met the criteria under clause 186.222 of Schedule 2 to the Regulations.