MUTHU (Migration)

This matter concerned an application for a Skilled Independent (Permanent) visa (Subclass 189). The applicant had provided details of a PTE Academic test undertaken on 5 April 2017, claiming proficient English language ability. However, the Department of Home Affairs refused the visa application on the basis that the applicant had not provided the requested test results, despite multiple requests. The applicant's representative contended that the test results had been provided. The Administrative Appeals Tribunal (the Tribunal) reviewed the evidence and the applicant's claims.

The central legal issue before the Tribunal was whether the applicant possessed "competent English" at the time of invitation to apply for the visa, as required by clause 189.223 of the Migration Regulations 1994. The definition of competent English, as set out in regulation 1.15C, requires a person to have undertaken a specified language test within a certain timeframe before the invitation date and achieved a specified score. The applicable tests, scores, and instruments were specified in IMMI 15/005.

The Tribunal noted that while the Department had requested the test results, they were not provided. The applicant's representative claimed they had been submitted. During the hearing, the Tribunal sighted copies of test results from tests taken in April 2017 and November 2016, both indicating scores above 50 in each component. The Tribunal verified the results of the 5 April 2017 test online, confirming the applicant scored 75 in listening, 76 in reading, 90 in speaking, and 72 in writing. As the applicant was invited to apply on 4 October 2017, the test conducted on 5 April 2017 fell within the required three-year period. Consequently, the Tribunal found that the applicant had competent English at the time of invitation.

Based on this finding, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant met the criterion for competent English under clause 189.223 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the Subclass 189 visa.