Goncalves De Sa (Migration)

The Administrative Appeals Tribunal considered the case of the applicant, Mr. Goncalves De Sa, and his wife, the secondary applicant, who sought Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 (Employer Nomination Scheme) temporary residence transition stream. The core dispute revolved around whether the applicant had demonstrated "competent English" at the time of his visa application, a mandatory requirement for this visa subclass.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the English language proficiency requirements as stipulated by the relevant Legislative Instrument and Regulations, specifically clause 186.222. This involved assessing whether the applicant had undertaken a specified language test within the preceding three years of his application and achieved the required score, or if he held a specified passport that would exempt him from this requirement. The Tribunal also considered whether the applicant fell into any other specified class of exempt applicants.

The Tribunal's reasoning focused on the definition of "competent English" and the evidentiary requirements for demonstrating it. While the applicant presented numerous character references and multiple IELTS test results spanning a decade, the Tribunal found that certificates from TAFE and a language college were insufficient to prove the required level of English proficiency. Crucially, the Tribunal noted that the applicant's IELTS results, taken over an extended period, did not meet the specified score for competent English at the time of his application. Despite evidence of high proficiency at the hearing, long residence in Australia, and the wife's minimal ties to their home country, these factors did not retroactively satisfy the English language requirement at the point of application.

Consequently, the Tribunal affirmed the delegate's decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants, as the primary applicant failed to meet the essential English language proficiency criterion.