George Vadakkedath (Migration)

[2019] AATA 2136

George Vadakkedath (Migration) [2019] AATA 2136 (15 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Samuel George Vadakkedath
Mrs Bina Mary Valakuzhy

CASE NUMBER:  1709143

HOME AFFAIRS REFERENCE(S):           BCC2016/2500815

MEMBER:Alison Mercer

DATE:15 April 2019

PLACE OF DECISION:  Melbourne

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 15 April 2019 at 10:51am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visas – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – vocational English – specified language test in the three years preceding the visa application – 5 years full time study conducted in English – higher education institution – secondary schooling in India – decision under review remitted        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.222, rr 1.03, 1.15
National Vocational Education and Training Regulator Act 2011
Tertiary Education Quality and Standards Agency Act 2011, s 5

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 and Border Protection on 10 April 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 28 July 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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Chef.

5. The delegate refused to grant the visas because she found that the applicant did not meet cl.186.222 of Schedule 2 to the Regulations, which required that, at the time of the visa application, the applicant had vocational English (as defined in r.1.15B of the Regulations) or had demonstrated that he was exempt from having to do so. The delegate noted that the applicant had not undertaken one of the specified English tests required to demonstrate that he had vocational English. Although the applicant claimed that he was exempt from having to demonstrate vocational English because he had completed at least 5 years of full time study at secondary or higher education level where all the tuition was conducted in English, the delegate did not accept this. She found that the Certificate III Hospitality (Patisserie) course that the applicant had completed in Australia was at the vocational educational level, not secondary or higher education. Moreover, the Bachelor of Science (Hospitality and Hotel Administration) undertaken by the applicant in India had been undertaken by distance education and it was unclear whether it involved full-time study or was taught entirely in English. The delegate also refused to grant the second named applicant (the applicant’s wife) a subclass 186 visa on the basis that she did not satisfy the secondary visa criteria to be a member of the family unit of a person who held a subclass 186 visa, nor was there any evidence to indicate that she met the primary visa criteria in her own right.

6. The Tribunal received a review application from the applicants on 26 April 2017. It was accompanied by a copy of the delegate’s decision and a submission from the applicant in which he made the following points (in summary):

   ·he had lived in Australia since 2008 and had been studying and working here since then.  He was fluent in English and had undertaken and passed the International English Language Testing System (IELTS) test multiple times;

   ·however, he understood that the Department required either an IELTS test undertaken in the 3 years immediately before the visa application was made or proof that he had studied full time in English for at least 5 years. Therefore, he now provided a transcript from his school(s) in India certifying that he undertook 12 years of schooling there which was taught in English; and

   ·he had also booked another IELTS test on 29 April 2017, the results of which would be available about a week later, which could be provided if needed.

7. The applicant provided a letter dated 18 April 2017 from the Vice Principal of Bhavan’s Adarsha, Vidyalaya, Kochi, certifying that the applicant was a bona fide student of this school from 1990 to 2002 and that the medium of instruction was English.

8. Subsequently, the applicant provided a copy of an IELTS test report form issued to him on 11 May 2017 showing that he obtained an overall band score of 7.0 for a test he undertook on 29 April 2017, with scores of 7.0 for listening, 7.0 for reading, 6.0 for writing and 8.0 for speaking.

9. The matter was constituted to a Tribunal Member on 18 December 2018.  On 18 February 2019, the Tribunal wrote to the applicants to invite them to attend a hearing on 12 April 2019.

10. On 26 and 28 March 2019, the applicants provided a number of documents to the Tribunal in support of their case, including:

    ·a letter from the applicant’s wife setting out the history of the visa application;

    ·numerous reference letters from friends, neighbours, colleagues, employers and former employers of the applicants in Australia, strongly attesting to the character, skill and English proficiency of the applicant and his wife;

    ·copy of testamur from Indira Gandhi National Open University for the applicant’s completion of a Bachelor of Science (Hospitality and Hotel Administration), First Division, 11 September 2006;

    ·IELTS test report form for the applicant issued 11 May 2017 indicating that he obtained an overall band score of 7.0 (with individual scores of 7 for listening, 7 for reading, 6 for writing and 8 for speaking) in a test he undertook on 29 April 2017;

    ·IELTS test report form for the applicant issued 8 April 2010 indicating that he obtained an overall band score of 7.0 (with individual scores of 7 for listening, 6.5 for reading, 8 for writing and 7 for speaking) in a test he undertook on 27 March 2010;

    ·letters of completion for the applicant’s Certificates III and IV in Patisserie and Hospitality and his Diploma of Hospitality, undertaken at NMIT between July 2008 and June 2010, for which the medium of instruction was English;

    ·secondary education certificate showing that the applicant undertook the All India Secondary School examination in 2000 at Bhavan’s Adarsha, Vidyalaya.

11. The applicants appeared before the Tribunal on 12 April 2019 to give evidence and present arguments.

12. The applicants told the Tribunal that they were aware of the English language proficiency requirement but did not realise exactly how stringent it was. They assumed the Department had records of the applicant’s previous IELTS tests, in which he had obtained scores of over 6 for all the test components for each test he sat.  They also provided the applicant’s Indian and Australian educational certificates to the Department as proof that he had undertaken more than 5 years of secondary and higher education taught in English, but the Department did not accept these. However, rather than seeking clarification of these qualifications, the Department delegate simply refused the visas, which was a shock to the applicants.  In response to the Tribunal’s query, the applicant clarified that his Indian Bachelor of Science (Hospitality and Hotel Management) at the Indira Gandhi National Open University was a 3 year full time residential course, which was taught in English and which he attended in person. He further confirmed that his primary and secondary schooling (12 years in total, 6 in primary and 6 in secondary) was undertaken at a well known school group, , Bhavan’s Adarsha Vidyalaya, which had schools in most states in India. He provided his secondary education certificate from this school to the Department but it appears that it was not accepted as it did not specify that the medium of instruction was English. However, after his visa was refused, his parents in India went to the school to obtain the letter that he had now provided to the Tribunal, which specifies that the medium of instruction at the school was English.

13. The Tribunal discussed with the applicants the fact that it took a different view to the Department regarding the Certificate III undertaken by the applicant in Australia. It noted that the Department’s policy was to exclude such vocational courses (including the Certificate IV and Diploma in Hospitality) from being able to satisfy the English proficiency requirements. However, in the Tribunal’s view, this went beyond the wording of the actual instrument setting out the exemption categories and the relevant factor to consider was whether the course was provided by a registered Australian higher education provider.  It noted that its research indicated that NMIT, the education provider for the applicant’s Certificate III, IV and Diploma, was a registered higher education provider, so in these courses could be counted. However, as they amounted to approximately 2 years of fulltime study, the applicant had to show that he had undertaken additional secondary and/or higher education for which the medium instruction was English to meet the ‘at least 5 years’ requirement. It noted that it appeared that, with the additional evidence provided to the Tribunal, the applicant would be able to count his secondary schooling in India and his Bachelor of Science degree.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant meets cl.186.222.

    English language proficiency

16. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have a defined level of English language proficiency, or be in a class of persons specified in legislative instrument IMMI 17/058: cl.186.222. For visa applications made before 1 July 2017, the level required is vocational English, and for visa applications made on or after 1 July 2017, the level required is competent English.

17. ‘Vocational English’ is defined in r.1.15B and ‘competent English’ is defined in r.1.15C of the Regulations. For both levels, a person will meet the definition if he or she either:

    ·undertook a specified language test in the three years preceding the visa application and achieved a specified score; or

    ·holds a specified passport.

    In this instance, having regard to the date of visa application, the required level is vocational English. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.  Item 5 specifies that for visa applications lodged on or after 1 January 2015, ‘vocational English’ requires the applicant to hold a specified passport validly issued by the United Kingdom, United States of America, Canada, New Zealand or the Republic of Ireland, or to have obtained specified scores in an IELTS test or in one of 4 other specified English tests.  For an IELTS test, the applicant must have obtained a score of at least 5 in each of the 4 test components.

18. It is not disputed that the applicant does not hold a specified passport (he is an Indian national). Therefore, he must demonstrate that he has vocational English by means of having undertaken a specified English test within a specified period, in which he obtained the specified scores, or he must demonstrate that he falls within the defined category of persons who are exempt from having to show this (cl.186.222(b)).

19. The applicant undertook an IELTS test on 29 April 2017 in which he obtained the specified scores set out in IMMI 15/005. However, the Tribunal finds that this was not undertaken in the 3 year period ending immediately before the date on which the visa application was made, which is required by r.1.15B(1)(bb). The Tribunal therefore finds that the applicant cannot satisfy cl.186.222(a).

20. Clause 186.222(b) provides that a person is exempt from having to demonstrate competent English as per cl.186.222(a) if he or she falls within an exemption category specified in IMMI 17/058. This instrument provides the following exemption:

    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.

21. Based on the oral and documentary evidence provided to the Tribunal by the applicant, the Tribunal is satisfied that he has completed the following study:

    ·Certificate III in Hospitality (Patisserie), Certificate IV (Hospitality) and Diploma of Hospitality at North Melbourne Institute of TAFE between 9 July 2008 and 30 June 2010 (approximately 24 months);

    ·Bachelor of Science (Hotel Management) at Indian Institute of Hospitality Management, between July 2003 and July 2006 (approximately 36 months); and

    ·primary and secondary schooling at Bhavan’s Adarsha, Vidyalaya, Kochi, India, from 1990 to 2002 (12 years).

    Australian study

22. The Tribunal accepts that the applicant’s Certificate III, IV and Diploma were undertaken full time, and in English. However, under Department policy – as set out in its Procedures Advice Manual (PAM3) at section 6.10.2.2 of Subclass 186 (as at the time of the applicant’s visa application), [h]igher 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 courses undertaken for the specific purpose of obtaining an IELTS or equivalent score… 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.’

23. The applicant’s Australian qualifications are vocational level, rather than University/tertiary qualifications, given that his education provider was the North Melbourne Institute of Technology and this is clearly not a university. This raises the issue of how ‘a higher education institution’ is defined, given that Departmental policy is not legally binding on the Tribunal, but nevertheless should generally be followed for reasons of consistency, where it is not in conflict with the underlying legislative provision(s).

24. There is no legal definition in the Act or Regulations for a ‘higher education institution.’  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.   

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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.

32. 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). 

1. 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. 

2. 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.

3. Accordingly, for the purposes of the exemption category set out for cl.186.222(b) in IMMI 17/058, 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.

4. 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.

5. 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.

6. The Tribunal has reviewed the TESQA National Register of higher education institutions and finds that Melbourne Polytechnic (formerly North Melbourne Institute of TAFE) is registered ( The Tribunal therefore finds that NMIT is a higher education institution and the courses that the applicant undertook there can be counted when assessing him against clause 12 of IMMI 17/058 for the purposes of cl.186.222(b).

7. However, those courses were approximately 24 months in duration in total, which falls short of the 5 years required by IMMI 17/058.  Accordingly, the Tribunal turns to consider the applicant’s Indian study.

   Applicant’s Indian study

8. The Tribunal found the applicants to be credible witnesses at the hearing, and it therefore accepts that the applicant’s Indian Bachelor of Science (Hospitality and Hotel Management) was a full time, 3 year, higher education degree for which the medium of instruction was English, and which he undertook in person. It can therefore be counted for the purposes of IMMI 15/005. However, when combined with the applicant’s Certificate III, the total years of study is approximately 4 years, not the 5 required to meet the exemption in IMMI 17/058.

9. Accordingly, the Tribunal turns to consider the applicant’s secondary schooling in India.

10. The information supplied by the applicant indicated that he undertook his primary and secondary schooling in India between 1990 and 2002 at the Bhavan’s Adarsha, Vidyalaya, Kochi, for which the medium of instruction was English.  A review of the Department’s file indicates that the applicant provided his secondary education certificate showing that he undertook the All India Secondary School examination in 2000 at Bhavan’s Adarsha, Vidyalaya, to the Department with his visa application.  However, as the applicant acknowledged in the hearing, the certificate does not conclusively state that the medium of instruction at this school was English, nor does it indicate for how long he attended the school. That information has now been provided in the form of a letter issued by the school on 18 April 2017. The Tribunal is satisfied that the letter is genuine, and that its contents are consistent with publically available information about Bhavan’s Adarsha, Vidyalaya using English as its medium of instruction (see Wikipedia entry: Having reviewed the Australian Department of Education and Training’s Country Education Profile (CEP) on India, the Tribunal is satisfied that many schools in India use English as the medium of instruction, and that secondary schooling there is generally 6 years. 

11. Accordingly, the Tribunal is satisfied from the documentary evidence provided that the school attended by the applicant in India is a registered secondary education institution, and that the medium of instruction was English. It is further satisfied that the applicant studied at that school between 1990 and 2002, 6 years of which was secondary education.

12. The Tribunal is satisfied that this constitutes 5 years of full time secondary study in India at a secondary education institution, in which the medium of instruction was English.

13. The Tribunal finds that the applicant therefore falls within the exemption in IMMI 17/058 as he has 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.

14. Therefore, cl.186.222(b) is met, and the applicant meets cl.186.222 as a whole.

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

16. As the second named applicant has applied on the basis of being a member of the family unit of the first named applicant, her application will be determined by reference to the outcome of the first applicant’s application upon remittal to the Department for reconsideration.

    DECISION

17. 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.

    Alison Mercer
    Member