Bacagan (Migration)

This decision concerns an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), by Mr. Bacagan. The primary dispute revolved around whether Mr. Bacagan met the English language criteria for the visa, specifically clause 186.222(b). The matter was heard by Karen Synon, a member of the Tribunal.

The legal issues before the Tribunal were whether Mr. Bacagan was exempt from the English language requirements for the Subclass 186 visa, and if not, whether his circumstances warranted a referral for Ministerial Intervention. The Tribunal was required to determine if Mr. Bacagan fell within the defined classes of persons exempt from the English language criteria as set out in Legislative Instrument 15/083, and to assess if his case presented unique or exceptional circumstances justifying a request for the Minister to exercise their powers under section 351 of the Migration Act 1958.

The Tribunal reasoned that Mr. Bacagan did not satisfy the English language criteria because he did not meet the requirements for either of the two applicable exemption classes. He confirmed he would not earn the high income required for the first class, and after initial assertions, he admitted that his secondary education was not entirely delivered in English, thus failing to meet the criteria for the second class of exemption. Consequently, he did not satisfy clause 186.222(b) and therefore did not meet the overall requirements for the visa in the Temporary Residence Transition stream. Regarding Ministerial Intervention, while acknowledging Mr. Bacagan was a valued employee, the Tribunal concluded his circumstances were not unique or exceptional enough to warrant a referral for the Minister to intervene.

The Tribunal affirmed the decision not to grant Mr. Bacagan the Subclass 186 visa. The Tribunal also noted it had no jurisdiction concerning a second applicant.