Endaya (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream. The applicant sought to satisfy the English language requirements, either by demonstrating vocational English or by qualifying for an exemption. The decision was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the English language proficiency requirements for the visa. This involved determining whether the applicant possessed "vocational English" as defined by the regulations, or if they were exempt from this requirement. The applicant contended that they were exempt due to having completed a significant portion of their secondary and vocational education in English.

The Tribunal considered the requirements of clause 186.222 of the Regulations, which mandates either vocational English or an exemption under legislative instrument IMMI 17/058. While the applicant held a Philippine passport, which was not specified as demonstrating vocational English, they argued for an exemption under IMMI 17/058. Specifically, item 12 of IMMI 17/058 exempts persons who have completed at least 5 years of full-time study in secondary and/or higher education where all tuition was delivered in English. The Tribunal found that the applicant had provided sufficient evidence of completing 4 years of secondary schooling in English, and 2 years of post-secondary vocational education also in English. However, the exemption requires "at least 5 years," and the Tribunal needed to consider the post-secondary study to meet this threshold.

Given these findings, the Tribunal remitted the visa application for reconsideration by the Minister. The Tribunal directed that the applicant was to be considered as meeting the criteria under clause 186.222 of Schedule 2 to the Regulations.