Ghani (Migration)

This matter concerned an appeal by Mr. Ghani against a decision to refuse his application for a Skilled – Independent (Permanent) (Class SI) visa, Subclass 189. The dispute centred on whether Mr. Ghani possessed competent English language proficiency at the time he was invited to apply for the visa. The decision was made by the Tribunal.

The primary legal issue before the Tribunal was to determine whether Mr. Ghani had demonstrated "competent English" as required by clause 189.223 of the Migration Regulations 1994 at the time of his invitation to apply for the visa on 11 November 2018. This involved considering the validity of his English language test results and the definition of "competent English" as set out in regulation 1.15C of the Regulations.

The Tribunal reasoned that Mr. Ghani's initial English language test results from a Cambridge English (CAE) test undertaken in Dubai in July 2018 had been disqualified due to test centre malpractice. While Mr. Ghani provided a subsequent Pearson (PTE) test result demonstrating superior English, this test was conducted after the invitation date and therefore could not satisfy the requirement for competent English at the relevant time. However, the Tribunal noted that all students who took the CAE test in Dubai in July 2018 were affected by the disqualification. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration, with a direction that Mr. Ghani meets the English language proficiency criterion for the Subclass 189 visa.