Pandelaki (Migration)

The Administrative Appeals Tribunal considered the case of Mr Pandelaki, who sought a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187, Temporary Residence Transition stream. The dispute centred on whether Mr Pandelaki met the English language proficiency requirements for the visa. The Tribunal was asked to determine if Mr Pandelaki possessed "competent English" as defined by the Migration Regulations 1994, or if he fell within a class of persons specified by the Minister for an exemption.

The primary legal issue was whether Mr Pandelaki satisfied criterion cl.187.222 of Schedule 2 to the Regulations. This criterion requires an applicant to have "competent English" at the time of application, or to be a person in a class specified by the Minister. The Tribunal examined the definition of "competent English," which typically involves achieving specified scores in approved English language tests or holding a specified passport. Mr Pandelaki had undertaken an IELTS test prior to his application, but his scores did not meet the required thresholds. The Tribunal also considered whether Mr Pandelaki qualified for an exemption under cl.187.222(b), which allows for a class of persons specified by the Minister.

The Tribunal found that Mr Pandelaki did not meet the "competent English" requirement as defined by the Regulations and specified in IMMI 15/005. It noted that the applicant's former migration agent had provided advice suggesting that a financial contribution could cover English classes, which the Tribunal understood to refer to a visa application charge for applicants not demonstrating functional English. The Tribunal concluded that this charge was not an exemption from the primary criterion of competent English. Consequently, the Tribunal affirmed the decision not to grant the visa. However, the Tribunal did consider whether to refer the matter to the Minister for personal intervention under s.351 of the Migration Act 1958, finding that the circumstances, including the applicant's long-term connection to Australia, his employer's strong economic need for his skills, and the impact of COVID-19 travel restrictions, presented unique or exceptional circumstances warranting such a referral.