Hu (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an applicant seeking a Subclass 186 (Employer Nomination Scheme) visa under the temporary residence transition stream. The central dispute concerned the applicant's English language proficiency, specifically whether they met the requirement for "competent English" or qualified for an exemption. The applicant had not undertaken a specified language test, and the Tribunal had to determine if their educational qualifications met the criteria for an exemption.

The legal issues before the Tribunal were whether the applicant satisfied clause 186.222 of Schedule 2 to the Migration Regulations 1994, which requires an applicant to have competent English or be a person specified in a legislative instrument. The Tribunal also had to consider the scope and application of legislative instrument IMMI 18/045, which provides an exemption for 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 also had to assess whether it had complied with its procedural obligations under section 359AA of the Migration Act 1958 in its dealings with the applicant.

The Tribunal reasoned that the applicant's claim for an exemption under IMMI 18/045 hinged on whether their diploma and advanced diploma courses constituted "higher education" and whether the institutions providing these courses were considered "providers" in the context of the instrument. The Tribunal noted that the English language proficiency requirement is assessed at the time of application. While the applicant had requested an adjournment to undertake an English test after the application date, the Tribunal correctly declined this as the test results would not be material to the decision. The Tribunal also found that it had complied with its obligations under section 359AA of the Act by clearly communicating potential reasons for affirming the decision and providing the applicant with opportunities to respond.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant met the criteria under clause 186.222 of Schedule 2 to the Regulations, implying that the applicant's educational qualifications were sufficient to satisfy the English language requirement, either directly or through the exemption. The visa application was remitted to the Minister for consideration of the remaining criteria.