Desai (Migration)

The Administrative Appeals Tribunal considered the case of Mr Desai, an applicant for a Subclass 186 Employer Nomination Scheme visa under the Temporary Residence Transition stream. The dispute centred on whether Mr Desai met the English language proficiency requirements for this visa subclass.

The Tribunal was required to determine if Mr Desai satisfied clause 186.222 of the Migration Regulations 1994, which outlines the English language criteria for applicants in the Temporary Residence Transition stream. Specifically, the Tribunal had to assess whether Mr Desai possessed vocational English, as defined by regulation 1.15B, or if he fell within a class of persons specified by the Minister as exempt from this requirement.

The Tribunal found that Mr Desai did not meet the definition of having "vocational English" under subregulation 1.15B(1) as he had not undertaken a specified English language test within the three years prior to his application, nor did he hold a passport from a country deemed to have vocational English. However, the Tribunal determined that Mr Desai was exempt from the English language requirement under paragraph 186.222(b) because he had completed at least five years of full-time study at a higher education institution where all tuition was delivered in English. Consequently, the Tribunal concluded that Mr Desai met the primary criteria for the visa.