Yelturk (Migration)

The Administrative Appeals Tribunal considered the case of Yelturk, an applicant for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187 (Regional Sponsored Migration Scheme), Temporary Residence Transition stream. The dispute centred on whether Mr Yelturk met the vocational English language requirement at the time of his visa application.

The primary legal issue before the Tribunal was to determine if Mr Yelturk satisfied the criteria for vocational English as stipulated in clause 187.222 of the Migration Regulations 1994. This clause requires applicants in the Temporary Residence Transition stream to either possess vocational English or belong to a specified exempt class. Vocational English is defined by regulation 1.15B, which generally requires a specified language test to be undertaken within three years prior to the application, achieving a minimum score of 5 in each of the four components (listening, reading, writing, and speaking), or holding a specified passport.

The Tribunal found that Mr Yelturk’s IELTS test, taken within the relevant three-year period before his application on 18 November 2015, did not meet the required standard. While he achieved an overall score that might have been acceptable in other contexts, his score of 4.5 for reading fell below the mandatory minimum of 5 for each component. The Tribunal noted that it did not have the discretion to waive this specific English language requirement. Despite evidence of Mr Yelturk's contribution to the regional community and his business expansion plans, and letters of support from his employer and local member, these factors could not overcome the failure to meet the explicit English language proficiency criteria.

Although the Tribunal affirmed the decision not to grant the visa due to the unmet English language requirement, it considered that Mr Yelturk's circumstances, particularly his economic contribution to a regional area, warranted referral to the Minister for consideration of discretionary powers under section 351 of the Migration Act 1958.