Goven (Migration)

The Administrative Appeals Tribunal considered the case of Goven, concerning an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Direct Entry stream. The primary applicant sought this visa for a nominated position as a podiatrist, while other applicants sought to be included as members of the same family unit. The central dispute revolved around whether the primary applicant met the English language requirements for the visa.

The legal issue before the Tribunal was whether the applicant possessed "competent English" as defined by the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant had satisfied the criteria for competent English, which required either undertaking a specified language test within the preceding three years and achieving a specified score, or holding a specified passport.

The Tribunal reasoned that under regulation 1.15C of the Regulations, a person has competent English if they have undertaken a specified language test with a specified score or hold a specified passport. The relevant legislative instrument, IMMI 15/005, lists acceptable tests and scores, including IELTS, OET, TOEFL iBT, PTE Academic, and Cambridge English: Advanced. Citizens of the United Kingdom, the United States of America, Canada, New Zealand, and the Republic of Ireland are deemed to have competent English. As the applicant held a South African passport and was not a citizen of any of these countries, they were required to undertake one of the specified language tests. The Tribunal noted that the applicant had not undertaken any of these tests, mistakenly believing that their English proficiency had been demonstrated for a previous visa application. The Tribunal emphasised that English language proficiency requirements are specific to each visa subclass and stream.

Consequently, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas. As the primary applicant did not meet the criteria for competent English, the applications of the other applicants, who relied on being members of the family unit of a primary applicant meeting the criteria, were also affirmed.