Kumar (Migration)

This matter concerned an appeal by Mr. Kumar against a decision to affirm the refusal of his Subclass 186 Employer Nomination Scheme visa, specifically under the Temporary Residence Transition stream. The core dispute revolved around whether Mr. Kumar met the required English language proficiency for the visa at the time of his application. The decision was made by the Administrative Appeals Tribunal.

The Tribunal was required to determine two primary issues: first, whether Mr. Kumar had attained the standard of English proficiency mandated by the relevant legislative instrument, LIN 16/216; and second, if he had not, whether he qualified for any exemption under the instrument. The applicable English language requirement depended on the date of the visa application, with applications made on or after 1 July 2017 requiring "competent English," as defined in regulation 1.15C of the Migration Regulations 1994.

The Tribunal reasoned that to meet the "competent English" requirement, an applicant must either have achieved a specified score in a language test within the three years preceding the application or hold a specified passport. Mr. Kumar's application, lodged on 1 March 2020, required competent English. He indicated in his application that he had studied in English-medium institutions and would provide certificates, but explicitly stated he had not undertaken an English test in the preceding 36 months. While he provided some documentation of secondary schooling in English between 2000 and 2002, and claimed functional English, the Tribunal found this insufficient to meet the competent English standard for applications made after 2017, and no exemption was applicable.

Consequently, the Tribunal concluded that Mr. Kumar had not met the English language proficiency requirements for the visa. The decision under review, which affirmed the refusal of the visa application, was therefore affirmed.