Tran (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The applicant sought review of a decision to refuse this visa.

The primary legal issue before the Tribunal was whether the applicant met the English language proficiency requirements as stipulated by clause 186.222 of the Migration Regulations 1994. Given the visa application date of 28 February 2017, the relevant standard was "vocational English," as defined in regulation 1.15B. This definition requires either achieving a specified score in an approved English language test taken within the three years preceding the application, or holding a passport from a specified country.

The Tribunal considered an IELTS test taken by the applicant on 24 March 2018, which achieved an overall band score of 6.0 with component scores of 6.5 for listening, 6.5 for reading, 5.0 for writing, and 5.5 for speaking. While these scores met the minimum component score of 5 for each part as specified in legislative instrument IMMI 15/005, the Tribunal found that the test was conducted after the visa application date. Regulation 1.15B(1)(ba) mandates that the test must have been conducted within the three years immediately before the visa application. The applicant also conceded that prior tests did not meet the required scores in all four components of a single test. Furthermore, the applicant held a Vietnamese passport, which did not satisfy the alternative criterion of holding a passport from a specified English-speaking country. Consequently, the Tribunal concluded that the applicant did not satisfy the English language proficiency requirements.

The Tribunal also affirmed the refusal of subclass 186 visas for the second, third, and fourth named applicants, finding they did not meet the secondary criteria as family members of the primary applicant and had not demonstrated they met the primary criteria in their own right. The Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas.