Bhatt (Migration)

[2023] AATA 242

Bhatt (Migration) [2023] AATA 242 (8 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pinakin Harshadrai Bhatt
Mrs Swenibahen Pinakin Bhatt
Master Maharsh Pinakin Bhatt

REPRESENTATIVE:  Mr Amber Gupta (MARN: 0533773)

CASE NUMBER:  1919557

HOME AFFAIRS REFERENCE(S):          BCC2018/2307349

MEMBER:De-Anne Kelly

DATE:8 February 2023

PLACE OF DECISION:  Brisbane

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 08 February 2023 at 6:19am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – competent English – specified language test result – completing five years full-time study delivered in English in a secondary or higher education institution – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 186.222, 186.311; r 1.15
National Vocational Education and Training Regulator Act 2011
Tertiary Education Quality and Standards Agency TESQA Act 2011

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 18 July 2019 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 29 May 2018. At the time of application, Class EN contained one subclass: 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.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because at the time of application the applicant had not demonstrated that he had competent English or was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

6. The applicants appeared before the Tribunal on 24 November 2022 to give evidence and present arguments.

7. The applicants were represented in relation to the review by Mr Gupta.

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

   Adjournment

9. The applicant requested and was granted a brief adjournment.

   S359AA of the Act

10. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Migration Act 1958 (Cth) (the Act), that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent and they could respond in the hearing. Under s.360 of the Act the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal.

11. Section 359AA provides as follows:

    (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)   if the Tribunal does so—the Tribunal must:

    (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii) orally invite the applicant to comment on or respond to the information; and

    (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant satisfies cl.186.222 which provides as follows.

    At the time of application, the applicant:
    (a) had competent English; or
    (b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

    English language proficiency

13. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have competent English or be in a class of persons specified in legislative instrument IMMI 18/045.

14. 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.

15. ‘Vocational English’ is defined in reg 1.15B and ‘competent English’ is defined in reg 1.15C of the Regulations. In this instance, having regard to the date of visa application, the required level is competent English. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.

16. 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.

17. In the hearing it was established that the applicant had not undertaken a specified English Language test in the three years preceding the visa application and achieved the specified score. The applicant holds a passport from India which is not a passport specified in the instrument.

18. The applicant is seeking to satisfy IMMI 18/045 which provides exemptions to the ‘vocational English’ or ‘competent English’ requirement for applicants for a Subclass 186 visa or Subclass 187 visa, as below.

    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.

19. It is noted that the Oxford English Dictionary Online defines institution and provider as follows,

20. “Institution” - The action of instituting or establishing; setting on foot or in operation; foundation; ordainment; the fact of being instituted

21. “Provider” - A person who or thing which provides or supplies something.

22. It seems that an institution is instituted and “in operation” in this case for higher education and could reasonably be said to be a providing or supplying higher education as a provider.

    IMMI 18/045

23. Education is a joint state and federal government responsibility with the Federal Minister for Education overseeing the higher education sector through the Tertiary Education Quality and Standards Agency TESQA Act 2011 which established TESQA the Tertiary Education Quality and Standards Agency as an independent quality assurance and regulatory agency for the higher education sector. Likewise, the Federal Minister has similar oversight of the Vocational Education sector through the Australian Skills Quality Authority ASQA which is governed by the National Vocational Education and Training Regulator Act 2011.

24. The following is a simplified outline of the Tertiary Education Quality and Standards Agency Act 2011

    An entity must be registered before it can offer or confer any of the following awards (regulated higher education awards):

    (a)     Australian higher education awards;

    (b)     overseas higher education awards, if those awards relate to courses of study provided at Australian premises.

    •      Registered higher education providers must have their courses of study accredited before those courses can be provided in connection with regulated higher education awards. Some providers (including those providers registered in the “Australian University” provider category) are authorised to self‑accredit some or all of their courses of study.

    •      The Tertiary Education Quality and Standards Agency (TEQSA) registers providers and accredits courses of study. TEQSA regulates higher education using principles relating to regulatory necessity, risk and proportionality, and using a standards‑based quality framework.

    •      That quality framework is a series of standards made by the Minister on the advice of the Higher Education Standards Panel.

25. The TESQA Act defines a higher education provider or higher education institution as one which confers a regulated higher education award.

    "higher education provider" means:

    (a)a constitutional corporation that offers or confers a regulated higher educationaward; or

    (b)  a corporation that:
                 (i)  offers or confers a regulated higher education award; and

    (ii)  is established by or under a law of the Commonwealth or a Territory; or

    (b)a person who offers or confers a regulated higher education award for the  completion of a course of study provided wholly or partly in a Territory.

26. The Explanatory Statement which accompanied the introduction of cl.186.222 refers to an invitation for submissions on policy settings in relation to age, skill level and English language proficiency and opportunities for greater synergy between the permanent and temporary employer sponsored visas. Over 60 submissions were received, and the Explanatory Statement advises that the submissions and outcomes of discussions with stakeholders were taken into account in developing the amending Regulation. There is a further discussion paper,” Review of the Permanent Employer Sponsored Visa Categories Discussion Paper”  dated August 2011, which refers to changes from 1 July 2012. In this discussion paper it makes specific reference to the Australian Qualifications Framework AQF as defining educational awards for the Permanent Employer Sponsored 186 and 187 visa subclasses as well as others.

27. The Tertiary Education Quality and Standards Agency TESQA Act 2011, extract shown below, defines a higher education award as starting at Diploma and finishing at Higher Doctoral degree on the scale of 5 to 10 of the Australian Qualifications Framework and excludes awards for vocation education and training courses. These awards must be regulated and approved by TESQA.

    "higher education award" means:

    (a)  a diploma, advanced diploma, associate degree, bachelor degree, undergraduate certificate, graduate certificate, graduate diploma, masters degree or doctoral degree; or

    (b)  a qualification covered by level 5, 6, 7, 8, 9 or 10 of the AustralianQualifications Framework; or

    (c)  an award of a similar kind, or represented as being of a similar kind, to any of     the above awards;

    other than an award offered or conferred for the completion of a vocational education and training course.

28. The TESQA website has tabled the AQF higher education award categories as below

AQF level	Qualification	Degree level	Regulatory responsibility
10	Higher Doctoral Degree	Postgraduate	TEQSA
10	Doctoral Degree	Postgraduate	TEQSA
9	Masters Degree (Research)	Postgraduate	TEQSA
9	Masters Degree (Coursework)	Postgraduate	TEQSA
9	Masters Degree (Extended)	Postgraduate	TEQSA
8	Graduate Diploma	Postgraduate	TEQSA
8	Graduate Certificate	Postgraduate	TEQSA
8	Bachelor Honours Degree	Undergraduate	TEQSA
7	Bachelor Degree	Undergraduate	TEQSA
6	Associate Degree	Undergraduate	TEQSA/ASQA
6	Advanced Diploma	Undergraduate	TEQSA/ASQA
5	Diploma	Undergraduate	TEQSA/ASQA

Applicant qualifications and IMMI 18/045

1. The applicant provided the following qualifications at the listed educational institutions which he is relying upon to satisfy IMMI 18/045.

Course	Education	Study Period	Years
Advanced Diploma of Business		RGIT	Jul - Dec 2012	0.5
Diploma of Business		RGIT	Feb 2011 - Jul 2012	1.5
Certificate IV in Business		RGIT	Feb 2011 - Jan 2012
Certificate III in Business		RGIT	Feb - Jul 2011
Diploma of Hospitality		RGIT	Feb - Dec 2014	1.0
Certificate IV in Hospitality		RGIT	Feb - Dec 2014
Diploma of Com. Welfare Work		CIC	Sep 2008 - Oct 2010	2.0

RGIT - Royal Gurkhas Institute of Technology Australia

CIC     - Cambridge International College

1. Excluding the Certificate courses which are nor higher education awards and therefore would not comply with the AQF definition of study delivered by a higher education institution 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.

2. Therefore, cl 186.222 is met.

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

4. Mrs Swenibahen Pinakin Bhatt and Master Maharsh Pinakin Bhatt were secondary applicants on the application for Employer Nomination (Permanent) (Class EN) visas (Subclass 186) and sought to satisfy cl.186.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.186.311. This clause provides as below. The secondary applicants lodged an application with the Tribunal to review the decision to refuse the Visa application.

   186.311
   The applicant:
   (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

   (b) made a combined application with the primary applicant.

5. Because the primary visa applicant’s Subclass 186 visa application was refused, the secondary visa applicants were members of the family unit of a person who did not hold a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

6. The Tribunal considered the appropriate course was to remit the primary visa applicant’s visa application to the Minister to reconsider the remaining criteria for the visa. The Tribunal considers it is the appropriate course to remit the secondary applicants visa application to the Minister.

   DECISION

7. 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.

   De-Anne Kelly
   Member