1507603 (Migration)

[2015] AATA 3243

1507603 (Migration) [2015] AATA 3243 (7 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jennie Sia

CASE NUMBER:  1507603

DIBP REFERENCE(S):  BCC2015/804127 / CLF2015/33900

MEMBER:Antonio Dronjic

DATE:7 August 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Cultural/Social (Temporary) (Class TE) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 416 visa:

·cl.416.222(a) of Schedule 2 to the Regulations

Statement made on 07 August 2015 at 4:41pm

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 13 May 2015 to refuse to grant the visa applicant a Cultural/Social (Temporary) (Class TE) Subclass 416 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 11 March 2015. The delegate refused to grant the visa on the basis that the applicant failed to meet cl.416.222 (a). Relying on Departmental policy, the delegate found that the visa applicant already has teaching qualifications and substantive teaching experience and therefore does not meet the requirements to be considered an eligible participant under the approved Special Program as set out in r.2.60D(d)(i).

3. The applicant applied to the Tribunal on 3 June 2015 for review of the delegate’s decision. With the review application, the applicant provided a copy of the primary decision record.

4. Relevant Law

   The Special Program Subclass 416 visa aims to enhance international relations, cultural exchange and development by allowing persons to share cultural, social experiences, knowledge and skills in the Australian community by taking part in programs that provide opportunities for youth exchange, cultural enrichment, community benefit or seasonal work.

   This visa subclass is for persons who:

   ·have been invited to participate in a reciprocal youth exchange program approved by the Secretary

   ·have been invited to participate in a cultural enrichment or community benefit program, where both the organisation and the program have been approved by the Secretary

   ·are intending to participate in the special program of seasonal work approved by the Secretary.

5. The primary criteria for the grant of a Subclass 416 visa must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria. A mandatory criterion to be met for the grant of the visa is that the applicant meets cl.416.222 which relevantly states:

   The Minister is satisfied that:

   (a)  the applicant seeks to enter or remain in Australia to participate in an approved special program (other than a special program of seasonal work) conducted by the special program sponsor in relation to the applicant.

6. According to the Departmental policy, which the Tribunal is not bound to follow, this visa is designed for persons who have been invited by an approved special program sponsor to participate in the following school programs:

   ·School language assistants program (SLAP) or

   ·School to school interchange program (SSIP).

   ·a youth exchange program, where both the organisation and the program have been approved by the Secretary

   ·a cultural enrichment or community benefit program, where both the organisation and the program have been approved by the Secretary or

   ·a special program of seasonal work, where both the organisation and the program have been approved by the Secretary.

7. Relevant to the current review application is the School Language Assistants Program (SLAP). This category is approved as a cultural enrichment program and involves one participant per school. It is designed to allow Australian schools to invite young persons, between 18 and 30 (inclusive), from other countries, who intend to pursue a career in teaching. Participants are not qualified teachers and should be engaged only as assistants in the school.

8. In her decision record, the delegate stated that the applicant must meet the eligibility requirements as set out in Section 4.2 of the Procedure Advice Manual and Department policy approved Student Language Assistant Program eligibility document. The Tribunal understands that the delegate may have considered the guidelines in PAMS which include guidelines in relation to program specific requirements and the assessment of an applicant’s personal attributes and employment background.  However the Tribunal is of the view those guidelines cannot impose on the applicant requirements beyond those set out in the regulations.

9. Section 4.2 of the Procedure Advice Manual states that it is not consistent with the intent of the SLAP to accept invitations from schools seeking to bring overseas persons with considerable teaching experience/qualifications to participate in the SLAP. By accepting invitations for overseas persons who already are experienced/qualified teachers there is a higher risk that these persons could be used to supplant qualified Australian teachers. As a general guide, a delegate may deem an applicant ineligible for participation in the SLAP if they are qualified or have had over 12 month’s classroom teaching experience prior to applying for participation in the SLAP.

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue for the Tribunal to consider is whether the applicant meets cl.416.222 which, in his circumstances, requires the Tribunal to consider whether the applicant seeks to remain in Australia to participate in an approved special program (other than a special program of seasonal work) conducted by the special program sponsor in relation to the applicant.

12. With her review application, the visa applicant submitted additional documentary evidence and submissions concerning her previous work experience as a teacher. She provided letters from her overseas employers confirming that she was employed on a temporary basis as a replacement for teachers who were on leave. In her statement (tribunal folios 11-15) she stated that she neither have experience in teaching nor qualifications to teach in Australia. Similarly, she stated that in Malaysia, she had no qualifications not the experience to present a teaching program by herself.

13. In her letter of 3 June 2015, Ms Walker, an Indonesian language teacher from Southern Christian College, stated that the visa applicant has limited experience in a classroom and ‘does not qualify to be experienced teacher in Malaysia let alone Australia’. She is engaged by the college as a school language assistant and is not legally permitted to be responsible for or to teach a class.

14. Based on the evidence before me, I am satisfied that the visa applicant is not qualified to teach in Australia or have had over 12 month’s classroom teaching experience prior to applying for participation in the SLAP.

15. The departmental records indicate that Southern Christian College was approved as a special program sponsor in relation to the applicant on 31 March 2015. Based on the evidence before me, I am satisfied that the applicant is seeking to remain in Australia to participate in an approved special program (other than a special program of seasonal work) conducted by the special program sponsor in relation to the applicant.

16. On the basis of these findings the Tribunal is satisfied the applicant meets cl.416.222(a). The appropriate course is to remit the matter for the Minister to consider the remaining criteria.

    DECISION

    The Tribunal remits the applications for Cultural/Social (Temporary) (Class TE) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 416 (Special Program) visa:

    ·cl.416.222 (a) of Schedule 2 to the Regulations.

    Antonio Dronjic
    Member