Perez Vargas (Migration)

This matter concerned an appeal by Dr. Perez Vargas and his wife against the refusal of their Subclass 186 Employer Nomination Scheme visa application, specifically under the Temporary Residence Transition stream. The primary issue before the Tribunal was whether Dr. Perez Vargas met the English language proficiency requirements stipulated in clause 186.222 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if Dr. Perez Vargas possessed "competent English" as defined by regulation 1.15C, which necessitates either undertaking a specified language test within the three years preceding the visa application or holding a passport from a specified country. Alternatively, the Tribunal had to consider if Dr. Perez Vargas fell within a class of persons exempted from this requirement, as specified in legislative instrument IMMI 18/045.

The Tribunal found that Dr. Perez Vargas did not meet the "competent English" requirement as he had not undertaken a specified language test in the preceding three years and did not hold a passport from the United Kingdom, the United States of America, Canada, New Zealand, or the Republic of Ireland. Furthermore, he did not satisfy the exemption criteria of having completed at least five years of full-time study in a secondary or higher education institution where all tuition was delivered in English. Consequently, the Tribunal concluded that Dr. Perez Vargas did not meet the criteria for the visa. As his wife's application was dependent on his meeting the primary criteria, her application also failed.

Despite affirming the decision not to grant the visa, the Tribunal considered whether the circumstances warranted referral to the Minister for intervention under section 351 of the Migration Act 1958. The Tribunal noted extensive documentation supporting Dr. Perez Vargas' significant contributions to the medical profession and the community in regional New South Wales over more than a decade, evidenced by a petition signed by over 600 patients and numerous letters of support. It also highlighted the applicants' Australian permanent resident daughter and three Australian citizen grandchildren, and the profound hardship their departure would cause. Considering these factors, along with the potential unfairness arising from the application of the legislation in this case, particularly in light of previous judicial comments regarding the clarity of online visa application questions, the Tribunal referred the matter to the Department for the Minister's consideration under section 351.