Hu (Migration)

[2023] AATA 658

Hu (Migration) [2023] AATA 658 (16 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Qiang Hu

REPRESENTATIVE:  Mr Yang Lan (MARN: 1279049)

CASE NUMBER:  2001593

HOME AFFAIRS REFERENCE(S):          BCC2019/2730808

MEMBER:De-Anne Kelly

DATE:16 March 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 16 March 2023 at 1:20pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – motor mechanic – English language proficiency – competent English – specified language test not undertaken – exemption for completing five years of higher education with all tuition delivered in English – diploma and advanced diploma courses – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), r 1.15C, 186.222

CASE
MIAC v Li [2013] HCA

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 14 January 2020 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 27 May 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 applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Motor Mechanic.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because at the time of application the applicant had not demonstrated that he had competent English or was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

6. The applicants appeared before the Tribunal on 23 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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.

   Procedural Matters

9. The applicant was invited to a hearing 23 November 2023 and requested a postponement on the basis that they were undertaking an English test on 26 November 2022 with the results expected by 12 December 2022.

10. In the request for a postponement of the hearing the Tribunal is guided by Minister for Immigration and Citizenship v Li [2013] HCA where the Court held that an adjournment was warranted on the basis that there was a single material piece of evidence that was pivotal to the final decision however this is not the case here where the applicant has requested adjournment for an English test after the time of application being the 27 May 2019. This criterion is time of application, and the Tribunal cannot consider English tests undertaken after the time of application and as such the request for a postponement was declined since the additional evidence sought to be provided is not material to a decision.

11. There was no impediment to the application submitting further documents up to the time of decision however it was noted that no further documents were submitted following the hearing.

12. A brief Adjournment was requested and granted during the hearing.

13. The applicant confirmed during the hearing that the interpretation was clear and could be understood and his responses were in context as a further indication that the interpretation was clear.

    Section 359AA of the Act

14. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Migration Act 1958 (Cth) (the Act), that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent and they could respond in the hearing. Under s.360 of the Act the Tribunal must invite the applicant to a hearing to give evidence and present arguments relating to issues arising in relation to the review and this affords the applicant the opportunity to canvas information before the Tribunal.

15. Section 359AA provides as follows:

    (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)   if the Tribunal does so—the Tribunal must:

    (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

    (ii) orally invite the applicant to comment on or respond to the information; and

    (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

    (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant satisfies cl.186.222 which provides as follows.

    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

17. 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.

18. 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.

19. ‘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.

20. 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.

21. 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.

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

23. 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.

24. 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.

25. 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.

26. 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 legislated 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 are defined under the AQF. 

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 China which is not a passport specified in the instrument.

   Applicant qualifications and IMMI 18/045

4. The applicant provided the following qualifications at the listed educational institutions which he is relying upon to satisfy IMMI 18/045.

Course	Study Period	Years
Diploma of Management	Melb Inst. Commerce	1 Nov 2011 - 8 Aug 2012	1.00
Advanced Diploma Management	Melb Inst. Commerce	1 Jul 2012 - 1 Apr 2013	1.00
Cert III Auto Mech Tech	Austwide Inst.	10 Aug 2009 - 8 Aug 2010	1.00
Cert IV Auto Mech Diagnosis	Acumen Inst.	9 Dec 2015 - 13 Jun 2016
Diploma Auto Management	Austwide Inst.	9 Aug 2010 - 27 Sep 2011	1.00
Senior	29 Jan 2008 - 1 July 2009	1.50
Total	5.50

1. The Tribunal has accepted the Certificate III in Auto Mechanical Technology since it clearly led to and was a pre-requisite for the Diploma of Automotive Management at the same education provider.

2. Excluding the Certificate IV course which is not a higher education award on the AQF levels 5 to 10 and therefore would not comply with the AQF definition of study delivered by a higher education institution the applicant has completed minimum of five and half years of full-time study in a secondary or higher education institution where all tuition was delivered in English.

3. Accordingly, the applicant satisfies IMMI18/045 and therefore, cl 186.222 is met.

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

   DECISION

5. 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