Endaya (Migration)

[2017] AATA 2915

Endaya (Migration) [2017] AATA 2915 (21 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rizaleo Magnaye Endaya

CASE NUMBER:  1617545

DIBP REFERENCE(S):  BCC2016/789252

MEMBER:Alison Mercer

DATE:21 December 2017

PLACE OF DECISION:  Melbourne

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.

Statement made on 21 December 2017 at 11:53am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) – Subclass 186 (Employer Nomination Scheme) visa – Temporary Residence Transition stream – Nominated position – Metal Fabricator – English language requirements – Vocational English – Seeking language requirements exceptions – High school and part of a vocational course studied in English 

LEGISLATION
National Vocational Education and Training Regulator Act 2011 
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15B Schedule 2 cls 186.222, 186.222(a), 186.222(b)
Tertiary Education Quality and Standards Agency 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 Immigration on 5 October 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 25 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 Metal Fabricator (ANZSCO code 322311). 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 of Schedule 2 to the Regulations. The delegate found that the applicant did not satisfy the English proficiency requirement to demonstrate, by obtaining the required scores in a specified English test, that he had vocational English (as defined in r.1.15B of the Regulations and as required by cl.186.222(a)), and there was no evidence that he was exempt from having to do so (having regard to the specified bases for exemption in written instrument IMMI 15/005 as required by cl.186.222(b)).

6. The Tribunal received a review application from the applicant on 22 October 2016.  It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Francis Alberto, as his representative and authorised recipient for correspondence.  The agent provided the following written submissions to the Tribunal with the review application:

   ·the applicant was seeking to meet the English language criteria as an exempt applicant;

   ·legislative instrument F2015L01018 [30 June 2015] specified that a class of exempt persons for the purposes of cl.186.222(b) was ‘Class 3: persons who have completed at least 5 years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English;’

   ·the applicant had studied for 4 years in an English medium school at secondary level and studied for a further 2 years at vocational level where English was the medium of instruction, in the Philippines; and

   ·documentary evidence of this was provided and thus it was submitted that the applicant did satisfy cl.186.222.

7. The submission was accompanied by the following documents:

   ·certification from Sta. Teresa College, Batangas, the Philippines, dated 4 May 2015 that the applicant is a graduate of the high school (his senior year being 1996 – 1997) and that the medium of instruction at the school is English;

   ·the applicant’s student record from Sta. Teresa College indicating that he attended from 1993 to 1997; and

   ·letter from the Office of the Registrar of the University of Batangas, the Philippines, dated 7 May 2015 stating that the medium of instruction in the secondary and tertiary levels of the University is English.  The letter further states that the applicant completed a 2 years Electronics Computer Technology qualification there in March 1999, with academic transcript attached.

8. The applicant participated in a telephone hearing with the Tribunal on 14 August 2017 to give evidence and present arguments. The Tribunal also received submissions from the applicant’s agent by telephone.

9. The applicant’s agent stated that the information concerning the applicant’s years of study in English in the Philippines had been provided to the Department and it was unclear to them why it had not been accepted. He agreed with the Tribunal’s view that this appeared to be the only ground under which the applicant appeared to be eligible for an exemption from having to sit a specified English test.

10. The applicant clarified that he undertook 2 years of full time study at the University of Batangas in the Philippines, which fell short of a Bachelor degree, but nevertheless entitled him to be awarded a vocational qualification. The Tribunal noted that the Department’s Procedures Advice Manual (PAM3) indicated that ‘higher education institution’ did not include vocational level courses, on the basis that the majority (if not all) of such courses were likely to involve practical training rather than theoretical learning requiring high level English skills. The applicant and his agent responded that the applicant’s course was in IT and involved more theory-based subjects than practical placements. The applicant said that only 1 semester of the 2 year course consisted of on-the-job training.  They undertook to provide more information about the course after the hearing.

11. On 30 August 2017, the applicant’s agent provided the following further written submissions:

    ·the unit descriptions issued by the University of Batangas Office of the Registrar on 17 August 2017 substantiated the applicant’s claims that even though his qualification from that institution was vocational level, his units for that course consisted of theories and principles equivalent to Bachelor degree level units or subjects;

    ·in the Philippines, there had been mutual recognition of qualifications, with vocational level and higher level education courses recognised as going towards each other. A recognition process called ‘ladderized education’ was an articulation that allowed students to make a smooth transition from one course to the next level without duplication of learning. ‘Ladderization’ provided multiple entry and exit points and ladders of learning opportunities and allowed a student to move from a vocational course to Bachelor degree qualifications using the principle of credit transfer(s). It was such a widespread practice in the Philippines that an Act was passed on 11 December 2014 known as the ‘Ladderized Education Act of 2014’ to formalise and strengthen the system;

    ·Australia’s Recognition of Prior Learning (RPL) process was similar as it allowed competencies gained from previous study or work experience to be assessed and recognised. Further, most TAFE colleges who provided vocational education and training (VET) courses in Australia had articulation agreements with universities that provided fast track pathways to enable VET graduate students to be recognised as the equivalent of the first year of a Bachelor degree;

    ·in Australia, the Australia.gov.au website defined ‘higher education’ as ‘(a) also referred to as tertiary 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);’

    ·if the dictionary definition of ‘higher education’ was considered, it included the following: (a) education at a college or university where subjects are studied at an advanced level; or (b) education beyond the secondary level; especially education provided by a college or university; and

    ·based on the above, it was submitted that the applicant was exempt from having to demonstrate vocational English (as set out in r.1.15B) and thus met cl.186.222.

12. The supporting documentation included a letter from the Office of the Registrar of the University of Batangas dated 17 August 2017, setting out the subjects undertaken by the applicant in his Certificate of Proficiency in Electronics Computer Technology (ECT), being:

    ·Basic/Digital Electronics;

    ·Introduction to Computer;

    ·Physical Fitness/Testing;

    ·Work Ethics;

    ·English for Technology 1;

    ·Applied Mathematics;

    ·Basic Drawing;

    ·Typing 1;

    ·Computer System & Hardware;

    ·Logic and Switching Theory;

    ·Work Ethics 2;

    ·Rhythmic Activities;

    ·Programming Language 1 (Basic and Wordstar);

    ·Applied Mathematics 2;

    ·Mechanics and Heat;

    ·English for Technology 2;

    ·Computer Servicing and Installation;

    ·Computer Networking and Installation;

    ·On the Job Training;

    ·Magnetism, Electricity, Sound and Light;

    ·Programming and Machine Organisation;

    ·Programming Language 2 (Lotus and Dbase 3);

    ·Shop Management;

    ·Individual/Dual Sports; and

    ·Team Sports/Games.

13. Also provided were the following:

    ·a document headed ‘Implementing Rules and Regulations (IRR) of the Ladderized Education Act of 2104;’

    ·extract from website education on ‘higher education’ in Australia;

    ·extracts from Merriam Webster and Cambridge online dictionaries for ‘higher education’ definitions;

    ·extract from websites of TAFE WA North Metropolitan and South Metropolitan on ‘Uni pathways – from TAFE to University;’

14. Finally, the applicant’s agent referred the Tribunal to a previous Tribunal decision (differently constituted), MRD 1606923 of 20 July 2017, in which it was submitted that the Tribunal had considered the same requirement, and a similar overseas vocational course undertaken in English by the primary applicant in that case, and had remitted the case on the basis that cl.186.222(b) was satisfied.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    English language proficiency

16. 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 17/058 as exempt from having to demonstrate vocational English via a specified test: cl.186.222.

17. ‘Vocational English’ is defined in r.1.15B of the Regulations. A person will have vocational English 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.

18. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005. A passport issued by the Philippines (as held by the applicant) is not specified in IMMI 15/005 as demonstrating vocational English for the purposes of r.1.15B.

19. The applicant has not provided evidence that he has sat a specified test set out in IMMI 15/005 that demonstrates that he has vocational English (as defined in r.1.15B) as required by cl.186.222(a). Instead, he has argued that he is exempt from having to do so pursuant to IMMI 17/058, and thus meets cl.186.222(b). Specifically, he claims that he has undertaken at least 5 years of secondary and higher education in the Philippines, the medium of instruction for which was English.

20. As noted above, IMMI 17/058 is the current instrument setting out specified persons exempt from having to demonstrate vocational English in accordance with r.1.15B and cl.186.222(a). Item 12 of that instrument sets exempt persons in relation to a subclass 186 visa in the Temporary Residence Transition stream. They are:

    Persons who have completed at least 5 years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English.

21. The applicant has now provided evidence of having completed 4 years of secondary school education in the Philippines for which the medium of instruction was English, and 2 years of post-secondary education there (being a certificate from the University of Batangas in its Technical-Vocational Department) for which the medium of instruction was also English.

22. The Tribunal is satisfied from the documentary evidence before it that the 4 years of secondary schooling that the applicant undertook in the Philippines was taught in English and was undertaken on a full time basis, and thus falls within the terms of item 12 of IMMI 17/058. However, as the exemption in item 12 above requires ‘at least 5 years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English,’ the Tribunal must also consider the applicant’s study at the University of Batangas, as - without this study being counted - the applicant does not have at least 5 years of relevant study in English.

23. From the documentary evidence before it from the University of Batangas, the Tribunal is satisfied that:

    ·the applicant studied there on a full time basis and completed a Certificate of Proficiency in Electronics Computer Technology between 1997 and 1999; and

    ·the medium of instruction was English.

24. The question is whether this study constitutes ‘study at a higher education institution.’

25. There is no legal definition in the Act or Regulations for a ‘higher education institute.’  According to the Macquarie Dictionary online, the term ‘higher education’ is defined to mean ‘education beyond secondary education’. It also relevantly defines ‘institution’ 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.   

26. 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, this dictionary-based definition does little to differentiate between the types of institutions that deliver post-secondary school education.  As also noted above, Departmental policy, in the form of PAM3, seeks to confine fulltime study at a ‘higher education institution’ to tertiary study or equivalent level, and to exclude vocational educational training courses where the course requirements comprise a mixture of class room tuition and on-the-job training:

    8.12.2  TRT English language proficiency exemptions

    TRT high income earners

    Effective 1 July 2017, the $180,000 high income exemption for English language proficiency is no longer available.

    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’s emphasis in underlined font]

27. However, as previously stated, 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.

28. 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 does define ‘Education’ to mean the Department administered by the Education Minister.

29. In Australia, the Department of Education and Training (DET) is responsible on behalf of the Education Minister and the Commonwealth government for the development of systems for Australia in the following areas: child care, school education, higher education, skills and training (vocational education and training), and international education. In doing so, DET regulates the quality of services provided in each of these sectors and there is legislation requiring that providers of such services at all levels are registered. 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’); and

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

30. 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 are enrolled in bachelor degrees.

31. 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.

32. Therefore, unlike the guidelines in PAM3, in Australia, 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, 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.

1. 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  ‘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 (AQF). 

2. As a consequence, not every education institution that provides a post-secondary education service in Australia can claim to be a higher education institution. 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 and DET also maintains a list of higher education institutions. 

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

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

5. The applicant and his agent have submitted that the subjects undertaken by the applicant at the University of Batangas for his Certificate of Proficiency were in the main university level subjects, apart from a semester involving a practical placement, and therefore his 2 years of study for his Certificate should be counted for the purposes of the exemption in clause 12 of IMMI 17/058.

6. The Tribunal has had regard to the online Country Education Profile (CEP) on the Philippines published by DET (last updated February 2013) for further information on the applicant’s specific course and institution, and on the post-secondary education system generally in the Philippines.

7. The CEP overview of the Philippines education system overall states that ‘Technical and vocational education is provided at secondary and post-secondary levels by universities and colleges… Higher education is provided by universities and colleges, and programs are at least 4 years.’

8. The CEP overview on technical and vocational English in the Philippines indicates that [Tribunal’s emphasis in underlined font]:

   There are 2 levels of technical and vocational education:

   Secondary level: 4 year programs offered by vocational secondary schools

   ·Secondary and post-secondary level: informal short community and enterprise based programs

   ·Post-secondary level: formal 6 month to 3 year programs offered by training centres, technical and vocational schools and technical institutes. Some technical and vocational programs are also offered by community colleges, 4 year colleges and universities.

   ·At post-secondary level, this kind of education is an alternative to a degree program. Some students choose it as a first preference, others because they did not gain entry to university or college…

   Certificates and Diplomas

   Certificates and Diplomas are awarded by universities, community colleges or technical and vocational schools. Program lengths vary between 1 and 3 years. Commonly, Certificates from universities are 2 years in length and may articulate into a Bachelor degree…

   Post-secondary education

   Formal technical and vocational programs are run in a number of venues:

   ·Regional and Provincial Training Centres

   ·Technical and Vocational schools

   ·Technical Institutes

   ·Community colleges

   ·Colleges, universities and polytechnic universities

   …

   Technical Institutes (or Technician training institutes)

   Most technical institutes are privately run.  Some are incorporated into universities… they have a range of names…

   Most programs are 2 years and cover a similar range of fields to those in vocational schools.

   Students must have finished high school to gain entry to these programs which lead to Certificates and Diplomas. Some also offer degree programs. A certain level of achievement is required in mathematics, physics and English. Some institutions have an admissions test.

   Community colleges

   There are also a number of community colleges. Many were former community-based high schools.

   They offer 2 year programs in a range of fields leading to an Associate Degree.

   Technological University of the Philippines

   The Technological University of the Philippines was given university status in 1978. Before then it was the Philippines College of Arts and Trades.  It runs 3 technician institutes…, 226 national schools of arts and trades, 10 regional manpower training centres and a secondary school offering technical courses.

   The government sees this university as the leader in a future national polytechnic system, and is attempting to unify and integrate all levels of technical and vocational education.

   Another development in the sector is an articulated or ‘ladderized’ award which allows students to take a sequence of programs leading to a degree. For example a 1 year Junior Certificate in electrical engineering, then a 1 year Senior Certificate program, followed by a 1 year Diploma, and then a 2 year degree program leading to the Bachelor of Engineering. So far this has been limited to just a few institutions, including the Polytechnic University of the Philippines in Manila.

   Colleges and universities

   Technical and vocational education is a large part of the higher education sector. It covers a wide range of institutions, in type and quality.

   Colleges and Universities offer 3 types of technical and vocational programs:

   ·Certificates and Diplomas: programs of varying length

   ·Associate Degrees: 2 to 3 year programs in the sub-professional level in areas including surveying, business studies, paramedical fields and engineering, with awards such as Associate in Marine Engineering…

   ·Bachelor Degrees – 4 to 5 year programs, many with a strong vocational focus.

   Students taking the Bachelor degree must have finished high school and passed the National College Entry Exam. Those taking lower-level programs do not need to sit the exam…

9. The CEP list of Philippines institutions lists the University of Batangas as a level 2 Higher Education institution.  Level 2 is stated by the CEP to apply to deregulated and re-accredited institutions in the Philippines.  For these institutions, a Certificate is listed as being equivalent to a Certificate IV under the Australian Qualifications Framework (AQF).

10. The Tribunal considers that the above educational information suggests that in both Australia and the Philippines, the issue of what constitutes study at a ‘higher education institution’ is not clear-cut, and that post-secondary vocational studies may be undertaken at a ‘higher education institution’ in some circumstances in both countries (despite PAM3 stating that only Bachelor level or above courses should be considered for the purposes of clause 12 of IMMI 17/058).

11. The Tribunal notes 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 applicants who had undertaken a Bachelor or higher level course of study at a university (or its equivalent), then a definition of ‘higher education institution’ specifying this could have been included in IMMI 17/058.

12. Accordingly, to the extent that the guidelines in PAM3 suggest that only study at university level at the undergraduate Bachelor or post-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 clause 12 of IMMI 17/058 and, therefore, there are cogent reasons to depart from it in this respect.

13. Having considered the CEP information on the Philippines educational system, and the specific documentary evidence provided by the applicant and his agent, the Tribunal is satisfied that the applicant undertook 2 years of full-time study (1997 to 1999), taught in English, at the University of Batangas. The Tribunal is satisfied that this is a higher education institution in the Philippines which offers Certificate, Diploma and Bachelor degree qualifications. The Tribunal is further satisfied that the Certificate of Proficiency in Electronics Computer Technology obtained by the applicant consisted of 4 semesters, of which 3 involved subjects of a theoretical nature and 1 involved on the job training. It further appears – although the Tribunal acknowledges that it is not totally clear – that this Certificate is part of the ‘ladderized’ education system in the Philippines, such that the applicant may have been able to ‘articulate’ these subjects into a Bachelor degree, had he continued his studies at the University of Batangas.

14. Having considered the available evidence carefully, the Tribunal is satisfied that this represents 2 years of fulltime study in English at a higher education institution in the Philippines, notwithstanding the fact that the applicant did not obtain a Bachelor degree qualification or higher. The Tribunal considers it inappropriate to follow PAM3 and exclude this study from consideration in relation to the exemption in clause 12 of IMMI 17/058, as it considers that the interpretation placed by PAM3 on ‘study at a higher education institution’ is more restrictive than the plain wording expressed in clause 12 of IMMI 17/058.

15. Accordingly, the Tribunal is satisfied that the applicant had undertaken at least 5 years of fulltime study in the Philippines in a secondary and/or higher education institution where all of the tuition was delivered in English at the time that he made his subclass 186 visa application, and thus is exempt from having to demonstrate that he has vocational English.

16. Therefore, the Tribunal finds that cl.186.222(b) is met, and that the applicant therefore meets cl.186.222 as a whole.

17. The Tribunal has read the previous Tribunal decision referred to by the applicant’s agent (1606923 of 20 July 2017) which also deals with cl.186.222(b) but considered it had limited utility in this case, as it deals with the South African educational system and involved an applicant who was a native English speaker.

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

    DECISION

19. 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.