Buday (Migration)

[2017] AATA 493

Buday (Migration) [2017] AATA 493 (27 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ladislav Buday

CASE NUMBER:  1622198

DIBP REFERENCE(S):  BCC2016/763849

MEMBER:R. C.Titterton

DATE:27 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 27 March 2017 at 4:19pm

CATCHWORDS

Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – cl 186.222(a) – Vocational English for position of Cook – Evidence of undertaking English-language test – Class 3 exemption – Completion of secondary or higher education in English – Definition of higher education institution and education – Education systems

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 cl 186.222(a)

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 6 December 2016 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 23 February 2016. 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 (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 Agreement stream.

4. In the present case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Cook. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.222(a) of Schedule 2 to the Regulations because at the time of application, the applicant had not provided any evidence of having undertaken an English-language test is specified in sub-regulation 1.15B(1). As the applicant had not provided evidence, as specified in relevant instrument in writing, of having achieved a score in the language tests conducted in the three years immediately before the day on which the applicant was made, the applicant did not satisfy sub-regulation 1.15B(1).

6. The applicant appeared before the Tribunal on 20 March 2017 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Czechoslovakian and English languages.

7. The applicant was represented in relation to the review by his registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have vocational English, or be in a class of persons specified in legislative instrument IMMI 15/083: cl.186.222.

2. The issue in the present case is whether or not the applicant’s completion of General English Courses in 2005 and 2006 and an IELTS preparation course in 2011 should count towards the “Class 3” exemption in IMMI 15/083, namely “Persons who have 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”.

3. The delegate found that the undertaking of these courses were not considered secondary and/or higher education, and therefore should not be considered towards meeting the requirements of the Class 3 exemption. These matters were discussed with the applicant by the Tribunal at hearing. The applicant said that he did not know about such matters and would have to talk to his agent. The Tribunal gave him the opportunity of providing submissions after the hearing.

4. These submissions were received on 22 March 2017, and were prepared by the applicant’s agent. Relevantly, the agent submits that IMMI 15/083 does not refer to any specific education system (in Australia or elsewhere) and that there is no definition of a higher education institution in the Act or the Regulations. Accordingly, the agent submits that, in the absence of a definition, it might be open to interpret a higher education institution as any institution above the secondary education institution or above the primary education institution. The agent submits that the applicant’s English-language studies were in education institutions above the level of primary school and submits that all of the institutions at which he studied should be considered above the secondary level, and therefore, in a “higher” education institution.

Consideration

1. The applicant correctly submits that the expressions “secondary Institution” and “higher education institution” are not defined in either the act or the Regulations. Therefore, the Tribunal will give these expressions should be given their ordinary English meaning. The Tribunal will commence its consideration of their meanings by first considering the respective meanings of secondary and higher education.

2. Generally, education in Australia follows the three-tier model which includes primary education (primary schools), followed by secondary education (secondary schools/high schools) and tertiary education (Universities, TAFE colleges and Vocation Education and Training providers/VET providers): Secondary education covers two phases on the ISCED scale. Level 2 or junior secondary education is considered the second and final phase of basic education, and level 3 secondary education is the stage before tertiary education. Every country aims to provide basic education, but the systems and terminology remain unique to them. Secondary education typically takes place after six years of primary education and is followed by higher education, vocational training or employment. In most countries it is compulsory for students between the ages 11 and 16. Compulsory education sometimes extends to age 19: >

   Also referred to as tertiary education, higher education is generally provided by universities and by other higher education institutions such as Technical and Further Education (TAFE) institutes and Registered Training Organisations (RTOs): >

   The Tribunal does not consider that institutions referred to by the applicant are institutions that offer either secondary education or higher education for the purpose of IMMI 15/083. The Tribunal rejects the applicant’s submissions to the contrary. The applicant has provided no evidence to found such a submission.

3. Therefore, cl.186.222 is not met.

4. 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

1. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

R. C. Titterton
Member