Santoso (Migration)

The Administrative Appeals Tribunal considered an appeal by Mr. Santoso concerning a Subclass 186 Employer Nomination Scheme visa, specifically the Temporary Residence Transition stream. The core dispute revolved around Mr. Santoso's English language proficiency at the time of his visa application.

The Tribunal was required to determine whether Mr. Santoso met the English language requirements as stipulated by clause 186.222 of Schedule 2 to the Migration Regulations 1994. This clause mandates that an applicant must either possess "competent English" or fall within a class of persons specified by the Minister in a legislative instrument. In this instance, the relevant instrument was IMMI 18/045, which provides an exemption for individuals who have 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 reasoned that the applicant sought to rely on the exemption provided by IMMI 18/045. The critical question was whether the educational institutions where Mr. Santoso undertook his studies qualified as "institutions" and "providers" in the context of the exemption, and whether the study was delivered entirely in English. While the Tribunal noted the definitions of "institution" and "provider" and the regulatory framework for higher education and vocational education in Australia, it concluded that further consideration was needed to definitively determine if Mr. Santoso's specific educational background met the criteria of IMMI 18/045.

Consequently, the Tribunal remitted Mr. Santoso's visa application for reconsideration by the Minister, with a direction that he met the English language proficiency criterion under clause 186.222. The applications of any secondary applicants were also remitted for reconsideration.