Tribunal: Member Wan Shum

The Department of Home Affairs (the Department) refused to grant the applicant an Employer Nomination (Permanent) Subclass 186 visa. The applicant applied to the AAT for a review of the decision.

This type of visa has multiple “streams” an applicant may choose to apply through. The applicant was seeking the visa in the Temporary Residence Transition stream. Under this stream, it is a requirement that the applicant has vocational English at the time of application.[1]

Vocational English is defined in r.1.15B of the Migration Regulations 1994. A person will meet the definition if he or she either undertook a specified language test in the three years preceding the visa application and achieved a specified score; or holds a specified passport.

The applicant told the AAT that he had undertaken the required test prior to making the visa application but did not achieve the minimum score for vocational English.

There are two types of persons who are effectively exempt from meeting the requirement of having vocational English.[2] These are individuals whose earnings will be at least equivalent to the current Australian Tax Office top individual income tax rate or individuals who have completed at least five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English.

The AAT found that there was no evidence before it that the applicant met the prescribed criteria or satisfied the exemptions. The AAT concluded that the applicant did not meet the vocational English requirement.

The AAT affirmed the Department’s decision. 

Read the full decision on AustLII.

 

[1] Clause 186.222 of Schedule 2 to the Migration Regulations 1994.