Haarhoff (Migration)

This matter concerned an appeal by Mr Haarhoff regarding his application for a Subclass 186 (Employer Nomination Scheme) visa, specifically under the Temporary Residence Transition stream. The central dispute revolved around whether Mr Haarhoff possessed the requisite English language proficiency at the time his visa application was lodged. The decision was made by Kate Millar, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine if Mr Haarhoff had "vocational English" as defined by the Migration Regulations. This required assessing whether he met the criteria outlined in regulation 1.15B, which included undertaking a specified language test within the three years immediately preceding the visa application and achieving a certain score. The Tribunal also considered the relevance of the High Court's decision in *Berengual v Minister for Immigration and Citizenship* (2010) 264 ALR 417, which interpreted a previous, similar definition of competent English.

The Tribunal reasoned that while Mr Haarhoff had provided an English language test result from 11 May 2017 that met the required scores, this test was not conducted within the three years immediately before the visa application was made. The Tribunal distinguished the current definition of vocational English in regulation 1.15B from the definition considered in *Berengual*, noting that the current wording explicitly specifies an end point for the test's validity ("in the 3 years immediately before the day on which the application was made"). This contrasts with the earlier wording, which the High Court in *Berengual* interpreted as not limiting the end point for undertaking the test. The Tribunal concluded that the current regulation's wording was more specific and did not permit the interpretation applied in *Berengual*.

Consequently, the Tribunal remitted the applications for Employer Nomination (Permanent) (Class EN) visas for reconsideration. The direction was that the first applicant, Mr Haarhoff, was found to meet the criteria under clause 186.222 of Schedule 2 to the Regulations, implying that the English language proficiency requirement, as currently interpreted, had not been met by the submitted test.