Desai (Migration)

[2017] AATA 2630

Desai (Migration) [2017] AATA 2630 (27 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mitesh Chandrakant Desai
Mrs Reena Jayant Natekar

CASE NUMBER:  1706430

DIBP REFERENCE(S):  BCC2016/2657674

MEMBER:Danica Buljan

DATE:27 November 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for the 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:

•Clause 186.222 of Schedule 2 to the Regulations.

Statement made on 27 November 2017 at 3:51pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – English language proficiency – Applicant has not undertaken an English language test – Studied full time at a Higher Education institution in English for five years – Exempt from English language requirement

LEGISLATION
Migration Act 1958 ss 65, 363(3), 359A, 359(2)
Migration Regulations 1994 rr 1.03, 1.15B, 1.15B(1)-(2), 1.15C, 1.15D, 1.15EA Schedule 2 cls 186.21, 186.22 ,186.222, 186.222(a)-(b)
Tertiary Education Quality and Standards Agency Act 2011 s5

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 9 March 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied to the Department of Immigration for the visas on 11 August 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 first-named applicant (‘the applicant’) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of ‘Cook’ (ANZSCO[1] Code 351411). 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.

   [1]     ANZSCO: Australian and New Zealand Standard Classification of Occupations, 26 June 2013

5. The delegate refused to grant the visas on the basis that the applicant did not meet clause 186.222 of Schedule 2 to the Regulations. This was because the applicant had not demonstrated that at the time of application he had ‘vocational English’, or that he was a person who was exempt from this requirement under the legislation.

6. The applicants lodged an application for review with the Tribunal on 29 March 2017, and a copy of the primary decision was included with the application for review.[2]  The applicants were represented in relation to the review by their registered migration agent.

   [2]     AAT Case file 1706430 (T1), f.1-5

7. The Tribunal has before it the departmental file[3] relating to the applicants. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[4]

   [3]     D1 - Departmental file, BCC2016/2657674 folio numbered 1-125

   [4]     AAT Case file 1706430, folio numbered 1-174

8. Although the applicants appeared before the Tribunal on 28 August 2017 to give evidence and present arguments, only the applicant gave oral evidence.

9. Following the Tribunal hearing, on 30 August 2017 the Tribunal issued a summons under subsection 363(3) of the Act to Holmes Institute requesting additional information regarding each of the courses of study the applicant had undertaken with this education provider.[5] On 15 September 2017 and 14 November 2017 the Tribunal issued a second and third summons for the same purpose.[6]

   [5]     T1, f.45-48

   [6]     T1, f.50-53 & 158-165

10. On 19 September 2017 and 22 November 2017 respectively the Tribunal received responses to the summonses it had issued to Holmes Institute.[7]

    [7]     T1, f.55-62

11. On 21 September 2017 the Tribunal invited the applicant under section 359A of the Act to comment upon the information it had received from Holmes Institute. In addition, in the same letter and under subsection 359(2) of the Act, the Tribunal invited the applicant to provide information that demonstrated that he had ‘vocational English’, as defined in regulation 1.15B, or information that demonstrated that he was a person in a class of persons specified by the Minister in an instrument in writing for the purposes of paragraph 186.222(b) of the Regulations. Copies of the Holmes Institute report provided to the Tribunal on 19 September 2017 and the relevant legislative provisions were included with this letter to facilitate the applicant’s response. The Tribunal letter also indicated that applicant’s response and the requested information should be provided by 5 October 2017.[8]

    [8]     T1, f.68-119

12. On 5 October 2017 the applicant’s representative provided additional information in response to the Tribunal invitation. She also requested additional time in which to provide evidence confirming the applicant’s overseas qualifications, which she believed would be available after 3 weeks.[9]

    [9]     T1, f.120-126

13. On 14 November 2017 the Tribunal wrote to the applicant’s representative regarding the failure to provide this outstanding evidence.[10] As a result, on 21 November 2017 the Tribunal received an official transcript (dated 13 November 2017[11]) from the Dean of the Faculty of Commerce at The Maharaja Sayajirao University of Baroda. This document stated that the applicant was a bona fide student enrolled in its ‘Bachelor of Commerce’ from June 2000 to April 2003 and that the medium of instruction for this course was English. 

    [10]    T1, f.132

    [11]    T1, f.167

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. Division 186.2 ‘Primary Criteria’ in Subclass 186 provides that the primary criteria an applicant in the Temporary Residence Transition stream must satisfy are set out in Subdivisions 186.21 (‘Common criteria’) and 186.22 (‘Criteria for Temporary Residence Transition stream’). 

16. In addition, Division 186.2 specifically states that the primary criteria must be satisfied by at least one member of a family unit, and that all criteria must be satisfied at the time a decision is made on the application.

17. The issue in the present case is whether the applicant meets the requirements of clause 186.222 of the Regulations.

    English language proficiency

18. Specifically, for applicants in the Temporary Residence Transition stream clause 186.222 provides:

    186.222At the time of application, the applicant:

    (a)had vocational English; or

    (b)was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

    Paragraph 186.222(a) - Vocational English:

19. ‘Vocational English’ is defined in regulation 1.15B of the Regulations. A person will have vocational English if he or she either:

    ·undertook a specified language test[12]  in the three years immediately preceding the visa application[13] and achieved a specified score[14]; or

    ·holds a specified passport.[15]

    The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005, 'Language Tests, Score and Passports 2015 (Regulations 1.15B, 1.15C, 1.15D and 1.15EA)', 3 December 2014. 

    [12] Paragraph 1.15B(1)(a) of the Regulations

    [13] Paragraph 1.15B(1)(bb) of the Regulations

    [14] Paragraph 1.15B(1)(c) of the Regulations

    [15] Subregulation 1.15B(2) of the Regulations

20. The applicant stated in his visa application form that he was a citizen of India.[16] He also provided a copy of a valid Indian passport[17] in support of his application. In addition, the applicant gave oral evidence before the Tribunal that he did not hold a valid passport issued by any other country.

    [16]    D1, f.109

    [17]    D1, f.88

21. Accordingly, the Tribunal is satisfied that the applicant was not the holder of a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland when he lodged his visa application on 11 August 2016. Therefore, the Tribunal finds that he did not have ‘vocational English’ on this basis and as set out in IMMI 15/005[18] for the purposes of subregulation 1.15B(2) of the Regulations.

    [18]    See subclause 5.C of IMMI 15/005

22. Subregulation 1.15B(1) requires the applicant to have undertaken a specified English language test and to have achieved the specified score during the three years immediately before the lodgment of his visa application.

23. For this purpose, the applicant stated in his visa application form that he had not undertaken an English language test within the last 36 months prior to lodging this application, but that he had functional English.[19] In addition, the applicant indicated that he was seeking an exemption from the English language requirement on the basis of having 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.[20]

    [19]    D1, f.120

    [20]    D1, f.123

24. Accordingly, the applicant did not provide the Department with any evidence that he had undertaken an International English Language Testing System (‘IELTS’) test for the purposes of his visa application. Instead, the applicant sought to rely on evidence that he had completed a number of courses of study in Australia.[21]

    [21]    D1, f.27 & 29-33

25. In addition, the applicant did not submit the results of any IELTS test to the Tribunal for the purposes of his application for review. At the hearing the applicant confirmed that he had not undertaken an IELTS test, an Occupational English Test, a Test of English as a Foreign Language internet-based Test, a Pearson Test of English Academic, or a Cambridge English: Advanced Test for the purposes of his visa application.

26. The Tribunal also notes that the applicant has also not submitted since the hearing any additional evidence to indicate that, at the time of application, he had undertaken any of the English language tests specified for the purposes of regulation 1.15B.

27. As a consequence, the Tribunal finds that the applicant did not have ‘vocational English’, as defined in regulation 1.15B at the time of application.

28. Therefore, the Tribunal finds that at the time of application the applicant did not have ‘vocational English’ and that he consequently does not meet the requirements of paragraph 186.222(a).

    Paragraph 186.222(b) – Specified Class of Exempt Persons:

    (a)The Application of Legislative Instrument IMMI 17/058:

29. In the alternative, paragraph 186.222(b) requires that at the time of application the applicant was a person in a class of persons specified for this paragraph.

30. However, as noted above, Division 186.2 also provides that the Tribunal must be satisfied that this criterion is met at the time it makes its decision.

31. The Tribunal observes that when the applicant lodged his visa application on 11 August 2016, the instrument that specified the class of persons for paragraph 186.222(b) was legislative instrument IMMI 15/083 ‘Specification of Class of Persons 2015’.[22]

    [22]    IMMI, 15/083 ‘Specification of Specification of Class of Persons 2015 (Subclause 186.234(3) and Paragraphs 186.221(b), 186.222(b), 186.231(b), 186.232(b), 187.221(b), 187.222(b), 187.231(b), 187.232(b), 187.234(a) and Sub-subparagraph 5.19(4)(h)(ii)(D))’, 25 June 2015.

32. However, at the time of the Tribunal’s decision the relevant instrument specified for the purposes of paragraph 186.222(b) is IMMI 17/058 ‘Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas’.[23]

    [23]    IMMI 17/058, ‘Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas, 23 June 2017. ’

33. Notably, at the time of the Tribunal’s decision there is no judicial authority that specifically addresses which of the two legislative instruments, IMMI 17/058 or IMMI 15/083 should be applied for the purposes of paragraph 186.222(b).

34. The Tribunal has also become aware of a departmental media release (dated 11 July 2017[24]) that seeks to clarify changes to employer-sponsored permanent visas, and which states:

    The business community should be assured that changes to the exemption to English language and skills assessment requirements for employer-sponsored permanent visas will not be applied to applications lodged before the changes came into effect on 1 July 2017.

    The Government is removing the exemption for applicants earning over $180,000 per year for English language and skills assessments for the Employer Nomination Scheme (subclass 186) and Regional Sponsored Migration Scheme (subclass 187).

    In implementing this change, the Department will ensure it only affects applications lodged from 1 July.

    The removal of the exemption is designed to prevent misuse of the program by individuals inflating their income to avoid having to undertake an English test or a skills assessment.

    Applications lodged before 1 July will continue to be assessed on merit, and anyone suspected of inflating their incomes will be subject to further scrutiny in the application process.

    [Tribunal emphasis]

    [24]    T1, f.133: See - Accessed 14 and 27 November 2017

35. However, the Tribunal observes that at Part 4 of IMMI 17/058, subparagraph 13(1) specifically states that ‘[t]his instrument applies to applications for Subclass 186 and Subclass 187 visas …made before 1 July 2017 and not finally determined by that date.’ In other words, IMMI 17/058 repealed and replaced IMMI 15/083. As a result, it applies to a Subclass 186 visa application, such as the current application, that was made before 1 July 2017 and not determined by that date.[25]

    [25]    See IMMI 17/058, Part 4, clause 13 at page 5

36. In addition, the Tribunal notes that the Courts have held that the departmental policy set out in the ‘Procedures Advice Manual 3’ (‘PAM3’) guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations. Consequently, they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[26] As a result, it is well established that, whilst the Tribunal may be guided by policy, it is not bound to follow it.[27]

    [26]    See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55]

    [27]    See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

37. Importantly, and for analogous reasons, the Tribunal considers the contents of a departmental media release cannot be binding upon it, especially in relation to the task of construing a particular legislative provision in the Regulations. As a result, to the extent the departmental media release issued on 11 July 2017 seeks to override the wording of IMMI 17/058, the Tribunal considers that it constitutes an impermissible gloss on the wording and effect of this legislative instrument.

38. Accordingly, given the wording of Division 186.2, clause 186.222 and IMMI 17/058, the Tribunal considers it should apply IMMI 17/058 to the facts of this case. For the purposes of paragraph 186.222(b), IMMI 17/058 specifies the following class of persons at clause 12:

    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. 

39. As noted above, the applicant claimed that he was in a class of persons specified for the purposes of paragraph 186.222(b) because he had undertaken post-secondary studies.

40. Consequently, the applicant submitted copies of his qualification certificates including statements of completion and academic transcripts for the course of study he had undertaken in Australia in support of his claims. [28]

    [28]    D1, f.27, 29-33 & T1, f.36-41 & 43

41. However, this documentation did not provide sufficient detail regarding the duration of the Australian courses undertaken by the applicant. At the hearing the applicant told the Tribunal that he had been unable to obtain this from Holmes Institute.

42. As a result, the Tribunal examined the applicant’s PRISM[29] records, including the records regarding his ‘Confirmation of Enrolment’ in several courses of study, to assess the duration of the courses of study the applicant had undertaken in Australia.[30] It also issued three summonses to Holmes Institute for additional information regarding the courses the applicant claimed he had undertaken with this education provider.[31]

    [29]    PRISM: Provider Registration and International Student Management System

    [30]    T1, f.211-31

    [31]    T1, f.68-77 & 106-115

43. Accordingly, the evidence before the Tribunal indicates that the applicant has undertaken the following courses of study in Australia:

Course Dates	Institution	Course	Course Duration (Months)	Completion Date	Tuition Delivered on Full-time Basis in English
11.02.08 -06.11.09	Holmes Institute	Diploma of Hospitality  Management (THH51202) including the award of: ·     Certificate III in Hospitality (Commercial Cookery THH31502); and ·     Certificate IV in Hospitality (Commercial Cookery THH41302)	21	06.11.09	Yes
15.03.10 - 20.08.10	Holmes Institute	Certificate IV in Business (BSB40207)	5 months & 1 week	20.08.10	Yes
15.10.08 - 17.09.10	Holmes Institute	Diploma of Management  (BSB55107)	7 months 3 weeks	15.04.11	Yes
18.07.11 - 28.06.13	Holmes Institute	Bachelor of Business	24	Applicant only completed 71% of the course	Yes

1. On 21 September 2017 the Tribunal invited the applicant to comment on this information, including the fact that this evidence indicated that the applicant had completed less than five years of full-time study at a higher education institution in Australia. Notably, the applicant and his representative did not dispute the accuracy of these records in the response they provided to the Tribunal on 5 October 2017.[32]

   [32]    T1, f.106-126

2. Nevertheless, the applicant’s representative indicated that the applicant wished to rely upon his overseas qualifications to demonstrate that he met the exemption in clause 12 of IMMI 17/058 as a person who had completed at least five years of full-time study in a higher education institution where all of the tuition was delivered in English.[33] This was on the basis that the applicant had completed a ‘Bachelor of Commerce’ at The Maharaja Sayajirao University of Baroda in India.

   [33]    T1, f.121

1. Accordingly, the evidence and relevant issues are discussed as follows:

   (i)The Applicant’s Secondary School Studies:

2. The applicant did not set out in either his online visa application or his personal particulars forms the details of his secondary school education.[34] He also did not claim at the Tribunal hearing, and there is otherwise little in the evidence, to indicate that his secondary school tuition in India was delivered in English.

   [34]    D1, f.60 & 114

3. In addition, the applicant has not claimed, and did not dispute at the hearing, that the courses of study he had undertaken in Australia did not involve full-time study in a secondary education institution.

4. As a result, the Tribunal is not satisfied that the applicant completed his secondary school education at a secondary education institution where all of the tuition was delivered in English, for the purposes of the exemption in clause 12 of IMMI 17/058.

5. Therefore, the Tribunal finds that the applicant is not a person who had completed at least five years of full-time study in a secondary education institution at the time of application for the purposes of paragraph 186.222(b).

   (ii)What Constitutes Full-time Study in a ‘Higher Education Institution’?

6. As the applicant is seeking to rely on his Australian qualifications to demonstrate that he is exempt from the English language requirement in clause 186.222, the Tribunal has considered whether the applicant’s studies in Australia would qualify for the purposes of the class specified in clause 12 of IMMI 17/058.

7. Importantly, the Tribunal notes that whilst the exemption at clause 12 of IMMI 17/058 refers to full-time study in a ‘higher education institution’, this term is not defined in either the Act or Regulations.

8. According to the Macquarie Dictionary online the term ‘higher education’ is defined to mean ‘education beyond secondary education’.[35] It also relevantly defines ‘institution’[36] 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.   

   [35]    T1, f.134: See – Accessed 14 November 2017

   [36]    T1, f.135: See – Accessed 14 November 2017

9. As such, the ordinary dictionary meaning of ‘higher education institution’ suggests that a ‘higher education institution’ is an institution that provides education services after secondary school. However, the Tribunal notes that this dictionary-based definition does little to differentiate between the types of institutions that deliver post-secondary school education. 

10. In terms of what kind of institution, or provider of education services, will constitute a ‘higher education institution’, PAM3 provides the following guidance:

    6.10.2.2   5 years or more full-time study in secondary and/or higher education, with all tuition in English

    Higher education is understood to mean tertiary studies at university or equivalent level. Vocational educational training courses (VET) where course requirements comprise a mixture of classroom tuition and on-the-job training cannot be accepted. Also not acceptable are English language courses undertaken for the specific purpose of obtaining an IELTS or equivalent score.

    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.

    The required total of five years can consist of full-time study at secondary (high-school) level only; or it can be a mixture of secondary and tertiary studies; or it can consist of university level-equivalent study only, comprising a mixture of undergraduate (Bachelor) and graduate (Masters and/or Doctoral) studies.

    Note: Even though exempted for visa purposes from the English requirement, these applicants (and any secondary applicants who were 18 or over at the time of application) must still be assessed as to whether they have functional English- refer to Assessment of functional English.

    [Tribunal emphasis]

11. However, as noted previously, departmental policy cannot go beyond the wording of the legislation. As a consequence, whilst the Tribunal accepts that this is a valid starting point for assessing what constitutes study in a higher education institution, it is not finally determinative of the issue.

12. Although the Act and Regulations do not define ‘higher education institution’ for the purposes of the exemption at clause 12 of IMMI 17/058, regulation 1.03 of the Regulations does define ‘Education’ to mean the Department administered by the Education Minister.

13. Importantly, the Department of Education and Training (‘DET’) is responsible on behalf of the Education Minister and the Commonwealth government for the development of world-class systems for Australia in the following areas: child care; school education; higher education; skills and training (vocational education and training); and international education.

14. In doing so, DET has a role in ensuring the quality of services provided in each of these sectors[37] 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’)[38]; and

    ·     The Australian Skills Quality Authority (‘ASQA’), which is responsible for ensuring a high quality vocational education and training (‘VET’) sector.[39]

    [37]    T1, f.136-138: See - Accessed 14 and 27 November 2017

    [38]    T1, f.139: See - Accessed 14 November 2017

    [39]    T1, f.136-138: See - Accessed 14 and 27 November 2017

15. According to DET, Australia’s higher education system comprises both public and private universities, Australian branches of overseas universities, and other non-university higher education providers, with 92% of students enrolled with universities and a majority of these being enrolled in bachelor degrees.[40]

    [40]    T1, f.140-141: See - Accessed 14 and 27 November 2017

16. The TEQSA website reinforces that the Australian higher education system consists of both university and other higher education providers for undergraduate awards upwards from the bachelor level.[41]

    [41]    T1, f.139: See - Accessed 14 November 2017

17. Therefore, unlike the guidelines in PAM3, neither DET nor TEQSA restrict study at a ‘higher education institution’ solely to universities. In other words, both of these agencies indicate that Australia’s higher education system includes ‘non-university higher education providers’. However, it remains important to noted that:

    TEQSA registers and evaluates the performance of higher education providers against the Higher Education Standards Framework - specifically, the Threshold Standards, which all providers must meet in order to enter and remain within Australia’s higher education system.[42]

    [42]    T1, f.139: See - Accessed 14 November 2017

18. In particular, 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 the concept ‘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 under the Australian Qualifications Framework. 

19. As a consequence, not every education institution that provides a post-secondary education service in Australia can claim to be a higher education institution. In other words, those education institutions seeking to provide services in the higher education sector are required to be registered by TEQSA as a higher education provider.  TEQSA maintains a national register for this purpose[43] and DET also maintains a list of higher education institutions.[44] 

    [43]    T1, f.142-143: See - Accessed 14 and 27 November 2017

    [44]    T1, f.144-147: Created on 23 August 2016 and last modified on 7 September 2016. See: - Accessed 14 and 27 November 2017  

20. Similarly, ASQA is the national regulator for the VET sector under the National Vocational Education and Training Regulator Act 2011 (‘the National VET Act’)[45], which includes registering training providers as ‘registered training organisations’.[46] The details of those registered by ASQA to provide VET services are available from the  website[47], which is a joint initiative of the Australian and State and Territory governments.

    [45]    T1, f.148-149: See & - Accessed 14 and 27 November 2017

    [46]    T1, f.150: See - Accessed 14 and 27 November 2017

    [47]    T1, f.151: See - Accessed 14 and 27 November 2017

21. Information regarding those registered to provide education or training services to international students studying in Australia is also available from the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) under the Educational Services for Overseas Students Act 2000.[48]

    [48]    T1, f.152-154: See and - Accessed 14 and 27 November 2017

22. Therefore, for the purposes of clause 12 in IMMI 17/058 the Tribunal has had regard to the ordinary dictionary meaning of the words ‘higher education’ and ‘institution’ and the definition of ‘Education’ in regulation 1.03 of the Migration Regulations. It has also taken into account the responsibilities of the Minister for Education and DET, TEQSA and ASQA, as well as the policy guidelines in PAM3.

23. On the basis of this evidence, the Tribunal is of the view that the term ‘higher education institution’ in Australia refers to an education provider that is registered by TEQSA for this purpose, rather than an education provider registered by ASQA for the VET sector.

24. In addition, the Tribunal observes that, if the departmental policy intention in relation to paragraph 186.222(b) was to limit the availability of the ‘higher education’ exemption in clause 12 of IMMI 17/058 to only those who had undertaken a bachelor or higher level course of study at a university (or its equivalent), then this could easily have been achieved by including a definition of ‘higher education institution’ in IMMI 17/058 to that effect.

25. Accordingly, to the extent that the guidelines in PAM3 suggest that only study at a university level at the undergraduate bachelor or graduate (Masters and/or Doctoral) level can constitute study in a ‘higher education institution’, the Tribunal finds that the policy goes beyond the wording of the legislation. Given this, the Tribunal is satisfied that there are cogent reasons to depart from it in this respect.

    (iii)Did the Applicant undertake his Studies in a ‘Higher Education Institution’ in Australia?

26. As set out in the above table, the applicant has studied a variety of courses in Australia from February 2008 to June 2013. He has also been issued with a range of qualification certificates by Holmes Institute.

27. In relation to the courses of study the applicant has undertaken in Australia, the Tribunal observes that according to the TEQSA national register, Holmes Institute Pty Ltd is currently registered as a higher education provider in Australia.[49] The Tribunal further notes that this institution also appears on the DET-held list of ‘Higher Education Institutions’ as a non-university approved higher education institution.[50]

    [49]    T1, f.155: See - Accessed 14 and 27 November 2017

    [50]    T1, f.45: See - Accessed 14 and 27 November 2017

28. In terms of the duration of the applicant’s studies, the Tribunal has had regard to the reports it received from Holmes Institute, dated 19 September 2017[51] and 21 November 2017[52] respectively. These reports included the applicant’s relevant academic transcripts and certificates, and confirmed that he was enrolled full-time in the courses set out in the table at paragraph 43 above, in respect of which the tuition was delivered in the English language.

    [51]    T1, f.68-77

    [52]    T1, f.172

29. On 21 November 2017 Holmes Institute informed the Tribunal that the applicant’s ‘Bachelor of Business’ course was a three-year course of study (156 weeks), which he did not fully complete. It also advised that the applicant began this course on 18 July 2011 and that his enrolment ended on 28 June 2013.[53] 

    [53]    T1, f.172

30. The Tribunal notes that the wording of clause 12 in IMMI 17/058 does not require an applicant to have completed each course of study in which they have enrolled. Rather, it requires the applicant to have completed at least five years of full-time study in a secondary and/or higher education institution (Tribunal emphasis).

31. Accordingly, given that the applicant commenced his ‘Bachelor of Business’ on 18 July 2011 and his enrolment ended on 28 June 2013, the Tribunal finds that he completed two academic years, or 24 months of study, in this course at Holmes Institute.

32. As a result, and for the purposes of clause 12 of IMMI 17/058, the Tribunal finds that the applicant had completed 58 months of full-time study at Holmes Institute, a higher education institution, where all of the tuition was delivered in English, at the time of application on 11 August 2016.

    (iv)Has the Applicant completed relevant Studies in a ‘Higher Education Institution’ in India?

33. As noted previously, the applicant claimed that he had completed at least five years of full-time study in a higher education institution where all of the tuition was delivered in English when he lodged his visa application based on his Indian and Australian studies. In particular, the applicant stated that he had completed a ‘Bachelor of Commerce’ at The Maharaja Sayajirao University of Baroda in India.

34. The Tribunal notes that IMMI 17/058 and the relevant policy guidelines do not restrict the exemption in clause 12 solely to studies undertaken in an Australian higher education institution. Accordingly, given the wording of the clause 12 in IMMI 17/058 the Tribunal considers it is relevant to take into account the applicant’s tertiary studies in India.

35. According to the Country Education Profile for India available on the Australian Department of Education and Training website[54], The Maharaja Sayajirao University of Baroda is a State University in Gujarat, India belonging to the higher education sector.[55]

    [54]    T1, f:156: See - Accessed 14 and 27 November  2017

    [55]    T1, f.156

36. As a consequence, the Tribunal is satisfied that The Maharaja Sayajirao University of Baroda in India is a ‘higher education institution’ for the purposes of the exemption in clause 12 of IMMI 17/058.

37. The Tribunal also notes that the applicant submitted the following evidence in support of this claims to have completed a ‘Bachelor of Commerce’ at this particular university:

    ·Copies of three ‘Statement of Marks’ documents issued to the applicant for his examinations in 2001, 2002 and 2003 by the Commence Faculty of The Maharaja Sayajirao University of Baroda in relation to his ‘Bachelor of Commerce’[56]; 

    ·A ‘Bona fide Certificate’ (dated 24 August 2017[57]) from the Commence Faculty of The Maharaja Sayajirao University of Baroda stating that the applicant was a bona fide student in this faculty from 2001 to 2003 and that he was a person of “good moral character.” This document also states that the medium of instruction within this faculty is English;

    ·A statutory declaration (dated 30 August 2017[58]) from the applicant declaring that he had lost his college documents/certificates for his ‘Bachelor of Commerce’ in August 2012, and that he had lodged a formal complaint regarding this matter with the police at that time;

    ·A copy of an undated letter[59] to the principal of The Maharaja Sayajirao University of Baroda requesting a copy of the applicant’s academic transcript for the ‘Bachelor of Commerce’ with confirmation that his studies were completed in the English language;

    ·A copy of a receipt (dated 4 October 2017[60]) issued to the applicant by the Commence Faculty of The Maharaja Sayajirao University of Baroda;

    ·A copy of an Indian Non-judicial affidavit (dated 4 October 2017[61]) from the applicant’s nephew confirming that he had been authorised to receive a copy of the applicant’s academic transcript in India; and

    ·An official transcript (dated 13 November 2017[62]) from the Dean of the Faculty of Commerce at The Maharaja Sayajirao University of Baroda. This document stated that the applicant was a bona fide student enrolled in the ‘Bachelor of Commerce’ from June 2000 to April 2003 and that the medium of instruction for this course was English.    

    [56]    T1, f.42-42 reverse,120- 120 reverse & 122

    [57]    T1, f.43 reverse & 123

    [58]    T1, f.122 reverse

    [59]    T1, f.124 reverse

    [60]    T1, f.123 reverse

    [61]    T1, f.125 reverse

    [62]    T1, f.167

38. Given this evidence, the Tribunal is satisfied that at the time of application on 11 August 2016 the applicant had completed three years (36 months) of full-time study at The Maharaja Sayajirao University of Baroda in India, a higher education institution where all of the tuition was delivered in English.

    (v)The Combined Effect of the  Applicant’s Studies in India and Australia:

39. As noted previously, the Tribunal is satisfied that at the time of application on 11 August 2016 the applicant had completed approximately 58 months of full-time study at a higher education institution in Australia, namely, at Holmes Institute, where all of the tuition was delivered in English for the purposes of the exemption in clause 12 of IMMI 17/058.

40. In addition, the Tribunal is satisfied that the applicant completed 36 months of full-time study at a higher education institution in India, namely, at The Maharaja Sayajirao University of Baroda, where all of the tuition was delivered in English for the purposes of the exemption in clause 12 of IMMI 17/058.

1. As a result, the Tribunal finds that the applicant had completed approximately 94 weeks of full-time study at higher education institutions in India and Australia prior to the lodgment of his visa application on 11 August 2016.

2. Accordingly, given these findings, the Tribunal is satisfied that the applicant had 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 at the time he lodged his visa application on 11 August 2016.

3. Consequently, the Tribunal finds that the applicant was a person in a class of persons specified by the Minister in IMMI 17/058, an instrument in writing for the purposes of paragraph 186.222(b), at the time of application.

4. Therefore, the Tribunal finds that the applicant meets the requirements of paragraph 186.222(b) and clause 186.222.

   (b)The Application of Legislative Instrument IMMI 15/083:

5. Further, in the event that the correct interpretation of paragraph 186.222(b) requires the Tribunal to apply IMMI 15/083, it observes that IMMI15/083 specifies two classes of person who are exempt for the purposes of paragraph 186.222(b). These are:

   ·Clause 2:

   Class 1

   Persons who have applied under the Regulations for a visa, and whose earnings will be at least equivalent to the current Australian Taxation Office’s top individual income tax rate.

   ·Clause 4:

   Class 3

   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. 

6. In relation to clause 2 and Class 1 in IMMI 15/083, at the time of the Tribunal’s decision, the current top individual income tax rate set by the Australian Tax Office is $180,001 and over. This was also the rate that applied when the applicant lodged his visa application on 11 August 2016.[63] 

   [63]    T1, f.157: See - Accessed 14 and 27 November 2017

7. In his online visa application the applicant indicated that he was not seeking an exemption on the basis that his earnings were equivalent to the current top individual income tax rate set by the Australian Tax Office.

8. In addition, on 21 September 2017 the Tribunal invited the applicant under subsection 359(2) of the Act to provide any information that confirmed that he was a person whose earnings would be at least equivalent to the current top individual income tax rate set by the Australian Tax Office when he lodged his visa application on 11 August 2016. However, the applicant and his representative did not provide any information to this effect as part of their submissions dated 5 October 2017 and 21 November 2017.

9. As a consequence, the Tribunal is satisfied that the applicant did not come within Class 1 in of the persons specified in clause 2 of IMMI 15/083 for the purposes of paragraph 186.222(b) at the time of application.

10. As regards clause 4 and Class 3 in IMMI 15/083, apart from some minor changes in relation the wording of this clause compared to the class of persons listed in clause 12 of IMMI 17/058 for the purposes of paragraph 186.222(b), clause 4 in IMMI 15/083 largely reflects what is set out in clause 12 of IMMI 17/058.

11. As a result, and for the reasons set out above, the Tribunal finds that applicant had 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 at the time he lodged his visa application on 11 August 2016. Therefore, the Tribunal is also satisfied that the applicant is a person specified in Class 3 of clause 4 in IMMI 15/083.

12. Given the above findings, the Tribunal finds that the applicant was also a person in a class of persons specified by the Minister in IMMI 15/083, an instrument in writing, for the purposes of paragraph 186.222(b) at the time of application.

    Summation:

13. Consequently, the Tribunal is satisfied that at the time of application the applicant was a person in a class of persons specified by the Minister in an instrument in writing for the purposes of paragraph 186.222(b).

14. Therefore, the Tribunal finds that the applicant meets the requirements of paragraph 186.222(b) regardless of whether it applies the current legislative instrument IMMI 17/058, or its predecessor IMMI 15/083.

    CONCLUSION

100. Accordingly, given the above findings in respect of paragraph 186.222(b), the Tribunal finds that the applicant meets the requirements of clause 186.222. Therefore, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visas.

DECISION

101.   The Tribunal remits the application for the 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:

·Clause 186.222 of Schedule 2 to the Regulations.

Danica Buljan
Member