Lee (Migration)

The Administrative Appeals Tribunal considered a decision concerning an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically the temporary residence transition stream. The applicant sought this visa, but the decision under review was to refuse its grant.

The primary legal issue before the Tribunal was whether the applicant met the English language proficiency requirement for the visa. This requirement stipulated that an applicant must either achieve a specified score in a designated language test or hold a specified passport, as detailed in legislative instrument IMMI 15/005. The applicant had undertaken the Pearson Test of English Academic on multiple occasions but failed to achieve the required score of 50 in each of the four components. Furthermore, the applicant's passport from the Republic of Korea was not among those specified in the relevant legislative instrument.

The Tribunal reasoned that it was bound to apply the law as written and did not possess the discretion to waive the English language requirement on compassionate grounds or in recognition of the applicant's work experience and integration into the Australian community. Despite submissions and evidence presented by the applicant, including tax statements, payslips, and letters of support, the Tribunal found that clause 186.222 of the Migration Regulations was not met. A request to refer the matter for potential ministerial intervention under section 351 of the Migration Act was considered but deemed unsuitable for referral by the Tribunal member. Consequently, the Tribunal affirmed the decision not to grant the visa.