Haarhoff (Migration)

[2017] AATA 1254

Haarhoff (Migration) [2017] AATA 1254 (20 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Paul Andrew Haarhoff
Mrs Glynnis Haarhoff
Master Connor Todd Haarhoff
Miss Kiera Anne Haarhoff

CASE NUMBER:  1606923

DIBP REFERENCE(S):  BCC2015/2414250

MEMBER:Kate Millar

DATE:20 July 2017

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications 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 20 July 2017 at 1:01pm

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – English language proficiency – Temporary Residence Transition stream – Production Manager –IELTS test not undertaken in the 3 years immediately before the visa application – English is first language

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 12, cl 186.222, cl 186.311, r 1.15B, IMMI15/083, IMMI 17/058

CASES

Berengual v Minister for Immigration and Citizenship (2010) 264 ALR 417

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Haarhoff works for Go 4 Solar as a production manager.  On 20 August 2015, Mr Haarhoff and his family applied Employer Nomination (Permanent) (Class EN) visas.  Their applications were refused as a delegate of the Minister was not satisfied that Mr Haarhoff met the requirements to have vocational English or to be in a one of the classes of people specified by the Minister for Immigration and Border Protection.

2. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 26 April 2016 to refuse to grant the under s.65 of the Migration Act 1958 (the Act).

3. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

4. 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.

5. 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 Production Manager. 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.

6. The delegate refused to grant the visas because the applicant did not meet cl.186.222 of Schedule 2 to the Regulations because the delegate was not satisfied that Mr Haarhoff met the requirement to either have vocational English or to be in a class of people specified by the Minister. As Mr Haarhoff did not meet the primary criteria for the grant of the visa, the remaining applicants did not meet the requirements in cl.186.311 that they are members of the family unit of a person who satisfies the primary criteria.

7. The applicants appeared before the Tribunal on 6 June 2017 to give evidence and present arguments, and were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether, at the time the visa application was made, Mr Haarhoff had competent English.

   English language proficiency

10. 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 IMMI15/083: cl.186.222.

    Does Mr Haarhoff have vocational English?

11. ‘Vocational English’ is defined in r.1.15B of the Regulations. A person will have vocational English if (as it applies to Mr Haarhoff):

    (a)the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

    (b)      the person is an applicant for a visa; and

    …

    (bb)    …   the test was conducted in the 3 years immediately before the day on which the application was made; and

    (c)       the person achieved a score specified in the instrument. 

12. He has supplied an English language test dated 11 May 2017 to the tribunal, and this test result meets the scores required by IMMI 15/083. As a result he meets r.1.15B(a), (b) and (c). However r.1.15B(bb) requires the test to have been conducted in the 3 years immediately before the day on which the application was made.

13. Mr Haarhoff seeks to rely on Berengual v Minister for Immigration and Citizenship (2010) 264 ALR 417 in which the High Court stated the purpose of a previous definition of competent English was to ensure that the applicant for the visa has a demonstrated competency in the English language. The requirement at that time was that an English language test was conducted “not more than 2 years before the day on which the application was lodged”. The Court held that this was to be construed as requiring that the English language test was conducted no earlier than 2 years before the application was lodged, and did not require the test to be conducted before the application was lodged. The Court discussed that this requirement appeared under the heading of “Criteria to be satisfied at time of Application”

14. The wording of this test was amended by the Migration Amendment (2015 Measures No. 1) Regulation 2015 (SLI 34/2015), after the High Court decision in Berengual.  The Explanatory Statement for the Regulations provides an explanation for changing the test requirements in relation to a different subclass of visa, but does not provide any further detail on whether it was intended to change to time at which the test was to be undertaken. 

15. The rationale for the decision in Berengual was that “not more than 2 years before” did not limit the end point for undertaking the test in light of the objective that the applicant had adequate English language skills at the time a decision is made about the visa. The definition of vocational English in r.1.15B is now more specific, stating that the test must be conducted “in the 3 years immediately before the day on which the application was made.” The definition of vocational English now specifies an end point for the time in which the test must be undertaken, unlike the definition at the time Berengual was decided.

16. The requirement that the person had vocational English at the time of application is also now contained within cl.186.222 which requires that at the time of the application the application has vocational English. It uses the past tense, which indicates this is the point at time at which the person must meet the requirement to have vocational English. The Regulation under consideration in Berengual did not have the time of application requirement included in the clause, it appeared as a heading. 

17. Given these changes to the Regulations, the reasoning in Berengual does not apply, and Mr Haarhoff must have undertaken the IELTS test in the 3 years immediately before the visa application. He did not undertake a test within this time, and therefore does not meet r.1.15B(bb). It follows that he does not have vocational English as defined by the r.1.15B(1).

18. Regulation 1.15B(2) states a person will have vocational English if he or she holds a passport specified by the Minister. IMMI15/005 specified passports issued by the United Kingdom, The United States of America, Canada, New Zealand or the Republic of Ireland. Mr Haarhoff holds a South African passport, which is not a passport specified in IMMI 15/005 and he does not meet r.1.15B(2).

    Is Mr Haarhoff within the class of people specified by the Minister?

19. Clause 186.222(b) states that a person will meet this clause if he or she is in a class of person specified by the Minister. The class of person specified in IMMI 17/058 includes at cl.12 persons who have completed at least five years full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English.

20. Mr Haarhoff has provided a letter from George Campbell School of Technology which states he attended the school from 15 January 1991 until he passed grade 11 on 18 December 1994.  The letter states the medium of instruction was English.    This does not meet the requirement to have completed at least five years of full-time study in a secondary and/or higher education institution.  It does show he had four years of full time study in a secondary education institution.

21. Mr Haarhoff provide various primary school reports and certificates as well as letters from the school stating the schools he attended were English language school in which the teaching is conducted in English.   

22. Mr Haarhoff has a certificate in Machine Setting (Basic Injection Moulding) from the Plastics Federation of South Africa of February 1995, a certificate in Advanced Injection Moulding of October 1999 and a certificate in Quality Awareness at Supervisory Level issued March 2004.  He described at hearing how this was a “3 months on, 3 months off” system where he studied full time for a period of three months and then worked for three months.  He said he had to do tests to apply the knowledge.  He does not have an academic record for these certificates as this was not supplied by the Plastics Federation. 

23. Mr Haarhoff said the Certificate in Machine Setting involved learning the machinery and how to set up the machinery.  The course ran from 8am to 4pm five days a week for a period of three months.

24. The Certificate in Advanced Injection Moulding required him to pass specified modules and involved a total of 9 months of full time study over 18 months, with three months of study followed by period of working.  The Certificate in Quality Awareness involved three months of study.

25. These qualifications lead to the question of the meaning of higher education institution.  In some contexts this means university education leading to a degree or diploma at an undergraduate level.  In other contexts it includes the vocational education and training sector. 

26. On being asked what would show me the Plastics Board was a higher education institution, Mr Haarhoff said it provided skills to further his job and was after his secondary education.  He said it was like TAFE conditions as he had to go to the facility and register to do the courses.  He was asked to provide further information to show that the courses he had undertaken were at a higher education instruction and was conducted in English.

27. Mr Haarhoff provided a letter from the training administrator at Plastics SA.  This letter states Plastics SA is the successor to the Plastics Federation of South Africa.  It confirms Mr Haarhoff was found to be competent in Basics Injection Moulding, Advanced Injections Moulding and Quality Awareness for Supervisors.  Plastics SA is accredited through the Manufacturing, Engineering and related services Sectorial Educational Training Authority (MERSETA).  A copy of the Certificate of Accreditation for Plastics SA was provided

28. The Plastics SA website at lists a series of training courses which are accredited through the National Qualifications Framework in South Africa.   

29. The South African  National Qualifications Framework (NQF) ( sets out descriptors for each level of achievement.  It is divided into general and further education and training, higher education and occupational qualifications.   The overall National Qualifications Framework indicates that the certificates held by Mr Haarhoff fall within the occupational certificate range.

30. The term “higher education institution” is not defined in the Act or Regulations, the Australian Government website australia.gov.au lists TAFE and Registered Training Organisations as part of the higher education system.  However the Higher Education Loans Scheme Act and VET Student Loans Act 2016 (together with the VET Student Loans (Courses and Loan Caps) Determination 2016 both require a person to be undertaking a diploma level course or above.  Nothing in either of these Acts refers to Certificate level education under the Australian Qualifications Framework as equivalent to higher education. 

31. The Australian Qualification Framework (AQF) (at is the national policy for regulated qualifications in Australia.  The AQF distinguishes between higher education, vocational education and training and school, and refers to each of these as distinct education and training sectors.  This provides separate accrediting authorities for vocational education and training to higher education (p.21).  This supports the interpretation that higher education is separate to vocational education and training. 

32. The Department’s Procedures Advice Manual states at 8.12.2 that full time study at a higher education institution is understood to mean tertiary studies at university or equivalent level, and that vocational education and training courses are not acceptable, nor are English language courses undertaken for the purpose of achieving an IELTS score.

33. While the policy contained in the Department Procedures Advice Manual and the information in the AQF and NQF support that education at a higher education institution means education at a diploma level or higher, this must be considered in the context of the aim of r.186.222 and IMMI 17/058.   As discussed in a different context by the High Court in Berengual, this is to ensure people have an adequate level of English to be granted the visa.

34. The circumstances of this particular case are that Mr Haarhoff’s first language is English.  He has completed his primary education in English and four years of secondary education in English. Occupational certificates obtained after his secondary education were completed in English and involved a total of a further 15 months of full time study, with intervening periods of employment.  He has an IELTS test which shows he has the required level of English.  While his IELTS test was obtained after the time it was required to have been provided, I am satisfied that it shows his level of English language skill at the time he applied for the visa. 

35. In the particular factual matrix of this case, I find that Mr Haarhoff meets the requirement in cl.12 of IMMI 17/058. As a result I find he meets the requirements of cl.186.222.

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

37. If Mr Haarhoff is found to meet the remaining primary criteria for the visa, the remaining visa applicants may be found to meet the secondary criteria, and the visa applications of the secondary visa applicants are also remitted for reconsideration.  

    DECISION

38. The Tribunal remits the applications 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.

    Kate Millar
    Member