ARPONSIRI (Migration)
[2024] AATA 226
•5 February 2024
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 is met as set out in cl 186.222.
English language proficiency
English language proficiency
At the time the visa application is 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 IMMI 18/045: cl 186.222. For visa applications made before 1 July 2017 the level required is vocational English and for visa applications made on or after 1 July 2017 the level required is competent English.
‘Vocational English’ is defined in reg 1.15B and ‘competent English’ is defined in reg 1.15C of the Regulations. For both levels, 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 in this case stated in the visa application that he had not undertaken an English test in the last 36 months and, therefore, had not provided evidence of having achieved the relevant scores in an English language test as required by the relevant instrument. Nor did the applicant hold a specified passport, so there is no evidence that he met the requirements of ‘competent English’.
Instead, the applicant is claiming to be in a specified class of exempt applicants, specifically a person who has 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 relevant legislative instrument (IMMI 18/045) refers in clause 10 to the following persons as exempt from the English requirement. For the purposes of paragraphs 186.222(b) or 187.222(b) of Schedule 2 of 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.
The term ‘higher education institution’ is not defined in IMMI 18/045. Nor is it defined in the Act or Regulations.
According to the Macquarie Dictionary online, the term ‘higher education’ means ‘education beyond secondary education’.[1] It also relevantly defines ‘institution’[2] to mean:
1. an organisation or establishment for the promotion of a particular object, usually one for some public, educational, charitable, or similar purpose
2. a building used for such work, as a college, school, hospital, mental hospital, or the like.
3. a concern engaged in some activity, as an insurance company.
[1] See – Accessed 5 February 2024
[2] As above
As discussed below, the term ‘higher education provider’ is also relevant to the provision of higher education services in Australia and to the circumstances of this review. According to the Macquarie Dictionary online[3] the term ‘provider’ is relatively defined to mean:
1. someone who provides.
2. a person who supplies a means of support; breadwinner.
3. a company which provides access to a service: mobile phone provider…
[3] As abve
As such, the ordinary dictionary meaning of ‘higher education institution’ suggests that a ‘higher education institution’ is an organisation or establishment for the promotion of education or the building for such work. While a provider is just that a provider of higher educational services or someone who provides access to higher education.
The Department’s policy guidelines, as contained in its Procedures Advice Manual (PAM3, as at 5 February 2024) provide the following guidance:
3.4.11.2. RSMS exemption – 5 years full-time study in English
Under policy, full-time study is considered to be:
· in relation to secondary education, the standard number of contact hours that a student would undertake in the relevant country; and
· in relation to higher education, the completion of at least three subjects in each semester or trimester of study.
Study completed in a higher education institution may include tertiary studies that lead to a higher education award as defined in the Tertiary Education Quality and Standards Agency Act 2011 (the TEQSA 2011 Act), including courses leading to awards/qualifications such as:
· a diploma, advanced diploma, associate degree, bachelor degree, graduate certificate, graduate diploma, masters degree or doctoral degree;
· a qualification covered by level 5, 6, 7, 8, 9 or 10 of the Australian Qualifications Framework;
· an award of a similar kind, or represented as being of a similar kind, to any of the above awards; or
· Vocational Education and Training (VET) courses (within the meaning of the National Vocational Education and Training Regulator Act 2011 as defined by the TEQSA 2011 Act).
The required total of five years can consist of full-time study at secondary (high-school) level or higher education, or any combination thereof.
The applicant must have undertaken all subjects, other than those that may relate to specific languages, in English…
English language courses undertaken for the specific purpose of preparing for an English language examination, preparing for entry to an English language learning institution, or obtaining a particular English language test score are not acceptable for the purpose of the English language exemption.
The Tertiary Education Quality and Standards Agency Act 2011 (Cth) (TEQSA Act) defines a ‘vocational and educational training course’ as meaning a VET course within the meaning of the National Vocational Education and Training Act 2011 (Cth) (NVET Act). NVET Act defines ‘VET course’ to mean:
(a)the units of competency of a training package that is endorsed by the MinisterialCouncil; or
(b)the units of competency or modules of a VET accredited course; or
(c)the units of competency or modules of a course accredited by a VET Regulator of a non-referring State.
Although the Act and Regulations do not define ‘higher education institution’ for the purposes of the exemption at clause 12 of IMMI 17/058, r.1.03 of the Regulations defines ‘Education’ to mean the Department administered by the Education Minister.
Currently, the Department of Education is responsible on behalf of the Commonwealth Government for the development of world-class systems for Australia in the following areas: early childhood; schooling; higher education; international education and youth. The Department of Employment and Workplace Relations is responsible for: skills and training; employment and workplace relations.
In doing so, these Departments have a role in ensuring the quality of services provided in each of these sectors and there is legislation in place to ensure that providers of such services at all levels are registered. Relevantly, for the purposes of the current application for review, the relevant regulatory bodies in existence for this purpose are:
· the Tertiary Education Quality and Standards Agency (‘TEQSA’), which is responsible for the regulation of Australia’s higher education sector, including the registration of higher education providers and accreditation of higher education courses under the Tertiary Education Quality and Standards Agency Act 2011 (the TEQSA Act)[4]; and
· the Australian Skills Quality Authority (‘ASQA’), which is responsible for ensuring a high quality vocational education and training (‘VET’) sector.[5]
[4] See TEQSA | Tertiary Education Quality and Standards Agency- Accessed 5 February 2024
[5] See Australian Skills Quality Authority (ASQA) accessed 5 February 2024
Part 3 of the TEQSA Act sets out the registration processes for any entity that is (or is seeking to become) a higher education provider. Although the TEQSA Act does not specifically define ‘higher education institution’, section 5 of this Act defines a ‘higher education provider’ to mean a corporation (including constitutional corporation) that offers or confers a regulated higher education award, which is established under a law of the Commonwealth or Territory. In turn, the TEQSA Act also defines a ‘higher education award’ to be a diploma or higher level qualification, as well as qualifications covered by level 5 to 10 under the Australian Qualifications Framework (AQF).
The Tribunal above referred to the ordinary dictionary meaning of ‘higher education’, ‘institution’ and ‘provider’ The word ‘provider’ in higher education provider is narrower in meaning than the word ‘institution’ primarily because it is defined in the TEQSA Act, but also because ‘institution’ means the promotion of the object of educational purpose not just the provision of education. Object (d) in cl.2A of the NVET Act states
(d)to provide a regulatory framework that encourages and promotes a VET system that is appropriate to meet Australia's social and economic needs for a highly educated and skilled population; and
The Tribunal notes that object (d) aligns with the definition of ‘institution’.
The National VET Act also had provisions for registering training providers as ‘registered training organisations’. The details of those organisations registered by ASQA to provide VET services are available from the training.gov.au website[6], which is a joint initiative of the Australian and State and Territory governments.
[6] See - Accessed 5 February 2024
Information regarding those registered to provide education or training services to international students studying in Australia is available from the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) under the Educational Services for Overseas Students Act 2000.
Accordingly, for the purposes of clause 10 in IMMI 18/045 the Tribunal has had regard to the ordinary dictionary meaning of the words ‘higher education’, ‘provider’ and ‘institution’, the definition of ‘Education’ in regulation 1.03 of the Migration Regulations, the responsibilities of the Departments of Education and Employment and Workplace Relations, TEQSA and ASQA, as well as the policy guidelines in PAM3.
On the above, the Tribunal takes the view that from when the TEQSA Act came into effect, the term ‘higher education institution’ in Australia includes a higher education provider that is registered by TEQSA for this purpose. However, for registered training organisations, a registered training organisation registered by ASQA for the VET sector or registered under the equivalent State legislation for the period before the National Vet Act came into effect, is a higher education institution.
For study undertaken prior to the TEQSA Act coming into effect, particular ‘Part 3 – Registration’ of the TEQSA Act, which came into effect on 29 January 2012, there was no one national body responsible for the registration of higher education providers. Bills Digest no. 108-109 2010–11[7] for the TEQSA Bill stated as background for the Bill as follows:
In 2008, the Rudd Labor Government undertook a wide‑ranging review of Australian higher education with Professor Denise Bradley as chair of the panel. The review—commonly referred to as the Bradley review—reported in December 2008. The report stated ‘there is a strong case for a comprehensive and independent national regulatory body to carry out accreditation and quality audit functions in the higher education sector’ and that ‘current arrangements are complex, fragmented and inefficient.’ Among the 46 recommendations made by the Bradley review, was that the Australian Government ‘establish by 2010, after consultation with the States and Territories, a national regulatory body’.
The need for a national body was driven by a number of existing factors and future developments. These included the growing complexity and diversity of tertiary education with provision through universities, private providers, TAFE institutes and dual sector institutes which provide both vocational and university courses. The increasing complexity and diversity has resulted in a need to improve consumer protection, risk management and to maintain standards in order to protect Australia’s reputation for quality provision.
[7] See Tertiary Education Quality and Standards Agency Bill 2011 and Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Bill 2011 – Parliament of Australia (aph.gov.au) accessed 26 October 2022
Therefore, where study has been undertaken prior to 28 January 2012, there was no national body responsible for the registrations of education providers or courses and most of the responsibility lay with the States and Territories. In Australia nearly all young people must be in in formal education until they are 16 to 18 years of age. The age a young person can leave full time education varies from state to state. [8] Therefore, the Tribunal is satisfied that higher education is all post secondary education which is supported by the plain meaning of the term ‘higher education’ and its definition in the Macquarie Dictionary as referred to above.
[8]See What happens if my child refuses to attend school in Australia? - ReachOut Parents accessed 5 Febraury 2024
The Tribunal will also consider as guidance whether the education provider subsequently became TEQSA registered and for education providers who were not subsequently registered, whether they offered courses which come within the definition of ‘higher education award’ set out in the TEQSA Act.
In relation to those education providers registered by AQSA, the training.gov.au website provides details of historical registrations of registered training organisations.
From the evidence on the Departmental and Tribunal files, the applicant has undertaken a variety of courses in Australia from September 2008 to December 2012 as listed in the table below. Further, the Tribunal having accessed the TEQSA and AQSA register, the Tribunal is satisfied that the education providers listed in the table below where or subsequently became registered as higher education institutions under TEQSA or AQSA.
| Duration | College Name | Qualification | Conducted in English | Registered on TEQSA or ASQA | Course completion date | Duration of courses |
| 22/9/2008 – 20/3/2009 | GEOS Queensland College of English Gold Coast | Intensive General English Course - Beginner to Advanced | Yes | AQSA * | 20/3/2009 | 5 months 27 days |
| 29/6/2009 – 10/7/2009 | GEOS Queensland College of English Gold Coast | Intensive General English Course - Beginner to Advanced | Yes | AQSA | 10/7/2009 | 12 days |
| 6/7/2009 - 6/7/2011 | ITAGC College | Diploma of Sport (Development) | Yes | ASQA | 6/7/2011 | 2 years |
| 29/8/2011 – 1/6/2012 | Imagine Education Australia Pty Ltd | Certificate III in Hospitality (Commercial Cookery) | Yes | ASQA | 6/7/2012 (course deferred between 26/12/2011 – 12/02/2012) | 9 months |
| 16/7/2012 – 9/8/2013 | Imagine Education Australia Pty Ltd | Diploma of Hospitality | Yes | ASQA | 9/8/2013 | 1 year 25 days |
| 11/11/2013 – 5/12/2014 | Imagine Education Australia Pty Ltd | Diploma of Hospitality | Yes | ASQA | 5/12/2014 | 1 year 25 days |
| TOTAL DURATION AT REGISTERED HIGHER EDUCATIONAL INSTITUTION | 5 Years 4 months 29 days | |||||
* Subsequently registered 27 February 2009 to 6 April 2010
Departmental policy referred to above states that English language course for preparing for entry to an English language learning institution are not acceptable for the purpose of the English language exemption. In exercising its power on review, the Tribunal should have regard to policy as a relevant consideration. However, policy is not binding on the Tribunal.[9] The overarching principle is that the Tribunal must make an independent assessment of the material before it with a view to reaching the correct or, in the case of the exercise of a discretionary power (not relevant in the circumstances of this case), the preferable decision. Whilst not bound by policy, the Tribunal considers it desirable for the purposes of consistency in decision-making to have regard to policy.
[9] Re Drake v MIEA (No 2) (1979) 2 ALD 634; Qiao v MIAC [2008] FMCA 380
The legislative instrument focuses on the visa applicant studying at a higher education institution where all tuition is provided in English. There is nothing in the regulation or relevant instrument that limits what is a higher educational institution which can be considered as part of English language exemption by what course is provided and intention to limit the English language exemption this way it could have been done in a legislative instrument.
On the above, the Tribunal is satisfied that the applicant has completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English as specified in item 10 of IMMI 18/045, therefore, the Tribunal finds that the applicant meets the exemption category specified for the purposes of cl.186.222(b).
Therefore, cl 186.222 is met.
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
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
Namoi Dougall
Member
ATTACHMENT A
186.223(1) The position to which the application relates is the position:
.
(2) The Minister has approved the nomination.
(3) The nomination has not subsequently been withdrawn.
(3A) Either:
(a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(4) The position is still available to the applicant.
(5) The application for the visa is made no more than 6 months after the Minister approved the nomination.
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