1419459 (Migration)

[2015] AATA 3289

1419459 (Migration) [2015] AATA 3289 (13 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ronald Deepak Chand
Ms Roshni Lata Chand
Miss Raychael Roshika Chand
Mr Rayneol Rajneesh Chand

CASE NUMBER:  1419459

DIBP REFERENCE(S):  BCC2014/1886936

MEMBER:Wan Shum

DATE:13 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.222 of Schedule 2 to the Regulations.

Statement made on 13 August 2015 at 3:00pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 November 2014 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 (Employer Nomination Scheme) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the Subclass 186 visas on 2 August 2014. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

3. The first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Business Machine Mechanic. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

4. The delegate found that the applicant did not meet the English language proficiency criterion set out in cl.186.222 of Schedule 2 to the Regulations and refused to grant the visas.

5. The applicants have sought review of that decision

   CONSIDERATION OF ISSUE

6. The issue on review is whether the applicant satisfies cl.186.222 which requires that, at the time the visa application was made, the applicant had vocational English (cl.186.222(a)), or is exempt from having that level of English proficiency because the applicant is a person in a specified class of persons (cl.186.222(b) and legislative instrument IMMI 12/059). Although the applicant completed the visa application form to indicate that he had competent English, he later claimed to be exempt from the English language proficiency. He provided material in support of his claim to the department and provided additional documents to the Tribunal. The applicant also appeared before the Tribunal on 2 June 2015 to give evidence and present arguments in person.

7. The Tribunal will first consider whether the applicant has vocational English.

   Whether the applicant has vocational English

8. ‘Vocational English’ is defined in r.1.15B of the Regulations.  A person who has applied for the visa after 1 July 2012 will have vocational English if he or she either:

   ·undertook a specified language test in the three years preceding the visa application and achieved a specified score (r.1.15B(1)); or

   ·holds a specified passport (r.1.15B(2)).

9. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005. For visa applications made on or after 1 July 2012 and before 23 November 2014, the applicant must have achieved an International English Language Test System (IELTS) test score of at least 5 for each of the 4 test components in an IELTS test; or a score of at least ‘B’ for each of the 4 test components in the Occupational English Test (OET). The specified passports are a passport of the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland.

10. The applicant told the Tribunal that he has a passport of Fiji which is not one of the specified passports and he does not meet the requirements of r.1.15B(2). The applicant had indicated on the visa application form that he had undertaken an IELTS test on 8 March 2014 and achieved competent English. The test reference number provided was 13AU001457CHAR106G. The results of that test were provided to the department, indicating that he achieved 5.5 in listening, 4.5 in reading and 6.5 in the writing and speaking components. This result does not meet the specified score for vocational English as defined.

11. The applicant referred to the English language requirement being amended recently, to an overall band score of 5. However, this change to the minimum scores for the English language requirement applies to Subclass 457 visa applicants and not subclass 186 visa applicants (refer IMMI 15/028).

12. The applicant did not provide evidence of having attempted an OET. As the applicant has not undertaken any of the specified language tests in the three years preceding the visa application and achieved the specified score, he does not meet the requirements of r.1.15B(1).

13. The applicant therefore does not have ‘vocational English’ as defined. He thus does not meet the requirements of cl.186.222(a).

    Whether exempt from the English language criteria

14. The applicant claimed that he was exempt from the English language criteria. The Tribunal has thus considered whether the applicant is in a class of persons specified by the Minister in IMMI 12/059 (being the relevant instrument in writing for subparagraph 186.222(b) and 186.232(b)). There are three classes of persons specified in the instrument. The applicant is not a Minister of Religion and he does not come within Class 1. The applicant advised the Tribunal that his earnings were not at least equivalent to the top individual income tax rate of $180,001 and he does not come within Class 2.

15. The remaining class of persons specified by the Minister is Class 3 which refers to:

    Persons 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.

16. The applicant claimed to have studied 6 years full time at secondary school education level in the English language in Fiji. He claimed to have undertaken one year of study at Vashist Muni Memorial School in Tavua, Fiji in 1983 (Year 8); three years of study at Tavua College in Tavua, Fiji from 1984 to 1986 (Years 9, 10 and 11, with Year 11 being the NZ School Certificate); one year of study at Khalsa College in BA, Fiji for the NZ School Certificate in 1987 (Year 11); and one year of study at Nukuloa College, BA, Fiji Islands for the NZ University Entrance in 1988 (Year 12).

17. If there is evidence to support his claim, the applicant would come within Class 3 and be exempt from the English language criteria.

18. The applicant provided the following as evidence of his claim to Immigration:

    ·A letter dated 4 November 2014 from Tavua College in Tavua, Fiji, stating that he was a student of that college from 1984 to 1986, and that the college is an “English medium school”. It states that the applicant joined Form 3 (Year 9) in 1984 and completed his Form 5 (Year 11) New Zealand School Certificate Examination in 1986;

    ·A letter dated 17 November 2014 from Nukuloa College, BA, Fiji Islands, stating that he studied there in 1988 and that the medium of communication at the school is English;

    ·A letter from Nukuloa Secondary College dated 25 January 1989 from the Vice Principal at the time stating that “during the 1988 school year” he knew the applicant “when [he] served as his English teacher in New Zealand University Entrance Examination”;

    ·A document entitled ‘Testimonial’ from Nukuloa Secondary College dated 15 September 1988 stating that the applicant was enrolled there in 1988, and listing the subjects undertaken in the Final Year. It further indicates that the applicant passed the following examinations: Fiji Eight Year Examination in 1983 and Fiji Junior Certificate in 1985.

19. The delegate was not satisfied on the evidence presented that the applicant came within any of the classes specified by the Minister and refused the visas. On review, the applicant submitted a letter from the Ministry of Education, Culture & Arts, Fiji about his secondary study. However, the Tribunal requested checks of the applicant’s documents and Mr Md Masud from the Ministry of Education, Culture & Arts, Fiji advised Immigration officers that he had not obtained the records of completion from the schools themselves but that he had sighted certificates provided by the applicant to confirm attendance. As the certificates given by the applicant to the Immigration and on review prior to the checks were incomplete, the Tribunal does not consider Mr Md Masud’s letter to be persuasive evidence that the applicant did complete study at the institutions listed.

20. Based on other checks requested by the Tribunal regarding his Year 11 studies, it accepts that the applicant sat the New Zealand School Certificate Examination at Tavua College in 1986. There were some concerns as to whether the applicant attended Khalsa College in 1987 as claimed, as the outcome of initial checks were that the applicant did not attend Khalsa College in 1987. However, subsequent information provided from the Department of Exams and Assessment, Ministry of Education, Culture and Arts, Fiji indicated that he did sit for the New Zealand School Certificate Examination at Khalsa College in 1987.

21. The outcome of another check was that Vashist Muni Memorial School in Tavua is a primary school. The Tribunal had raised concerns with the applicant at the hearing that his study at Vashist Muni Memorial School may not meet the terms of IMMI 12/059. This is because the requirement for Class 3 as set out in IMMI 12/059 is that the person has completed a minimum number of years’ study in a secondary and/or higher education institution (emphasis added).

22. The Tribunal wrote to the applicant in relation to the information that Vashist Muni Memorial School in Tavua is a primary school and also referred to its concerns that the applicant was relying on two years of Year 11 study. The Tribunal received a response from the applicant with additional supporting material which it has considered below.

23. The applicant maintained that Year 8 study at Vashist Muni Memorial School was at secondary school level. He explained that the Year 8 examination he undertook in 1983 was a Fiji Secondary Schools’ Entrance Examination and provided evidence of his results. The Tribunal was also provided with a letter from Vashist Muni Memorial School in Tavua confirming that the applicant was a student of that school from 1976 until 1983, being from year 1 to year 8. Although the applicant claims that the examination was “secondary school level studies to qualify for further studies”, this is not indicated on the letter from the school or on his notice of results. An email addressed to the applicant from Mr Mohammed Masud dated 16 July 2015 states that “our Class 7 & 8 BOTH IN SECONDARY AND Primary school use the same curriculum and English language as the medium of instruction”.

24. However, the Fiji Education System extract provided by the applicant under the subheading ‘Secondary Education’ includes the following: “High school education may continue for a total of 5 years following an entry examination.” This suggests that the Year 8 examination undertaken by the applicant in 1983 was to assess whether he could progress into high school studies. More significant, however, is that the requirement for Class 3 as set out in IMMI 12/059 is that the person has completed a minimum number of years’ study in a secondary and/or higher education institution (emphasis added). In the Tribunal’s view, this means that it is required to consider whether the education institution itself is a secondary and/or higher education institution, and not whether the level of study undertaken at that institution was at secondary school level or higher. The evidence before the Tribunal is that Vashist Muni Memorial School in Tavua is a primary school, and therefore the Tribunal considers that the study undertaken in 1983 cannot be counted for the purposes of the exemption.

25. In relation to the applicant having undertaken Year 11 twice, that is repeating a school year, the applicant explained that he had a poor examination result for Year 11 in 1986 at Tavua College due to his family circumstances at the time. He states that to proceed further with his secondary education, he had to redo Year 11 to obtain a more desirable passing mark, and a decision was made to change to a school closer to where they lived. After the death of his parents, he went to live with an uncle who lived close to Nukuloa Secondary School, so he changed schools again.

26. The additional material includes a letter dated 16 July 2015 from Mr Sanjesh P. Chandra, the current principal of Khalsa College, confirming that the applicant was a Form 5 (Year 11) student at the college in 1987. It further states that the medium of instruction at the institution is in the English language except for vernacular subjects. The applicant also provided another letter from Nukuloa College dated 15 July 2015, indicating that it was formerly known as Nukuloa Secondary School, and confirms that the applicant attended the school in 1988 and the medium of communication is English. Based on the material presented and the checks undertaken, the Tribunal accepts that the applicant did undertake Year 9 to 11 study at Tavua College from 1984 to 1986, Year 11 study at Khalsa College in 1987 and Year 12 study at Nukuloa Secondary School in 1988.

27. The applicant chose to attempt the NZ School Certificate two years in a row in 1986 and 1987 in order to obtain better marks, and by doing so repeated Year 11 at two different schools. The evidence, which includes his NZ School Certificate examination results in 1986 and 1987 at these two schools as well as the letters and checks undertaken, indicates that the applicant studied Year 11 at Tavua College in 1986 and then at Khalsa College the following year. The material therefore supports a finding that the applicant undertook full-time study at Tavua College from 1984 to 1986, at Khalsa College in 1987 and at Nukuloa Secondary School in 1988. This totals five years of study. Each of these schools is a secondary education institution and all tuition was delivered in English. Although not without some doubt as to whether a person who repeated a school year meets the requirements of Class 3 as specified in IMMI 12/059, the Tribunal considers the applicant’s two years of Year 11 study come within the terms of the instrument. While he did not achieve desirable results in 1986, there is no evidence to indicate that he failed to complete Year 11 study at either college. The Tribunal thus accepts that the applicant completed at least five years of full-time study, albeit in three different secondary institutions, where all of the tuition was delivered in English.

28. The Tribunal finds that the applicant comes within Class 3 and is in a class of persons specified by the Minister in IMMI 12/059 for subparagraph 186.222(b). Accordingly, he is exempt from the English language criteria and meets cl.186.222 of Schedule 2 to the Regulations.

29. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

30. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.222 of Schedule 2 to the Regulations.

    Wan Shum
    Member