Hasitawet (Migration)

[2022] AATA 2563

Hasitawet (Migration) [2022] AATA 2563 (7 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Pariya Hasitawet
Mr Nitis Shombunsode

CASE NUMBER:  1935040

HOME AFFAIRS REFERENCE(S):          BCC2019/2554628

MEMBER:Sheridan Lee

DATE AND TIME OF

ORAL DECISION AND REASONS:        7 April 2022 at 11:07 pm (VIC time)

DATE OF WRITTEN RECORD:                28 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review

Statement made on 28 April 2022 at 9:15am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – café or restaurant manager – competent English language proficiency – 5 years of full-time study at higher education institution where all tuition delivered in English – certificate and diploma courses – distinction between post-secondary and higher education – accreditation of institutions and courses – only one institution attended by applicant an accredited higher education institution – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15C

APPLICATION FOR REVIEW

1.    This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 28 November 2019 to refuse to grant the visa applicants Employer Nomination (Permanent) Subclass 186 visas under the Migration Act 1958 (Cth) (the Act).

2.    At the hearing on 7 April 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

3.    On 15 May 2019, Ms Hasitawet and her husband applied to the Department of Home Affairs for employee nomination permanent class EN visas.

4. The criteria for a grant of a subclass 186 visa are set out in part 186 of schedule 2 to the Migration Regulations 1994. The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. In the present case Ms Hasitawet is seeking a visa in the temporary residence transition stream to work in the occupation of café or restaurant manager.

5.    At the time the visa application was made, Ms Hasitawet must have had either a defined level of English proficiency or be in a class of persons specified in the relevant legislative instrument. For visa applications made on or after 1 July 2017, the level required is competent English. Competent English is defined in Regulation 1.15(c). A person will meet the definition if they either undertook a language test in the three years before the application and achieved a specified score or hold a specified passport.

6.    Ms Hasitawet sought an exemption from the English language requirement on the basis that she had completed at least five years of full-time study at a higher education institution where all the tuition was delivered in English. She confirmed in a hearing today that she did not sit a language test in the three years preceding the visa application.

7.    Ms Hasitawet holds a passport issued by Thailand, and as discussed with her today, this is not one of the specified passports. On 3 April 2022 Ms Hasitawet provided a range of documents to the tribunal, including a table outlining her previous study. I accept that all of the study was undertaken in Australia, and the totality of time spent studying was in excess of seven years.

8.    Ms Hasitawet completed a range of Diplomas, an Advanced Diploma, and a Certificate IV. While each of these qualifications might be considered tertiary or post-secondary education awards, the question is whether they were completed at a higher education institution. As discussed with the applicant during today’s hearing, the Tertiary Education Quality and Standards Agency is responsible for the regulation of Australia’s higher education sector. This includes the registration of higher education providers, and accreditation of higher education courses under the TEQSA Act.

9.    I accept that a higher education institution is not necessarily limited to only a university. The higher education system can include non-university higher education providers. However, 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.

1. TEQSA and the Department of Education and Training maintain lists of higher education institutions. So, having reviewed the training providers on the list which the applicant provided to the tribunal, I can see that only the Kent Institute is registered with TEQSA as a higher education provider. The remaining providers are registered with the Australian Skills Quality Authority. That is the body responsible for regulation of vocational education. For that reason, only three years of the study undertaken by the applicant was undertaken at a higher education institution. Can I just correct myself there, two years.

2. So as the applicant has not completed the necessary high school or study at a higher education institution in English, I must find that she does not satisfy the requirements of clause 186.222(b). As previously outlined, the applicant has not sought to meet the requirements of clause 186.222 on any other ground.

3. As the applicant does not satisfy the primary criteria, I must find that the second-named applicant does not satisfy the secondary criteria as required by clause 186.311.

4. The tribunal affirms the decision not to grant the applicant’s employer nomination permanent class EN visas.

DECISION

1. The Tribunal affirms the decisions under review.

Sheridan Lee

Member