Malcolm (Migration)

This matter concerned an application for a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The applicant sought review of a decision concerning his eligibility for the visa. The decision was made by Karen McNamara, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of cl.187.232 of Schedule 2 to the Migration Regulations, specifically concerning English language proficiency at the time of his visa application. The Regulations stipulate that an applicant in the Direct Entry stream must either have competent English or be a member of a specified class of persons. Competent English is defined by r.1.15C of the Regulations, which requires either a specified score in a language test undertaken within three years of the application or holding a specified passport.

The Tribunal considered the applicant's evidence, noting he was a citizen of Kiribati and did not hold a passport from the United Kingdom, the United States of America, Canada, New Zealand, or the Republic of Ireland at the time of his application. However, the Tribunal accepted evidence that the applicant had undertaken an Occupational English Test on 5 July 2014, prior to his application, and achieved scores of B for listening, reading, and writing, and A for speaking. The Tribunal found these results satisfied the requirements of legislative instrument IMMI 15/005, thus establishing that the applicant possessed competent English as defined by r.1.15C. Consequently, the Tribunal concluded that cl.187.232 was met.

Given these findings, the Tribunal remitted the visa application to the Minister for reconsideration, with the direction that the applicant met the criteria under cl.187.232 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa.