HETTIGE (Migration)

The Administrative Appeals Tribunal considered an appeal by Mr Hettige concerning a Subclass 186 Employer Nomination Scheme visa application. The primary issue was whether Mr Hettige met the English language proficiency requirements for the temporary residence transition stream of this visa subclass.

The Tribunal was required to determine if Mr Hettige satisfied clause 186.222 of the Regulations, which mandates either competent English or being a person specified in a legislative instrument for an exemption. The applicant had not undertaken a specified English language test within three years of the application, nor did he hold a passport from a country specified in the relevant legislative instrument. The Tribunal therefore examined whether Mr Hettige qualified for an exemption under IMMI 18/045, which exempts individuals who have completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English.

The Tribunal reasoned that the applicant's completion of an advanced diploma and two degrees in Australia, all of which involved tuition delivered in English, likely satisfied the exemption criteria. The Tribunal interpreted "institution" and "provider" in the context of higher education, finding that Australian universities and colleges function as institutions that provide higher education. The Tribunal noted that departmental policy, while not determinative, referenced the Australian Qualifications Framework in assessing such criteria.

Consequently, the Tribunal remitted the visa applications for reconsideration, directing that Mr Hettige met the English language proficiency criteria under clause 186.222. The applications for both the primary and secondary applicants were remitted to the Minister for reconsideration of the remaining visa criteria.