Kumar (Migration)

This matter concerned an appeal by the applicant against the decision of the Administrative Appeals Tribunal (the Tribunal) to affirm the refusal of a Regional Sponsored Migration Scheme visa (subclass 187) in the Temporary Residence Transition Stream. The applicant sought this visa for the position of Mixed Crop Farmer.

The primary legal issue before the court was whether the applicant met the English language proficiency requirements for the visa. Specifically, the court had to determine if the applicant satisfied either the general requirement of "competent English" as defined by regulation 1.15C, or if they fell within a specified class of persons exempt from this requirement under paragraph 187.222(b) of Schedule 2 to the Regulations, as detailed in the instrument LIN 19/216.

The court considered the provisions of section 359AA of the Migration Act 1958 (Cth), which outlines the Tribunal's obligations when presenting information that may lead to affirming a decision. The Tribunal had explained to the applicant the potential reasons for affirming the decision, the relevance of the information, and the consequences of relying on it, offering various avenues for response. The applicant's eligibility hinged on demonstrating competent English through a language test or by meeting the criteria for an exemption. The exemption specified in LIN 19/216 required the applicant to have completed at least five years of full-time study in a secondary or higher education institution where all tuition was delivered in English.

The Tribunal affirmed the decision under review.