Marawa (Migration)

The Administrative Appeals Tribunal considered a case involving an applicant seeking a Subclass 186 Employer Nomination (Permanent) visa under the Direct Entry stream. The primary dispute concerned whether the applicant met the English language proficiency requirements at the time of his visa application. The applicant's family members, who were applying as secondary applicants, also had their applications contingent on the primary applicant meeting the eligibility criteria.

The central legal issue before the Tribunal was to determine if the applicant possessed "competent English" as defined by the relevant regulations and legislative instruments at the time of his visa application. This involved assessing whether the applicant's English language test results met the specified score requirements for the Direct Entry stream of the Subclass 186 visa.

The Tribunal found that the applicant did not meet the English language requirements. While the applicant provided IELTS test results from 11 July 2015, his score of 5.5 in the listening component fell short of the required minimum of 6.0 in each of the four test components. Consequently, the applicant failed to satisfy criterion 186.232. As the applicant did not meet the primary criteria for the visa, the applications of his family members, who were seeking to join him as members of the family unit, were also affirmed.

Despite affirming the decision not to grant the visa, the Tribunal considered it an appropriate case for Ministerial intervention. The Tribunal noted the applicant's misunderstanding of the different English language requirements between visa streams, his subsequent improved IELTS scores, the strong support from his employer, Tamworth Regional Council, who faced recruitment difficulties, and the fact that the nominated occupation was no longer listed for Subclass 186 visas. The Tribunal concluded that, given the limited nature of the unmet criterion and the employer's support, the matter should be referred to the Department for consideration of Ministerial intervention.