Gulvi (Migration)

This matter concerned an appeal by an applicant for a Regional Employer Nomination (Permanent) visa (Subclass 187) against a decision to affirm the refusal of their visa application. The appeal was heard by the Tribunal.

The core legal issues before the Tribunal were whether the applicant possessed competent English at the time of their visa application, or alternatively, whether they belonged to a class of persons specified as exempt from this requirement. These issues arose under clause 187.232 of Schedule 2 to the Regulations, which stipulated that an applicant must have competent English or be in a class of persons specified by the Minister in a written instrument.

The Tribunal found that the applicant did not have competent English as defined by regulation 1.15C. This was because the applicant had not provided evidence of achieving the required scores in specified English language tests within the preceding three years, nor did they hold a passport from a country listed for automatic recognition of competent English. Furthermore, the Tribunal determined that no exemptions applied to applicants in the Direct Entry stream of the Subclass 187 visa, as the relevant legislative instruments did not specify any such exemptions for this stream, despite providing exemptions for other streams.

Consequently, as the applicant had only sought to satisfy the criteria for the Direct Entry stream and had failed to meet the English language proficiency requirement, the Tribunal affirmed the decision not to grant the visa.