Lim (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal by an applicant seeking an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the Direct Entry stream. The core dispute revolved around whether the applicant met the English language proficiency requirements for the visa or qualified for an exemption.

The Tribunal was required to determine if the applicant possessed "competent English" as defined by the Migration Regulations 1994, specifically whether they had undertaken a specified language test within the three years preceding the visa application and achieved the required score, or if they held a passport from a specified country. The applicant also contended that he had mistakenly believed his IELTS test, taken on 5 August 2013, fell within the three-year timeframe for his visa application lodged on 31 July 2016, and that he had not received feedback from the Department regarding this perceived error.

The Tribunal reasoned that to satisfy the "competent English" criterion, an applicant must have undertaken a specified language test within the three years immediately before lodging their visa application and achieved the prescribed score, or hold a passport from the United Kingdom, United States, Canada, New Zealand, or Ireland. The applicant held a Singaporean passport, which did not meet the exemption criteria. While the applicant had achieved scores demonstrating "competent English" in an IELTS test taken on 27 July 2013, this test was taken just outside the relevant three-year period. The applicant acknowledged that he had not undertaken any specified tests within the required timeframe.

Consequently, the Tribunal affirmed the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa, Subclass 186. The Tribunal also found that the secondary applicants did not satisfy the criteria for the visa as they did not meet the primary criteria.