Muhammad (Migration)

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically under the temporary residence transition stream. The core dispute revolved around whether the applicant met the English language proficiency requirements for the visa. The applicant had not achieved the required score in a specified language test and did not hold a passport from a country exempt from this requirement. Instead, the applicant sought to rely on an exemption for individuals who had 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 was required to determine if the applicant's claimed periods of study in Pakistan and Australia satisfied the criteria for the English language exemption. This involved assessing whether the institutions attended qualified as "secondary and/or higher education institutions" and whether the study undertaken was "full-time" and "delivered in English." The applicant presented evidence of various educational qualifications, including a Secondary School Certificate, Intermediate of Commerce, Bachelor of Commerce, an English for Academic Purposes course, and Certificate III and IV in Commercial Cookery.

The Tribunal found that the applicant had not demonstrated that the Commercial Cookery studies were undertaken full-time, noting that the qualifications were awarded based on recognition of prior learning. Furthermore, the Tribunal did not consider the English language course to be full-time study. Consequently, the Tribunal concluded that the applicant had not established that he met the criteria for the English language exemption.

Given these findings, the Tribunal remitted the visa application for reconsideration by the Minister. The remittal was made with a direction that the applicant met the criteria under cl 186.222 of Schedule 2 to the Regulations, implying that other criteria for the visa would still need to be assessed.