Le (Migration)

This matter concerned an application for an Employer Nomination Scheme visa (subclass 856) by Ms Le, who was nominated by her employer. The dispute centred on whether Ms Le met the English language proficiency requirements for the visa. The case was heard by Deputy President J.L Redfern PSM of the Tribunal.

The primary legal issue before the Tribunal was whether Ms Le satisfied the criteria under sub-regulation 856.213(c) of the Migration Regulations. Specifically, the Tribunal had to determine if Ms Le possessed "competent English" and a diploma or higher qualification, or alternatively, if "exceptional circumstances" applied to allow her to satisfy the criteria through having "vocational English" despite not meeting the formal definition.

The Tribunal reasoned that while Ms Le did not possess "competent English" or a diploma, nor did she meet the definition of "vocational English" as set out in regulation 1.15B, exceptional circumstances were present. Evidence indicated Ms Le had been employed as a Cook since 2009 and was considered vital to the operation of her employer's business, which operated three restaurants. Her employer, Mr Vong, who was in poor health, stated that Ms Le's departure would necessitate the closure of two restaurants. Ms Le's role involved not only cooking but also overseeing kitchen staff, menu preparation, and ensuring compliance with work health and safety regulations, all of which she managed effectively with her existing English skills. The Tribunal concluded that these factors constituted exceptional circumstances, thereby satisfying sub-regulation 856.213(c).

The Tribunal remitted the matter for reconsideration with a direction that Ms Le satisfies clause 856.213 of Schedule 2 to the Migration Regulations.