Joshi (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically a Subclass 186 (Employer Nomination Scheme) visa. The applicant sought to satisfy the English language proficiency requirement under clause 186.222 of the Regulations. The Tribunal was required to determine whether the applicant met the criteria for vocational English or fell within a class of persons specified by the Minister.

The central legal issue was the interpretation and application of clause 186.222, which outlines two pathways for satisfying the English language requirement: having vocational English or being a person in a class specified by the Minister. Vocational English is defined by regulation 1.15B, which requires either undertaking a specified language test with a certain score within the preceding three years or holding a specified passport. The applicant, a citizen of Nepal, did not hold a passport from the United Kingdom, the United States of America, Canada, New Zealand, or the Republic of Ireland, nor had he undertaken a specified English language test within the relevant timeframe.

The Tribunal found that the applicant did not satisfy the "vocational English" limb of clause 186.222. However, the applicant had indicated an intention to seek an exemption based on having completed at least five years of full-time study in an institution where all tuition was delivered in English. The Tribunal concluded that, based on the applicant's stated educational background, he met the requirements of paragraph 186.222(b) of the Regulations, which pertains to being a person in a class of persons specified by the Minister. Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 186.222.