Kotsi (Migration)

This matter concerned an appeal to the Tribunal regarding the refusal of an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, Temporary Residence Transition stream. The applicant sought to have the decision of the Department of Home Affairs reviewed.

The primary legal issue before the Tribunal was whether the applicant met the English language proficiency requirements stipulated by clause 186.222 of the Migration Regulations 1994 at the time of her visa application. Specifically, the Tribunal had to determine if the applicant satisfied the definition of "vocational English" as required for applications made before 1 July 2017, or if she fell within any specified exempt classes of persons.

The Tribunal reasoned that for applications made before 1 July 2017, vocational English was required, defined in regulation 1.15B. While the applicant's IELTS test taken on 19 August 2017 met the score requirements, it was undertaken after the visa application date of 6 April 2017. Regulation 1.15B(bb) mandates that the test must have been undertaken within the three years immediately preceding the visa application. Therefore, the applicant did not meet the definition of vocational English. The Tribunal also considered a legislative instrument, IMMI 17/058, which specified an exemption for persons who had completed at least five years of full-time study where all tuition was delivered in English. However, the applicant did not present evidence to satisfy this exemption.

Ultimately, the Tribunal affirmed the decision not to grant the visa. The Tribunal expressed hope that the applicant's circumstances, including her Australian fiancé and employer, would be considered compassionately by the Department, and that if an onshore Partner visa application was not viable, her case might be referred to the Minister for consideration of intervention under section 351 of the Migration Act 1958.