Szilvasi (Migration)

This matter concerned an appeal by an applicant, Mr Szilvasi, against the decision of the Department not to grant him a Regional Employer Nomination (Permanent) (Class RN) visa, specifically under the Temporary Residence Transition stream of the Subclass 187 (Regional Sponsored Migration Scheme) visa. The core of the dispute revolved around the applicant's English language proficiency.

The legal issue before the Tribunal was whether Mr Szilvasi met the requirements of clause 187.222 of Schedule 2 to the Migration Regulations 1994, which stipulated a need for "Competent English" for applications made on or after 1 July 2017. This requirement could be met by achieving a specified score in a designated English language test or by holding a specified passport. The applicant argued that despite numerous attempts to pass IELTS tests, he had consistently failed to achieve the required score of 6.0 in each of the four components. He also presented evidence of his long-term residence in Australia, his employment as a tradesperson, a letter of support from his employer attesting to his workplace English skills, and the fact that his adult son was a permanent resident.

The Tribunal considered the applicant's submissions and the evidence provided, including multiple IELTS test results which did not meet the specified criteria for Competent English. The Tribunal noted that while the applicant had lived in Australia for over 20 years and had a supportive employer, the regulations for the visa subclass were clear regarding the English language proficiency requirement. The Tribunal found that the applicant did not meet the prescribed level of Competent English as defined by the regulations and specified in legislative instrument 15/005.

Despite affirming the decision not to grant the visa, the Tribunal referred the matter to the Department for consideration by the Minister under section 351 of the Migration Act 1958, acknowledging the applicant's circumstances, including his long residence and family ties in Australia.