Lovianditya (Migration)

The Administrative Appeals Tribunal considered the case of Lovianditya, who sought review of a decision not to grant him an Employer Nomination (Permanent) (Class EN) visa, Subclass 186, under the temporary residence transition stream. The primary dispute concerned whether the applicant met the English language proficiency requirements and whether the nominated position remained available.

The Tribunal was required to determine two key legal issues. Firstly, whether the applicant satisfied the English language proficiency requirements as stipulated by clause 186.222 of the relevant regulations, which mandates achieving a specified level in a test taken within three years prior to the application, or holding a specified passport, or being part of an exempt class. Secondly, the Tribunal had to consider whether the nominated position was still available to the applicant, as required by clause 186.223(4).

In relation to English language proficiency, the Tribunal found that the applicant did not meet the 'Competent English' requirement. While the applicant had undertaken an IELTS test on 10 September 2016 that achieved 'Vocational English', this did not meet the required standard for applications made on or after 1 July 2017. A subsequent IELTS test on 10 March 2020 achieved 'Competent English', but this test was taken more than three years before the visa application was made, thus failing to satisfy the temporal requirement of clause 186.222. The applicant also did not hold a specified passport or fall within any exempt class. Consequently, the Tribunal concluded that the applicant did not satisfy the English language proficiency requirement.

The Tribunal affirmed the decision not to grant the applicant the Subclass 186 visa, acknowledging the applicant's contributions to Australia and his family's integration into the community, but ultimately applying the law to the facts presented.