Kpozehouen (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Employer Nomination Scheme under the Direct Entry stream. The applicant sought to demonstrate competent English proficiency, a requirement for this visa subclass. The decision was made by Wan Shum of the Tribunal.

The central legal issue before the Tribunal was whether the applicant possessed the requisite level of English proficiency as defined by the relevant legislative instruments at the time of the visa application. This involved determining if the applicant had either undertaken a specified language test within the three years preceding the application and achieved the required score, or held a passport from a specified country.

The Tribunal reasoned that for visa applications made prior to 1 July 2017, an applicant in the Direct Entry stream needed to demonstrate competent English. This was defined by Regulation 1.15C, which required either a specified language test with a minimum score within the three years before the application, or holding a specified passport. The applicant's IELTS test taken prior to the application date did not meet the minimum score requirement in all components. While the applicant had achieved higher scores in other tests, these were taken outside the three-year window. The applicant's passport was also not from a specified country. The Tribunal was unable to substitute its own assessment of the applicant's English proficiency.

Consequently, the Tribunal concluded that the applicant had not met the definition of competent English under Regulation 1.15C, nor satisfied the criteria under clause 186.232(a) of the Regulations. As no claims were made regarding other visa streams, and the requirements for the Direct Entry stream were not met, the Tribunal affirmed the decision not to grant the visa.