THAVEESUK (Migration)

This matter concerned an appeal by Mr. Thaveesuk against a decision affirming the refusal of his Subclass 186 Employer Nomination Scheme visa application, specifically under the Temporary Residence Transition stream. The core dispute revolved around Mr. Thaveesuk's English language proficiency, a mandatory criterion for this visa subclass. The Administrative Appeals Tribunal (AAT) was tasked with determining whether Mr. Thaveesuk met the English language requirements as stipulated in the relevant regulations.

The Tribunal was required to consider two primary questions. Firstly, whether Mr. Thaveesuk possessed "competent English" as defined by the Migration Regulations 1994. This definition typically involves either undertaking a specified language test within a certain timeframe or holding a passport from a designated English-speaking country. Secondly, the Tribunal had to ascertain if Mr. Thaveesuk fell within a class of persons exempted from the English language proficiency requirement, as specified in a relevant legislative instrument. This exemption pertained to individuals who had completed at least five years of full-time study in a secondary or higher education institution where all tuition was delivered in English.

The Tribunal found that Mr. Thaveesuk did not meet the definition of "competent English" because he had not undertaken a specified English language test within the three years prior to his visa application, nor did he hold a passport from one of the five specified countries. Regarding the exemption, while Mr. Thaveesuk provided evidence of completing several vocational education and training (VET) courses over 5½ years, the Tribunal determined that these institutions, specifically the Sydney School of Business and Technology and Evolution Hospitality Institute, were not considered "higher education institutions" for the purposes of the exemption. Consequently, the Tribunal affirmed the decision under review, concluding that Mr. Thaveesuk did not satisfy the English language proficiency criteria for the Subclass 186 visa.

Despite affirming the visa refusal, the Tribunal decided to refer the matter to the Minister for consideration under section 351 of the Migration Act 1958. This referral was made due to potential considerations of exceptional economic benefit and the possibility that the strict application of the relevant legislation might lead to an unfair or unreasonable outcome in Mr. Thaveesuk's specific circumstances.