Kim (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The applicant, Mr Joungchoul Kim, sought review of a decision to affirm the refusal of his visa application. The case was heard by Karen McNamara.

The central legal issue before the Tribunal was whether Mr Kim possessed competent English at the time of his visa application, as required by clause 186.222(a) of Schedule 2 to the Regulations, or if he fell within a class of persons specified by the Minister under clause 186.222(b). For applications made on or after 1 July 2017, "competent English" is defined in regulation 1.15C, which can be satisfied by achieving a specified score in a language test within the three years preceding the application or by holding a specified passport.

The Tribunal noted that Mr Kim held a passport from the Republic of Korea, which was not one of the specified countries. Therefore, he was required to demonstrate competent English through a specified test. The relevant legislative instrument specified minimum scores for various tests, including an IELTS score of at least 6 in each of the four components (speaking, reading, writing, and listening). The delegate's decision and the Tribunal's review of the provided evidence indicated that Mr Kim had submitted numerous IELTS test reports, all of which showed scores below 6 in at least one component. Consequently, the Tribunal concluded that Mr Kim had not met the English language proficiency requirements for the visa.

As the applicant had not satisfied the mandatory criteria for the Subclass 186 visa under the Temporary Residence Transition stream, the Tribunal affirmed the decision not to grant the visa.