Salazar Macedo (Migration)

The Administrative Appeals Tribunal considered the case of Mr Gabriel Juan Salazar Macedo concerning his application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) under the temporary residence transition stream. The core dispute revolved around whether Mr Macedo met the English language proficiency requirements for this visa subclass.

The Tribunal was required to determine if Mr Macedo possessed "competent English" at the time of his visa application, as stipulated by clause 186.222(a) of Schedule 2 to the Migration Regulations 1994, or if he fell within a class of persons specified by the Minister for the purposes of clause 186.222(b). For applications made on or after 1 July 2017, the required standard is "competent English," defined in regulation 1.15C. This definition is met by either achieving a specified score in a designated language test within the preceding three years or by holding a passport from a specified country.

The Tribunal found that Mr Macedo held a passport from the Republic of Peru, which did not satisfy the passport exemption. Consequently, he was required to demonstrate he had achieved the specified scores in a recognised English language test within the three years prior to his application date of 13 July 2020. While evidence was provided that Mr Macedo had booked IELTS tests for dates after his application, there was no evidence that he had actually undertaken a specified language test and achieved the required scores before or at the time of his application. As the criteria for the temporary residence transition stream were not met, the Tribunal affirmed the decision not to grant the visa.