Dongjun (Migration)

The Administrative Appeals Tribunal (AAT) considered the application of Mr. Dongjun for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of the Subclass 186 (Employer Nomination Scheme). The central dispute concerned whether Mr. Dongjun met the English language proficiency requirement, which mandates "competent English" as defined by IMMI 18/045. This instrument outlines a class of exempt applicants who can satisfy the requirement through five years of full-time study conducted in English.

The Tribunal was tasked with determining whether Mr. Dongjun's prior education qualified him for this exemption. Specifically, the AAT had to interpret the terms "higher education," "institution," and "provider" as used in IMMI 18/045 to ascertain if his study undertaken in China constituted the requisite full-time study in English at a recognised institution.

The Tribunal reasoned that the applicant's tertiary qualifications from a Chinese university did not meet the definition of "higher education" as contemplated by the instrument, nor was the institution considered a "provider" in the context of the exemption. The AAT found that the study undertaken, while in English, did not align with the specific criteria for exemption set out in IMMI 18/045. Consequently, the Tribunal remitted the decision to the delegate for reconsideration.