Nguyen (Migration)

This matter concerned an appeal by the applicant, Nguyen, against a decision regarding an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Employer Nomination Scheme, Temporary Residence Transition stream. The core dispute revolved around the applicant's English language proficiency at the time of the visa application. The Tribunal was tasked with determining whether the applicant met the English language requirements for this visa subclass.

The legal issues before the Tribunal were whether the applicant possessed the required level of "vocational English" as defined by the Migration Regulations 1994, or if she fell within a class of exempt persons specified by the Minister in writing. Specifically, the Tribunal had to consider whether the applicant's prior full-time study, where all tuition was delivered in English, qualified her as being exempt under immigration instrument 15/083, which referenced study in a "higher education institution."

The Tribunal reasoned that while the applicant conceded she did not meet the direct definition of vocational English, she claimed exemption under instrument 15/083. This instrument requires at least five years of full-time study in a secondary and/or higher education institution with all tuition delivered in English. The Tribunal noted that "higher education institution" was not defined in the Act or Regulations. Applying ordinary dictionary meanings, it suggested an institution providing education beyond secondary school. However, the Tribunal also considered Departmental policy, which understood "higher education" to mean tertiary studies at university or equivalent level, explicitly excluding vocational education and training courses with mixed tuition and on-the-job training, and English language courses for specific testing purposes. The Tribunal found that the applicant's studies met the criteria for exemption, and therefore, the decision was remitted for reconsideration. The Tribunal directed that the first named applicant meets the requirements of cl.186.222 of Schedule 2 to the Migration Regulations 1994. The applications of the other named applicants, who applied as members of the family unit, would be determined by reference to this outcome.