JADHAV (Migration)

The Administrative Appeals Tribunal considered the case of JADHAV (Migration), concerning an application for a Subclass 186 Employer Nomination Scheme visa under the Temporary Residence Transition stream. The applicant sought to have a decision affirmed, which had previously affirmed a refusal of the visa application.

The central legal issue before the Tribunal was whether the applicant had satisfied the criterion of having competent English, as required by regulation 186.222 of the Migration Regulations 1994, or if they fell within an exemption specified by a legislative instrument. The Tribunal noted that for visa applications made on or after 1 July 2017, the required level of English proficiency is "competent English," defined in regulation 1.15C. This can be met by undertaking a specified language test with a specified score within three years of the application or by holding a passport from an exempted country.

The Tribunal found that the applicant's visa application was made on 12 December 2019, thus requiring competent English. The applicant indicated in their application that they had not undertaken an English test in the preceding 36 months. Furthermore, as the applicant is a citizen of the Republic of India, they did not qualify for an exemption based on holding a passport from an exempted country. Consequently, the Tribunal concluded that the applicant had not met the competent English requirement under regulation 186.222. The Tribunal also addressed secondary applicants, noting that as they were family members of the primary applicant, and the primary applicant had not met the visa criteria, the secondary applicants also did not meet the criteria for the grant of the visa.

The Tribunal affirmed the decision under review, meaning the visa application was not granted.