Ang (Migration)

[2023] AATA 3133

Ang (Migration) [2023] AATA 3133 (4 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kok Wah Ang
Miss Jane Yu Zheng Ang
Ms Ranie Setiani
Miss Jean Yu Xin Ang

REPRESENTATIVE:  Ms Adele Wan

CASE NUMBER:  2215710

HOME AFFAIRS REFERENCE(S):          BCC2018/1398035

MEMBER:Wan Shum

DATE:4 September 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 04 September 2023 at 1:13pm

CATCHWORDS  
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – English language proficiency – ‘competent English’ – IMMI 18/045 – exemption – secondary schooling in Singapore – whether ‘all tuition was delivered in English’ – Buddhist studies – “vernacular subjects” – decision under review affirmed

LEGISLATION 
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15C; Schedule 2, cl 186.222

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 Home Affairs on 19 October 2022 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 26 March 2018. At the time of application, Class EN contained Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook for SAM F C WONG & AGNES C L WONG (the nominator). The nominator made an application to nominate the position under reg 5.19 on 1 November 2017.

5. The nomination was not approved and as a consequence, on 23 July 2018, a decision was made to refuse to grant the applicants the visas. Both the applicants and the nominator sought review of those decisions and the Tribunal (differently constituted) set aside the decision not to approve the nomination. The decision in respect of the applicants was remitted by the Tribunal (differently constituted) to the Minister to consider the remaining criteria for the visa on 1 March 2021 because the nomination was approved on review.

6. Then, on 19 October 2022, a delegate refused to grant the visas because the applicant did not have competent English and was deemed not to be in a specified class of persons, which meant he did not satisfy cl 186.222 of Schedule 2 of the Regulations.

7. The applicants sought review of that decision and were represented in relation to the review by the same lawyer.

8. The applicant appeared before the Tribunal by videoconference on 4 July 2023 to give evidence and present arguments. An interpreter in the Mandarin and English languages was made available to assist where necessary. The representative attended the Tribunal hearing from another location.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the English language proficiency criteria is met as set out in cl 186.222.

11. At the time the visa application was made, an applicant in the Temporary Residence Transition stream must either have a defined level of English language proficiency or be in a class of persons specified in legislative instrument. The level required is ‘competent English’ as defined in reg 1.15C of the Regulations. The applicant in this case did not provide evidence that he had undertaken a specified language test in the three years preceding the visa application and achieved a specified score or held a specified passport, so there is no evidence that he met the requirements of ‘competent English’. This means that cl 186.222(a) is not met and he must be a person in a class of persons specified by the Minister in an instrument in writing for cl 186.222(b).

12. The relevant legislative instrument applicable to the application is IMMI 18/045 which specifies that:

    For the purposes of paragraphs 186.222(b) and 187.222(b) of Schedule 2 to the Regulations, persons who, at the date of application for a Subclass 186 visa or a Subclass 187 visa, have completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English, are specified.

13. The applicant claims that he completed his secondary schooling in Singapore and that the tuition, other than for language subjects, was in English.

14. The evidence before the Tribunal includes a letter issued by the Ministry of Education of Singapore dated 28 September 2022 of the applicant’s “Education Record”,

    1982                Pei Hwa Public School (Yio Chu Kang) Primary 6

    1983 - 1985      Kong Yiong High & Primary School Secondary 1 - Secondary 3

    1986                Chung Hwa High School Secondary 4

    1987                Zhonghua Secondary School Secondary 5

15. According to the records, the applicant completed full-time secondary education from 1983 to 1987 (inclusive) which would be 5 years of study. The Tribunal will now proceed to consider whether “all tuition was delivered in English” at the schools where he studied Secondary 1 to 5.

16. The submissions set out that the applicant studied at Kong Yiong High School from 1983 to 1985 and that after Kong Yiong High School was closed in 1986, he then studied at Chunghwa High School in 1986. Chung Hwa High School was known as Chung Hwa Girls’ High School from 1911 to 1984 but was renamed to Chung Hwa High School after acceptance of male students from January 1984 and became a government school. In 1987, this school later changed its name to Zhonghua Secondary School. It was submitted that during the 1970 to 1990s, there were many educational reforms in Singapore. The representative submitted that it was not possible to obtain a letter from the individual schools as they either did not keep records anymore or the schools no longer existed. The submissions indicate that Zhonghua Secondary School, which is the only school that still exists to date, was contacted and the current Vice Principal confirmed all their subjects including Metalworks would have been taught in English language in the 1980s. The current Vice Principal of Zhonghua Secondary School has also advised the Department that subjects including elective subjects like Metalworks were taught in English in the 1980s, except for specific subjects, e.g., Chinese language and Buddhist studies, both of which the applicant claims to have studied at the school.

17. The applicant has provided a letter from the Ministry of Education of Singapore which states that English is the medium of instruction for all subjects in Singapore government, autonomous and independent schools and a copy of further correspondence that this letter is the official letter the Ministry provides to confirm a person’s secondary education was completed in English.

18. However, the Tribunal notes that the final statement for his Singapore – Cambridge General Certificate of Education (referred to in the submissions as the “O-Level certificate”) dated from 1987 reflects that 3 of the 6 subjects undertaken were in Chinese Language, specifically the subjects of Chinese, Metalworks and Buddhist studies. The applicant was studying at Zhonghua Secondary School when he took the examinations for his “O-levels”. According to a copy of Wikipedia entry on the school which was provided to the Tribunal, “[f]ounded in 1911 as Chung Hwa Girls' High School, the school has retained its Chinese heritage despite transforming into an English-medium government school in 1990.” A page from a pamphlet about the school entitled ‘Our Story’ reflects that in 1980 “English-medium classes were introduced” but does not state whether this was for all subjects.

19. The applicant’s evidence at hearing was that his study at Zhonghua Secondary School was in English, other than Buddhist studies and Chinese. Regarding the subject of Metalworks, he said that the classes were held once per week and mostly practical, where the students would engage in metal and woodwork cabinetry. The applicant’s own recollections of Metalworks being undertaken on a separate campus as set out in his email to Zhonghua Secondary School of 27 September 2022 were not corroborated by the Vice Principal of the School who responded to the applicant’s email stating that, in 1987, Metalwork was offered in the Zhonghua school campus, which was at Serangoon Ave 4 and that they did not hold the Metalwork classes in a different school, as the workshop was on the school campus. The Vice Principal goes on to state that in the previous campus at Bartley, there was already a Metalwork workshop and classes were held on campus there too.

20. This means that there is conflicting evidence as to the language medium for the Metalworks subject. While the applicant has presented some information to corroborate his recollection as to the Metalworks subject being delivered in English, which includes the email correspondence from the current Vice Principal of 27 and 28 September 2022, there is no explanation from the School or the Singaporean Ministry of Education for why the final examination record reflects that the subject/examination was Chinese medium. The applicant claimed that the final examination record was inaccurate as it did not include the results of his science study, which was a core subject. The Tribunal was informed by the representative that the applicant had sought to have the error in the language listed on the “O-level certificate” amended but was subsequently advised that they had been unable to do so. There is no third-party evidence before the Tribunal that supports a conclusion that the certificate was inaccurate in respect of the listed subjects or language medium.

21. The Tribunal accepts that the O-Level certificate is referring to the results of examinations undertaken in November/December 1987 and that the relevant consideration under the instrument is referring to the medium of instruction in day-to-day classes during his study rather than the language the final O-level examination was taken. Notwithstanding this, even if the Tribunal were to accept that Metalworks was conducted in English, the applicant had also undertaken the subject of Buddhist studies which was conducted in Chinese. It was submitted that “under [the Departmental] policy guidelines and past cases [1419459]… that vernacular subjects are exempted for the purpose of meeting 186.222… [t]hus, the study of Chinese language and Buddhist studies (noting that the Buddhist studies in Singapore is Han-Buddhist i.e. a sect of Chinese Buddhism) are to be disregarded.”

22. The Tribunal raised doubts at the hearing about any exemption for Buddhist studies or “vernacular subjects” to be delivered in a language other than English and confirmed in writing that further submissions on this point were invited. An extension was requested but no response has been received to date.

23. There is no reference to any exemption in PAM3 guidelines 8.9.11 about “vernacular subjects” and contrary to the submissions, it states that:

    The applicant must have undertaken all studies, other than those that may relate to specific languages, in English. For example, if the course covered various subjects including Spanish and French as specific subjects, instruction for all subjects other than Spanish and French must have been delivered in English.

24. In respect of the previous Tribunal decision referred to, while there is one reference in that decision record to “vernacular” from a letter from the school in that case, there was no finding that that applicant in that matter had undertaken any vernacular subjects in a language other than English nor was there a finding that it would be acceptable for the purposes of the specified classes of persons. The Tribunal considers that “full-time study in a secondary education institution where all tuition was delivered in English” would allow for language subjects other than English to be delivered in the relevant specific language but does not accept that this extends beyond language subjects.

25. The Tribunal is cognizant that the applicant’s secondary education was completed over 35 years ago, which may explain why enrolment records were not kept and why his recollection may not be entirely accurate. The applicant was given further time to obtain information to support his claim that the subjects other than language and “vernacular” subjects were delivered in English, contrary to the final “O-Level” examination records. Following the hearing, the Tribunal was provided with a copy of a booklet regarding Kong Yiong High School’s 65th year celebrations which appears to have been printed in 1983. The Tribunal acknowledges that it was not possible to contact Kong Yiong High School as it had closed down. The Tribunal accepts that the applicant’s first 3 years of secondary schooling were at Kong Yiong High School, but there is no record of the subjects studied there or the language of delivery. The Tribunal’s attention was drawn to pages 8-9 of the booklet on which it was submitted was reference to students taking the O-level examination in English from 1983 onwards, however the Tribunal notes that the applicant did not take the O-level examination while studying at this school. The Tribunal has taken into account that “English language stream classes” were introduced into secondary school from 1980 as stated by the Permanent Secretary and Director of Education. However, this statement does not in the Tribunal’s view support a conclusion that all subjects were delivered in English, other than mother tongue languages, at Kong Yiong High School from 1980 onwards. The Director of Schools on page 9 states that the school is “now offering both Chinese and English language stream classes” which suggests that both languages are in use at the school.

26. In addition, while the letter from the Ministry of Education, Singapore dated 28 September 2022 relevantly states that:

    English is the medium of instruction for all subjects, with the exception of the Mother Tongue Languages, in Singapore government, autonomous and independent schools. This applies to all Primary schools (ages 6-12), Secondary schools (ages 13-16) and Junior Colleges (ages 17-18). In addition, English is the language of school administration. All school activities, with the exception of Mother Tongue Language cultural activities, are conducted in English.

27. The letter does not state when English became the medium of instruction for all subjects and whether the introduction of English occurred at the same time for all schools. It appears on the other information provided to the Tribunal, which includes the Wikipedia entry and booklet celebrating Kong Yiong High School’s 65^th anniversary, that it depended on the individual school. As submitted, the applicant last finished school in Singapore some 35 years ago and the letter from the Ministry of Education, Singapore does not address the timing of when English became the medium of instruction for all subjects at all schools in Singapore.

28. It was submitted that the Tribunal should take a beneficial approach and accept that the applicant had studied five years of full-time study in English in secondary schools in Singapore. However, the information before the Tribunal does not support a conclusion that all subjects, other than language subjects, were delivered in English during the years the applicant studied at Kong Yiong High School and the information of his study at Zhonghua Secondary School reflects that at least one of the non-language subjects he had undertaken, Buddhist studies, was conducted in Chinese.

29. The Tribunal does not consider that the evidence before it supports a conclusion that the applicant completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English. This means that cl 186.222(b) is not met and the applicant does not satisfy cl 186.222.

30. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

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

    Wan Shum
    Member