LI (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Temporary Residence Transition stream. The applicant failed to provide evidence of competent English language proficiency at the time of her visa application, a requirement for this visa stream.

The primary legal issue before the Tribunal was whether the applicant met the English language requirements for the Subclass 186 visa. Specifically, the Tribunal had to determine if the applicant had demonstrated either a defined level of English language proficiency or belonged to a class of persons exempt from this requirement, as stipulated by the applicable legislative instrument. The relevant standard for applications made on or after 1 July 2017 was "competent English," defined by regulation.

The Tribunal reasoned that to satisfy the competent English requirement, an applicant must either have undertaken a specified language test within the preceding three years and achieved a specified score, or hold a passport from a specified country. The applicant stated she had not undertaken an English language test for the permanent visa application, as she was unaware it was a requirement, having relied on advice from a migration agent. However, the Tribunal found no evidence that the applicant had undertaken a specified English language test within the relevant timeframe, nor did she hold a passport from a specified country. While acknowledging the applicant's reliance on potentially incorrect advice from a migration agent whose registration was later cancelled, the Tribunal concluded that this did not exempt the applicant from meeting a mandatory visa criterion.

Consequently, as the applicant had not met the essential English language proficiency requirement for the Subclass 186 visa in the Temporary Residence Transition stream, the Tribunal affirmed the decision not to grant the visa.