Gwara (Migration)

The Administrative Appeals Tribunal considered an appeal by Mr Gwara (the applicant) concerning the refusal of an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) Direct Entry stream. The core dispute revolved around whether the applicant met the English language proficiency requirements for this visa subclass.

The primary legal issue before the Tribunal was to determine if the applicant satisfied clause 186.232 of the Migration Regulations 1994, which mandates that applicants for the Direct Entry stream must have "competent English" at the time of application. This requirement is further defined by regulation 1.15C, which outlines two ways to demonstrate competent English: either by holding a specified passport or by undertaking a specified language test within the three years preceding the application and achieving a specified score.

The Tribunal reasoned that the applicant, a citizen of Zimbabwe, did not hold a valid passport from the United Kingdom, the United States of America, Canada, New Zealand, or the Republic of Ireland, thus failing to meet the passport criterion for competent English. Furthermore, while the applicant had undertaken an International English Language Testing System (IELTS) test on 5 March 2016, the Tribunal found that the provided results did not meet the specified score required by legislative instrument IMMI 15/005 for the purposes of demonstrating competent English under subregulation 1.15C(1). Consequently, the Tribunal concluded that the applicant did not satisfy the primary criteria for the Subclass 186 visa.

As the applicant failed to meet the primary criteria, the Tribunal found that the secondary applicants also did not satisfy the relevant criteria for the Subclass 186 visa. Accordingly, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.