HETTIGE (Migration)

[2023] AATA 217

HETTIGE (Migration) [2023] AATA 217 (25 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ishara Nadeeka HETTIGE
Mr Prabath Lakmal Amarathunga ANNAKKARAGE
Ms Tashini Sithumsa ANNAKKARAGE

REPRESENTATIVE:  Mr Steven O'Neil (MARN: 9687267)

CASE NUMBER:  2001440

HOME AFFAIRS REFERENCE(S):          BCC2019/2314124

MEMBER:De-Anne Kelly

DATE:25 January 2023

PLACE OF DECISION:  Brisbane

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 25 January 2023 at 1:41pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – café or restaurant manager – English language proficiency – specified test not undertaken in 3 years before visa application made – exemption for five years of full-time secondary or higher education in English – advanced diploma and two degrees in Australia – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15C, Schedule 2, cls 186.222(b), 186.311

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 Home Affairs on 9 January 2020 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 29 April 2019. 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 (Cth) (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 the Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because the applicant did not provide an English language test result at the prescribed level of attainment, did not have a passport from a specified country and did not satisfy the exemption of five years study full time in a secondary and /or higher education institution where the medium of instruction was English.

6. The applicants appeared before the Tribunal on 22 November 2022 to give evidence and present arguments.

7. The applicants 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 the applicant satisfies cl186.222 which provides as follows.

   186.222
   At the time of application, the applicant:
   (a) had competent English; or
   (b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

   English language proficiency

10. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have competent English or be in a class of persons specified in legislative instrument IMMI 18/045.

11. 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.

12. ‘Vocational English’ is defined in reg 1.15B and ‘competent English’ is defined in reg 1.15C of the Regulations. In this instance, having regard to the date of visa application, the required level is competent English. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.

13. 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.

14. In the hearing it was established that the applicant had not undertaken a specified English Language test in the three years preceding the visa application and achieved the specified score. The applicant holds a passport from Sri Lanka which is not a passport specified in the instrument.

15. The applicant is seeking to satisfy IMMI 18/045 which provides exemptions to the ‘vocational English’ or ‘competent English’ requirement for applicants for a Subclass 186 visa or Subclass 187 visa, as below.

    For the purposes of paragraphs 186.222(b) and 187.222(b) of Schedule 2 to the Regulations, persons who, at the date of application for a Subclass 186 visa or a Subclass 187 visa, have completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English, are specified.

16. The Tribunal will now rely upon the relevant legislation to determine the intent of IMMI 18/045.

17. It is noted that the Oxford English Dictionary Online defines institution and provider as follows,

    “Institution” - The action of instituting or establishing; setting on foot or in operation; foundation; ordainment; the fact of being instituted

    “Provider” - A person who or thing which provides or supplies something.

18. It seems that an institution is instituted and “in operation” in this case for higher education and could reasonably be said to be a providing or supplying higher education as a provider.

19. The Departmental policy refers to the TEQSA Act but Departmental policy is generally not considered a good guide to legislative intention e.g. Moller, at [14], particularly where the policy guidelines are made after the relevant statute (cl. 186.222  inserted 1/7/12, TEQSA Act commenced 29/6/11). There is a discussion paper, “Review of the Permanent Employer Sponsored Visa Categories Discussion Paper”  dated August 2011, which refers to the Australian Qualifications Framework AQF as utilised in the assessment of criteria for these visas.

20. The TESQA website has tabled the AQF higher education award categories as below.

AQF level	Qualification	Degree level	Regulatory responsibility
10	Higher Doctoral Degree	Postgraduate	TEQSA
10	Doctoral Degree	Postgraduate	TEQSA
9	Masters Degree (Research)	Postgraduate	TEQSA
9	Masters Degree (Coursework)	Postgraduate	TEQSA
9	Masters Degree (Extended)	Postgraduate	TEQSA
8	Graduate Diploma	Postgraduate	TEQSA
8	Graduate Certificate	Postgraduate	TEQSA
8	Bachelor Honours Degree	Undergraduate	TEQSA
7	Bachelor Degree	Undergraduate	TEQSA
6	Associate Degree	Undergraduate	TEQSA/ASQA
6	Advanced Diploma	Undergraduate	TEQSA/ASQA
5	Diploma	Undergraduate	TEQSA/ASQA

IMMI 18/045

1. Education is a joint state and federal government responsibility with the Federal Minister for Education overseeing the higher education sector through the Tertiary Education Quality and Standards Agency TESQA Act 2011 which established TESQA the Tertiary Education Quality and Standards Agency as an independent quality assurance and regulatory agency for the higher education sector. Likewise, the Federal Minister has similar oversight of the Vocational Education sector through the Australian Skills Quality Authority ASQA which is governed by the National Vocational Education and Training Regulator Act 2011.

2. The Tribunal considers that an education institution registered under TESQA and ASQA would not meet the legislat3ed definition of a higher education institution if it were delivering Certificate 1 to IV qualifications because despite it being on the TESQA national register it would fail to meet the definition of a higher education provider awarding AQF level 5 to 10 qualifications which were accredited and regulated by TESQA. 

3. In the hearing it was established that the applicant had not undertaken a specified English Language test in the three years preceding the visa application and achieved the specified score. The applicant holds a passport from Sri Lanka which is not a passport specified in the instrument.

4. The applicant submits that the exemption applies, and the following evidence was provided.

   ·Advanced Diploma of Hospitality Mgt – Perth Institute now Edith Cowan College – 2 years

   ·Bachelor of Hospitality Mgt  - Edith Cowan University – 2 years.

   ·Bachelor of Business Administration – Edith Cowan – 4 years

25.   This comprises a completed minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English.

1. Therefore, cl 186.222 is met.

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

3. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

4. Mr Prabath Lakmal Amarathunga ANNAKKARAGE and Ms Tashini Sithumsa ANNAKKARAGE were secondary applicants on the application for Employer Nomination (Permanent) (Class EN) visas (Subclass 186) and sought to satisfy cl.186.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.186.311. This clause provides as below. The secondary applicants lodged an application with the Tribunal to review the decision to refuse the Visa application.

   186.311
   The applicant:
   (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

   (b) made a combined application with the primary applicant.

5. Because the primary visa applicant’s Subclass 186 visa application was refused, the secondary visa applicants were members of the family unit of a person who did not hold a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

6. The Tribunal considered the appropriate course was to remit the primary visa applicant’s visa application to the Minister to reconsider the remaining criteria for the visa. The Tribunal considers it is the appropriate course to remit the secondary applicants visa application to the Minister.

   DECISION

7. 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.

   De-Anne Kelly
   Member