Singh (Migration)

This matter concerned an appeal by Mr. Singh against the decision not to grant him and his family members an Employer Nomination (Permanent) (Class EN) visa, specifically under the Subclass 186 Temporary Residence Transition stream. The primary issue revolved around Mr. Singh's English language proficiency, a requirement for this visa subclass.

The Tribunal was tasked with determining whether Mr. Singh met the English language proficiency requirements for the visa application, which was made before 1 July 2017, thus requiring "vocational English." This definition could be satisfied by undertaking a specified language test or holding a specified passport. Alternatively, the Tribunal had to consider if Mr. Singh belonged to a class of exempt persons as specified by the Minister in writing, specifically those who had completed at least five years of full-time study in a secondary and/or higher education institution where all tuition was delivered in English.

The Tribunal reasoned that Mr. Singh did not meet the primary definition of vocational English as he had not undertaken a specified language test and did not hold a specified passport. Therefore, his eligibility depended on him falling within the exempt class. The Tribunal examined the meaning of "higher education institution" within the context of the relevant immigration instrument and departmental policy. It noted that while dictionary definitions suggest education beyond secondary school, departmental policy clarifies that "higher education" means tertiary studies at university or equivalent level, explicitly excluding vocational educational training (VET) courses and English language courses taken for the purpose of obtaining an English test score. The Tribunal found that the applicant's studies did not meet this definition of a higher education institution where all tuition was delivered in English. Consequently, as Mr. Singh did not satisfy the primary criteria for the visa, his family members could not satisfy the secondary criteria.

The Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.