Nguyen (Migration)

The Administrative Appeals Tribunal considered the case of Ms. Nguyen, who sought review of a decision not to grant her an Employer Nomination (Permanent) (Class EN) visa, subclass 186, Temporary Residence Transition stream. The primary dispute concerned whether Ms. Nguyen met the English language proficiency requirements for the visa at the time of her application.

The Tribunal was required to determine if Ms. Nguyen had successfully undertaken a relevant English language test prior to her visa application, or if she fell within an exempt class of persons. Specifically, for applications made before 1 July 2017, the requirement was vocational English, defined by either achieving a specified score in a recognised test within three years of the application or holding a specified passport. The Tribunal also considered exemptions related to high earnings or completion of at least five years of full-time study in English-medium institutions.

The Tribunal found that Ms. Nguyen, a Vietnamese national, applied for the visa on 3 June 2017. Despite undertaking multiple IELTS and PTE Academic tests in the preceding three years, she did not achieve the required scores in all components in a single sitting. Furthermore, the Tribunal was not satisfied that she met the exemption criteria. Her nominated occupation as Café or Restaurant Manager had a listed salary of $55,000 per year, well below the $180,001 threshold for the earnings exemption. Additionally, the evidence did not establish that she had completed at least five years of full-time study in English, with her provided qualifications (a Certificate IV and an uncompleted Diploma of Business) not meeting this duration.

Consequently, the Tribunal affirmed the decision not to grant the visa to Ms. Nguyen. The applications of her family members, which were dependent on her eligibility, were also affirmed as refused.