Pagobo (Migration)

This matter concerned an appeal by Mr Junilo B Pagobo and his family members (the applicants) against the decision of a delegate to refuse their applications for Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream. The appeal was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant, Mr Pagobo, satisfied the English language proficiency requirement as stipulated by regulation 186.222 of the Migration Regulations 1994 at the time of his visa application. This involved determining whether he possessed "competent English" as defined by the relevant legislative instruments, considering the date of his application and the prescribed methods for demonstrating this proficiency.

The Tribunal considered the evidence, including IELTS test results, academic transcripts, and an affidavit. It noted that for applications made on or after 1 July 2017, "competent English" was required, which could be demonstrated by undertaking a specified language test within three years prior to the application or by holding a specified passport. The Tribunal found that Mr Pagobo did not hold a specified passport and had not undertaken a relevant English language proficiency test within the three-year period preceding his application on 17 May 2023. Although he later passed an IELTS test after receiving the notice of refusal, this was outside the statutory timeframe. The Tribunal also determined that the secondary applicants did not meet a related requirement under cl.186.311.

Consequently, the Tribunal affirmed the delegate's decision to refuse the visa applications, finding that the applicants had not satisfied the English language proficiency requirements at the time of application.