Hasitawet (Migration)

The applicant, Hasitawet, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), under the temporary residence transition stream. The applicant had applied for the visa as a café or restaurant manager, relying on evidence of competent English language proficiency.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the applicant had demonstrated the required level of English language proficiency. Specifically, the court had to determine if the applicant's completion of certificate and diploma courses at a higher education institution, where all tuition was delivered in English, satisfied the criterion for competent English language proficiency, particularly in light of the distinction between post-secondary and higher education and the accreditation of institutions and courses.

The court reasoned that while the applicant had attended an institution where tuition was delivered in English, only one of the institutions attended was an accredited higher education institution. The applicant's certificate and diploma courses were not considered to be at the higher education level required by the relevant regulations for demonstrating competent English language proficiency through study. Therefore, the court affirmed the decision under review, finding that the applicant had not met the English language proficiency requirements for the visa.