Bhatt (Migration)

This matter concerned an appeal by the applicant, Bhatt, against a decision to affirm the refusal of an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The dispute centred on whether the applicant met the English language proficiency requirements for the visa. The decision was made by De-Anne Kelly, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 186.222 of Schedule 2 to the Migration Regulations 1994. This clause requires an applicant, at the time of application, to either have competent English or be a person within a class specified by the Minister in a legislative instrument. The Tribunal was required to determine if the applicant met either of these criteria, considering the relevant legislative instruments and the applicant's qualifications and circumstances.

The Tribunal reasoned that the applicant sought to satisfy the English language requirement by falling within a class of persons specified in legislative instrument IMMI 18/045, which allows for an exemption if the applicant has completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English. The Tribunal noted that the applicant had not met the specified language test results or held a specified passport. Crucially, the Tribunal also considered the procedural fairness obligations under section 359AA of the Migration Act 1958, observing that the Tribunal had explained its intention to rely on certain information and invited comment. However, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the Employer Nomination (Permanent) (Class EN) visa applications for reconsideration. It directed that the first applicant be considered to meet the criteria under clause 186.222 of Schedule 2 to the Regulations. The secondary applicants' visa applications were also remitted to the Minister for reconsideration.