Chinsamy (Migration)

This matter concerned an application for a Subclass 186 Employer Nomination (Permanent) visa under the Temporary Residence Transition stream, lodged by the first applicant who was seeking appointment as a Metal Machinist (First Class). The core dispute revolved around the applicant's English language proficiency, which was found to be below the minimum required score for the visa. The applicant also sought to rely on an exemption to the English language requirements, specifically relating to five years of full-time study delivered in English.

The Tribunal was required to determine whether the applicant met the English language proficiency requirements for the visa, either by achieving the minimum score or by qualifying for an exemption. This involved interpreting the relevant legislative instruments, including clause 186.222 of Schedule 2 to the Regulations and legislative instrument IMMI 15/005, which specified the acceptable language tests, scores, and passport holders for demonstrating competent English. The Tribunal also had to consider whether the applicant's educational background satisfied the criteria for an exemption.

The Tribunal found that the applicant did not meet the minimum score requirements for the specified English language tests. However, it concluded that the applicant likely met the criteria for an exemption under clause 186.222(b) of Schedule 2 to the Regulations, based on evidence of five years of full-time study delivered in English. The Tribunal determined that the matter should be remitted for reconsideration by the Minister, with a direction that the first applicant met the criteria under clause 186.222(b). The Tribunal also noted that other criteria, including those relating to family members, remained to be considered.