Kaur (Migration)

The Administrative Appeals Tribunal considered an appeal by Ms Kaur concerning a Subclass 186 Employer Nomination Scheme visa application. The primary issue was whether Ms Kaur, the applicant, met the English language proficiency requirements for the visa, specifically under clause 186.222 of Schedule 2 to the Regulations. The applicant had not met the standard English language test requirements and did not hold a specified passport.

The Tribunal was required to determine if Ms Kaur satisfied the criteria for competent English or fell within a class of persons specified by the Minister in a legislative instrument for an exemption. The relevant legislative instrument, IMMI 18/045, provides an exemption for applicants 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 noted that for visa applications made on or after 1 July 2017, the required level of English proficiency is "competent English," as defined in regulation 1.15C of the Regulations.

The Tribunal reasoned that the applicant sought to rely on the exemption provided by IMMI 18/045. The core of the dispute involved whether the applicant's previous educational qualifications, specifically certificate courses, constituted "full-time study in a secondary or higher education institution" for the purposes of the exemption. The Tribunal considered the definitions of "institution" and "provider" and the regulatory framework for education in Australia, including the roles of TESQA and ASQA. However, the Tribunal did not make a final determination on whether the applicant's studies met the exemption criteria.

Consequently, the Tribunal remitted the visa applications for reconsideration. The direction was that the primary applicant, Ms Kaur, met the criteria under clause 186.222 of Schedule 2 to the Regulations, implying that further assessment of her eligibility under the exemption was required. The Tribunal also remitted the secondary applicants' visa applications for reconsideration.