Singh (Migration)

This matter concerned an appeal by Mr Salend Jeet Singh against the refusal of his Subclass 186 Employer Nomination (Permanent) (Class EN) visa, Temporary Residence Transition stream. The primary issue was whether Mr Singh met the English language proficiency requirement for the visa.

The court was required to determine whether Mr Singh satisfied the English language proficiency requirement under clause 186.222 of the Migration Regulations 1994. Specifically, the court had to consider whether Mr Singh met the definition of "competent English" as defined in regulation 1.15C, either by undertaking a specified language test with a specified score within the three years preceding the visa application, or by holding a specified passport. The court also considered whether any exemptions applied to Mr Singh's situation, particularly in light of legislative instrument LIN 19/216, which specified exemptions for visa applications made before 16 November 2019 but not for those made on or after that date.

The Tribunal found that Mr Singh's visa application was made on 7 April 2020, after the cessation of exemptions under LIN 19/216. Mr Singh did not hold a passport from the United Kingdom, the United States of America, Canada, New Zealand, or the Republic of Ireland, and therefore did not meet the passport exemption. Furthermore, he had not undertaken a specified language test in the three years prior to his application. Consequently, the Tribunal concluded that Mr Singh did not meet the English language proficiency requirement under clause 186.222. The Tribunal noted the applicant's submissions regarding the potential serious, ongoing, and irreversible harm to his family if the visa were refused, and recommended a referral to the Minister for consideration under section 351 of the Migration Act 1958.

The Tribunal affirmed the decision under review, finding that the applicants had not met the requirements for the Subclass 186 visa in the Temporary Residence Transition stream. The Tribunal recommended that the case be referred to the Minister for consideration of a more favourable decision under section 351, based on the compassionate circumstances presented.