Huynh (Migration)

This matter concerned an appeal by Mr Huynh and other applicants against a decision to refuse their applications for Employer Nomination (Permanent) (Class EN) visas, specifically under the Subclass 186 (Employer Nomination Scheme) in the Temporary Residence Transition stream. The primary issue before the Tribunal was whether Mr Huynh met the English language proficiency requirements for the visa.

The Tribunal was required to determine two key issues: firstly, whether Mr Huynh possessed "competent English" at the time of his visa application, and secondly, whether he belonged to a class of persons specified in a legislative instrument as being exempt from the English language requirement. These requirements were stipulated by clause 186.222 of Schedule 2 to the Migration Regulations 1994.

The Tribunal reasoned that to demonstrate "competent English," an applicant must either have undertaken a specified language test within the preceding three years and achieved a specified score, or hold a passport from a specified country. The evidence showed Mr Huynh had not undertaken such a test and his Vietnamese passport was not among the specified countries. Furthermore, the Tribunal considered the exemption provided by IMMI 18/045, which applied to persons who had completed at least five years of full-time study where all tuition was delivered in English. The Tribunal found that Mr Huynh did not meet this exemption either. As neither limb of clause 186.222 was satisfied, the Tribunal affirmed the decision to refuse the visa. Consequently, the applications of the other named applicants, who relied on being family members of the primary applicant, were also affirmed.