Hardwick (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, under the direct entry stream. The applicant had lodged a visa application and subsequently had the decision under review affirmed by the Tribunal. The Tribunal was required to determine whether the applicant met the English language proficiency requirements as stipulated in clause 187.232 of Schedule 2 to the Migration Regulations 1994, and whether the applicant fell within any of the classes of persons exempt from these requirements.

The primary legal issue was whether the applicant possessed "competent English" as defined by regulation 1.15C of the Regulations. This required either undertaking a specified English language test within the preceding three years and achieving a specified score, or holding a specified passport. The applicant had undertaken an IELTS test, but the Tribunal found that his scores did not meet the minimum requirement of at least 6 in each of the four components (listening, reading, writing, and speaking). Furthermore, the applicant did not hold a passport from a country specified in the relevant legislative instrument for exemption purposes.

The Tribunal considered the applicant's IELTS test results, which showed scores of 6.5 for listening, 5.0 for reading, 6.0 for writing, and 9.0 for speaking. As the applicant did not achieve a score of at least 6 in the reading component, he did not demonstrate competent English. The Tribunal also examined whether the applicant qualified for an exemption from the English language criteria under Class 1 of IMMI 15/083, which requires earnings to be at least equivalent to the Australian Tax Office's top individual income tax rate. The applicant's stated salary of $68,328 per year was found to be insufficient to meet this threshold. The applicant declined an invitation to participate in a hearing, and the Tribunal proceeded to make its decision based on the available evidence.

Given that the applicant failed to meet the English language proficiency requirements for the Direct Entry stream of the Subclass 187 visa, and did not qualify for any exemptions, the Tribunal affirmed the decision not to grant the visa.