Ramasamy (Migration)

The Administrative Appeals Tribunal considered an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), specifically the Temporary Residence Transition stream. The applicant sought to have a decision affirmed, which had refused to grant the visa. The core of the dispute centred on whether the applicant met the English language requirements for the visa.

The Tribunal was required to determine if the applicant satisfied the primary criteria for the Subclass 186 visa, as set out in the relevant Divisions and Subdivisions of the Regulations. Specifically, the Tribunal had to ascertain whether the applicant met the requirements of clause 186.222, which mandates either vocational English or being a person in a class specified by the Minister. The definition of vocational English, as provided in regulation 1.15B, required either achieving a specified score on a specified language test within the preceding three years or holding a specified passport.

The Tribunal found that the applicant, a citizen of Malaysia, did not hold a passport from the United Kingdom, the United States of America, Canada, New Zealand, or the Republic of Ireland, thus failing to meet the passport criterion for vocational English. Furthermore, the applicant stated in his application that he had not undertaken an English language test within the last 36 months prior to lodging his application, and he did not claim to have achieved a specified score on such a test. Consequently, the Tribunal concluded that the applicant did not possess vocational English as defined by the Regulations and the relevant legislative instrument.

As the applicant failed to satisfy the primary criteria for the Subclass 186 visa, the Tribunal found that the secondary applicants also did not satisfy the relevant criteria. Accordingly, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.