Gerna (Migration)

This matter concerned an appeal by Mr Romel Gerna against the decision to affirm the refusal of his Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of the Subclass 186 Employer Nomination Scheme. The primary dispute revolved around whether Mr Gerna possessed the requisite "competent English" at the time of his visa application.

The Tribunal was required to determine if Mr Gerna met the English language proficiency requirements as stipulated by the Migration Regulations. This involved assessing whether he either achieved a defined level of English language proficiency or fell within a class of persons specified by the Minister in a legislative instrument. Given the date of his visa application, the relevant standard was "competent English," as defined in regulation 1.15C of the Regulations.

The Tribunal reasoned that to satisfy the "competent English" requirement, an applicant must either hold a specified passport or have undertaken a specified language test within the three years preceding the application and achieved a specified score. Mr Gerna held a passport from the Philippines, which was not among the specified countries. Therefore, he was required to demonstrate proficiency through a language test. The Tribunal noted that Mr Gerna had provided an IELTS test report from 10 February 2018, which indicated scores below the required minimum of 6 in each of the four components (Listening, Reading, Writing, and Speaking) as specified in legislative instrument IMMI 15/005. Consequently, the Tribunal concluded that Mr Gerna had not met the English language proficiency requirements.

The Tribunal affirmed the decision not to grant Mr Gerna the Employer Nomination (Permanent) (Class EN) visa. It also noted that applicants with unique or exceptional circumstances could seek Ministerial intervention.