ARPONSIRI (Migration) - [2024] AATA 226

ARPONSIRI (Migration) [2024] AATA 226 (5 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sarunnut ARPONSIRI
REPRESENTATIVE:  Mr John Theeradech Paopeng (MARN: 0851174)
CASE NUMBER:  2317966
HOME AFFAIRS REFERENCE(S):          BCC2019/3397396
MEMBER:Namoi Dougall
DATE:5 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:
·cl 186.222 of Schedule 2 to the Regulations; and

Statement made on 05 February 2024 at 12:23pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – cook – English language proficiency – competent English – requirement that test undertaken in 36 months before application made – no test undertaken – exemption for completing five years of secondary or higher study in English – ‘higher education’ – ‘institution’ – ‘provider’ – study partly before and partly after national registration body established – history of state and national registration – decision under review remitted

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

CASES

Qiao v MIAC [2008] FMCA 38

Re Drake v MIEA (No 2) (1979) 2 ALD 634

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 October 2023 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 6 July 2019. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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.
In the present case, the applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook.
The delegate refused to grant the visa because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because the applicant did not have competent English and was not in a class of persons exempt from that requirement.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in the present case is whether the English language proficiency criteria…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: ARPONSIRI (Migration) [2024] AATA 226
Case: [2024] AATA 226
Decision Date: 5 February 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of Arponsiri for an Employer Nomination (Permanent) (Class EN) visa, subclass 186, under the temporary residence transition stream. The applicant sought review of a decision to refuse the visa, which was primarily based on a failure to meet the English language proficiency requirement. The applicant claimed an exemption from undertaking an English language test, asserting they had completed five years of secondary or higher education taught in English.

The Tribunal was required to determine whether the applicant's studies qualified for the exemption from the English language proficiency test. Specifically, the court had to interpret the meaning of "higher education" and "institution" in the context of the applicant's educational history, which spanned periods both before and after the establishment of a national registration body for educational providers. The central question was whether the applicant's completed studies constituted "five years of secondary or higher education" conducted in English, thereby satisfying the exemption criteria.

The Tribunal reasoned that the applicant's tertiary qualifications, obtained from institutions that were recognised and accredited at the time of study, met the definition of "higher education" for the purposes of the exemption. The court noted that the historical evolution of state and national registration bodies for educational providers did not negate the validity of qualifications obtained from recognised institutions prior to or during the transition to national registration. The Tribunal found that the applicant had indeed completed the requisite five years of study in English. Consequently, the Tribunal remitted the decision to the delegate for reconsideration of the visa application, with a direction that the applicant be taken to have satisfied the English language proficiency requirement.

Orders