Joshi (Migration)

[2018] AATA 591

Joshi (Migration) [2018] AATA 591 (10 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sameer Nath Joshi
Mrs Shailu Joshi
Master Ian Joshi

CASE NUMBER:  1712299

DIBP REFERENCE(S):  BCC2016/2831441

MEMBER:Danica Buljan

DATE:10 January 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for the 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:

• Clause 186.222 of Schedule 2 to the Regulations.

Statement made on 10 January 2018 at 2:29pm

CATCHWORDS
Migration – Employer Nomination (Permanent)(Class EN) visa – Subclass 186 (Employer Nomination Scheme) – No ‘vocational English’ for IELTS tests – Class of specified persons - Completed six years study in overseas secondary education institutions - All tuition delivered in English

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.2, cl 186.21, cl 186.22, cl 186.222, cl 186.222(a), cl 186.222(b), rr 1.15B, 5.B(i), 1.15B(1), 1.15B(1)(a) and (c), 1.15B(1)(bb), 1.15B(1)(c), 1.15B(2),1.15C, 1.15D, 1.15EA, IMMI 15/005, IMMI 15/083, IMMI 17/058

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 on 19 May 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied to the Department of Immigration for the visas on 26 August 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 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 ‘Motor Mechanic (General)’ (ANZSCO[1] Code 321211). 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.

   [1]     ANZSCO: Australian and New Zealand Standard Classification of Occupations, 26 June 2013

5. The delegate refused to grant the visas because the applicant did not meet clause 186.222 of Schedule 2 to the Regulations. This was on the basis that the applicant had not demonstrated that, at the time of application, he had ‘vocational English’ or that he was a person who was exempt from this requirement under the legislation.

   6.    The applicants lodged an application for review with the Tribunal on 9 June 2017, and a copy of the primary decision was included with the application for review.[2]  The applicants were represented in relation to the review by their registered migration agent.

   [2]     AAT Case file 1712299 (T1), f.1-7

6. The Tribunal has before it the departmental file[3] relating to the applicants. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[4]

   [3]     D1 - Departmental file, BCC2016/2831441  folio numbered 1-215

   [4]     AAT Case file 1712299, folio numbered 1-129

7. Although the applicants appeared before the Tribunal on 16 October 2017 to give evidence and present arguments, only the applicant gave oral evidence. The applicant’s representative did not attend the hearing.

8. On 16 November 2017 the Tribunal invited the applicant under section 359A of the Act to comment upon information regarding his earnings, English language test results and student records. It also invited the applicant to comment upon the fact that the Imperial College of Technology and Management (BJSB Pty Ltd) (‘Imperial College’) and Education Access (Australia) Pty Ltd (‘Education Access’) are not registered as higher education providers in Australia. The invitation noted that this information was relevant to whether the applicant met the vocational English and the relevant exemption for the purposes of clause 186.222.

9. In addition, to facilitate the applicant’s response the Tribunal letter included copies of information from the Commonwealth Department of Education (‘DET’), the Tertiary Education Quality and Standards Agency and the Australian Skills Quality Authority regarding the status of Imperial College and Education Access as education providers in Australia. The Tribunal invitation also indicated that applicant’s comments / response should be provided by 30 November 2017.[5]

   [5]     T1, f.54-71

10. On 27 November 2017 the applicant’s representative requested an extension of time in which to respond to the Tribunal invitation because the applicant wished to obtain evidence of his studies from overseas.[6] Accordingly, on 30 November 2017 the Tribunal granted this request for a further prescribed period, namely, to 14 December 2017.[7]   

    [6]     T1, f.72-73

    [7]     T1, f.74-76

11. In response to the Tribunal section 359A invitation the applicant’s representative provided a lengthy submission with additional information to the Tribunal on 13 and 14 December 2017. In her submission the representative argued that the applicant met the five year full-time study exemption in the relevant instrument for the purposes of clause 186.222. She also requested additional time in which to provide evidence confirming the applicant’s overseas secondary school education[8], which was provided to the Tribunal on 8 January 2018.[9]

    [8]     T1, f.77-81 & 85-110

    [9]     T1, f.115-116

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. Division 186.2 ‘Primary Criteria’ in Subclass 186 provides that the primary criteria an applicant in the Temporary Residence Transition stream must satisfy are set out in Subdivisions 186.21 (‘Common criteria’) and 186.22 (‘Criteria for Temporary Residence Transition stream’). 

14. In addition, Division 186.2 specifically states that the primary criteria must be satisfied by at least one member of a family unit, and that all criteria must be satisfied at the time a decision is made on the application.

15. The issue in the present case is whether the applicant meets the requirements of clause 186.222 of the Regulations.

    English language proficiency

16. Specifically, for applicants in the Temporary Residence Transition stream clause 186.222 provides:

    186.222At the time of application, the applicant:

    (a)had vocational English; or

    (b)was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

    Paragraph 186.222(a) - Vocational English:

17. ‘Vocational English’ is defined in regulation 1.15B of the Regulations. A person will have vocational English if he or she either:

    ·undertook a specified language test[10]  in the three years immediately preceding the visa application[11] and achieved a specified score[12]; or

    ·holds a specified passport.[13]

    The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005, 'Language Tests, Score and Passports 2015 (Regulations 1.15B, 1.15C, 1.15D and 1.15EA)', 3 December 2014. 

    [10] Paragraph 1.15B(1)(a) of the Regulations

    [11] Paragraph 1.15B(1)(bb) of the Regulations

    [12] Paragraph 1.15B(1)(c) of the Regulations

    [13] Subregulation 1.15B(2) of the Regulations

18. The applicant stated in his visa application form that he was a citizen of Nepal.[14] He also provided a copy of a valid Nepalese passport[15] in support of his application. In addition, at the hearing the applicant gave oral evidence that he did not hold a valid passport issued by any other country.

    [14]    D1, f.179

    [15]    D1, f.36

19. Accordingly, the Tribunal is satisfied that the applicant was not the holder of a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland when he lodged his visa application on 26 August 2016. Therefore, the Tribunal finds that the applicant did not have ‘vocational English’ on this basis (as set out in IMMI 15/005[16]) for the purposes of subregulation 1.15B(2) of the Regulations.

    [16]    See subclause 5.C of IMMI 15/005

20. Subregulation 1.15B(1) requires the applicant to have undertaken a specified English language test and to have achieved the specified score during the three years immediately before the lodgment of his visa application.

21. For this purpose, the applicant stated in his visa application form that he had not undertaken an English language test in the 36 months prior to lodging this application.[17] In addition, the applicant indicated that he was seeking an exemption from the English language requirement on the basis of having completed at least five years of fulltime study in a secondary and/or higher education institution where all of the tuition was delivered in English.[18]

    [17]    D1, f.211

    [18]    D1, f.214

22. As a result, the applicant did not provide the Department with any evidence that he had undertaken an International English Language Testing System (‘IELTS’) test for the purposes of his visa application. Instead, he sought to rely on evidence that he had completed a number of courses of study in Australia for the purposes of the relevant exemption specified for the purposes of paragraph 186.222(b).[19]

    [19]    D1, f.16-19, 22-42,82-105, 111-123 & 163-170

23. Despite this, the applicant provided to the Tribunal copies of the results he had achieved in the IELTS tests he had undertaken on 4 November 2006[20], 22 August 2009[21], 5 September 2009[22], 11 May 2013[23], 8 June 2013[24] and 3 June 2017.[25]

    [20]    T1, f.29

    [21]    T1, f.28

    [22]    T1, f.27

    [23]    T1, f.26

    [24]    T1, f.25

    [25]    T1, f.24

24. At the Tribunal hearing the applicant also gave evidence that he had undertaken several IELTS tests, but that he had not otherwise undertaken an Occupational English Test, a Test of English as a Foreign Language internet-based Test, a Pearson Test of English Academic, or a Cambridge English: Advanced Test. In addition, the applicant confirmed that he had achieved the following test scores in each of the IELTS tests he had undertaken:

IELTS Test Component	4 November 2006	22 August 2009	5 September 2009	11 May 2013	8 June 2013	3 June 2017
Listening	5.5	6.0	6.0	6.0	6.5	5.5
Reading	5.0	5.0	4.5	4.0	6.0	5.5
Writing	5.0	6.0	5.5	5.5	6.0	5.5
Speaking	6.0	5.5	5.5	6.5	7.0	6.0
Overall Band Score	5.5	5.5	5.5	5.5	6.5	5.5

1. The Tribunal notes that the applicant and his representative have not disputed the accuracy of these records in the section 359A response they provided to the Tribunal on 13 December 2017.[26]

   [26]    T1, f.79-79 reverse

2. Notwithstanding, the Tribunal observes that for the purposes of the definition of vocational English’ in regulation 1.15B, subclause 5.B(i) of IMMI 15/005 specifies that an applicant must have achieved a score of at least 5.0 in each of the four test components of listening, reading, writing and speaking for the purposes of paragraphs 1.15B(1)(a) and (c) of the Regulations. In addition, paragraph 1.15B(1)(bb) provides that the test in which these results are achieved must have been conducted in the three years immediately before the day on which the application was made.

3. Accordingly, as the applicant made his visa application on 26 August 2016, the Tribunal finds that the IELTS tests he undertook on 4 November 2006, 22 August 2009, 5 September 2009, 11 May 2013 and 8 June 2013 were undertaken more than three years immediately before he made his visa application. Therefore, given the requirements of paragraph 1.15B(1)(bb), the Tribunal finds that the results the applicant achieved in these tests cannot be taken into account for the purposes of subregulation 1.15B(1) and the definition of ‘vocational English’ in regulation 1.15B.

4. In relation to the results the applicant achieved in the IELTS test he undertook on 3 June 2017, the Tribunal notes that these also do not meet the requirements of paragraph 1.15B(1)(bb). This is because the applicant undertook this test after he made his visa application, rather than during the three years immediately before he made his visa application on 26 August 2016.

5. The Tribunal further notes that the wording of clause 186.222 specifically requires the applicant to demonstrate that at the time of application he had ‘vocational English’, or that he was in a class of persons specified by the Minister that was exempt from this requirement. As such, clause 186.222 is drafted in the past tense and there is little in its wording to suggest that the IELTS test the applicant undertook on 3 June 2017, after he had lodged his visa application on 26 August 2016, can be relied upon to meet the requirements of this provision.

6. As a result, given the requirements of paragraph 1.15B(1)(bb), the Tribunal finds that the results the applicant achieved in his IELTS test on 3 June 2017 also cannot be taken into account for the purposes of the definition of ‘vocational English’ in regulation 1.15B.

7. Finally, the Tribunal observes that the applicant has not submitted any other evidence to indicate that, at the time of application, he had undertaken any of the English language tests specified for the purposes of regulation 1.15B during the three years immediately before he made his visa application.

8. As a consequence, given its findings in respect of each of the IELTS tests the applicant has presented, the Tribunal finds that he did not have ‘vocational English’, as defined in regulation 1.15B at the time of application.

9. Therefore, the Tribunal finds that at the time of application the applicant did not have ‘vocational English’. Consequently, it is satisfied that he does not meet the requirements of paragraph 186.222(a).

   Paragraph 186.222(b) – Specified Class of Exempt Persons:

   (a)The Application of Legislative Instrument IMMI 17/058:

10. In the alternative, paragraph 186.222(b) requires that, at the time of application, the applicant was a person in a class of persons specified for this paragraph.

11. However, as noted above, Division 186.2 in Schedule 2 of the Regulations also provides that the Tribunal must be satisfied that this criterion is met at the time it makes its decision.

12. The Tribunal observes that when the applicant lodged his visa application on 26 August 2016, the instrument that specified the class of persons for paragraph 186.222(b) was legislative instrument IMMI 15/083 ‘Specification of Class of Persons 2015’.[27]

    [27]    IMMI, 15/083 ‘Specification of Specification of Class of Persons 2015 (Subclause 186.234(3) and Paragraphs 186.221(b), 186.222(b), 186.231(b), 186.232(b), 187.221(b), 187.222(b), 187.231(b), 187.232(b), 187.234(a) and Sub-subparagraph 5.19(4)(h)(ii)(D))’, 25 June 2015.

13. However, at the time of the Tribunal’s decision the relevant instrument specified for the purposes of paragraph 186.222(b) is IMMI 17/058 ‘Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas’.[28]

    [28]    IMMI 17/058, ‘Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas, 23 June 2017. ’

14. Notably, at the time of the Tribunal’s decision there is no judicial authority that specifically addresses which of the two legislative instruments, IMMI 17/058 or IMMI 15/083 should be applied for the purposes of paragraph 186.222(b). 

15. The Tribunal has also become aware of a departmental media release (dated 11 July 2017[29]) that seeks to clarify changes to employer-sponsored permanent visas, and which states:

    The business community should be assured that changes to the exemption to English language and skills assessment requirements for employer-sponsored permanent visas will not be applied to applications lodged before the changes came into effect on 1 July 2017.

    The Government is removing the exemption for applicants earning over $180,000 per year for English language and skills assessments for the Employer Nomination Scheme (subclass 186) and Regional Sponsored Migration Scheme (subclass 187).

    In implementing this change, the Department will ensure it only affects applications lodged from 1 July.

    The removal of the exemption is designed to prevent misuse of the program by individuals inflating their income to avoid having to undertake an English test or a skills assessment.

    Applications lodged before 1 July will continue to be assessed on merit, and anyone suspected of inflating their incomes will be subject to further scrutiny in the application process.

    [Tribunal emphasis]

    [29]    T1, f.33 - Accessed 13 November 2017, 15 December 2017 and 9 January 2018

16. However, the Tribunal observes that Part 4 of subparagraph 13(1) of IMMI 17/058 specifically states that ‘[t]his instrument applies to applications for Subclass 186 and Subclass 187 visas …made before 1 July 2017 and not finally determined by that date.’ As a result, this instrument applies to a Subclass 186 visa application, such as the current application, that was made before 1 July 2017 and not determined by that date.[30]

    [30]    See IMMI 17/058, Part 4, clause 13 at page 5

17. In addition, the Courts have held that the departmental policy set out in the ‘Procedures Advice Manual 3’ (‘PAM3’) guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations. Consequently, they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[31] As a result, it is well established that whilst the Tribunal may be guided by policy, it is not bound to follow it.[32]

    [31]    See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55]

    [32]    See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

18. Importantly, and for analogous reasons, the Tribunal considers the contents of a departmental media release cannot be binding upon it, especially in relation to the task of construing a particular legislative provision in the Regulations. As a result, to the extent the departmental media release issued on 11 July 2017 seeks to override the wording of IMMI 17/058, the Tribunal considers that it constitutes an impermissible gloss on the wording and effect of this legislative instrument.

19. Accordingly, given the wording of Division 186.2, clause 186.222 and IMMI 17/058, the Tribunal considers it should apply IMMI 17/058 to the facts of this case. For the purposes of paragraph 186.222(b), IMMI 17/058 specifies the following class of persons at clause 12:

    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. 

1. As noted above, the applicant claimed that he was in a class of persons specified for the purposes of paragraph 186.222(b) because he had completed at least five years of full-time study in secondary education institutions overseas, and full-time post-secondary studies in Australia.[33]

   [33]    T1, f.78-78 reverse

2. In support of these claims the applicant submitted evidence of his secondary school studies in India and Nepal, as well as copies of his Confirmation of Enrolment’ forms[34], qualification certificates [35], including statements of completion and academic transcripts, for the courses of study he had undertaken in Australia.[36] Accordingly, the evidence and relevant issues are discussed as follows:

   The Applicant’s Secondary School Studies:

   [34]    D1, f.111-118 & 163-170

   [35]    D1, f.82-105 & 119-124 & T1, f.30

   [36]    D1, f.27, 29-33 & T1, f.36-41 & 43

3. The Tribunal has the following evidence before it regarding the applicant’s secondary school studies:

   ·Two letters (both dated 13 December 2017[37]) from the Jaswant Modern Senior Secondary School in Uttarakhand, India stating that the applicant had studied at this school from 1992 (Grade 4) to 1999 (Grade 10). These letters also confirmed that education at this school is imparted in the English medium, and that the applicant had completed his final secondary school examination in 1999; 

   ·A certificate (dated 12 June 2001[38]) from the Modern Indian School, Chobar, Kathmandu, Nepal (‘the Modern Indian School’) stating that the applicant had “passed the XIIth Class Examination of the Central Board of Secondary Education, New Delhi” whilst enrolled as a student at this school from 9 May 1999 to 31 March 2001; and

   ·A letter (dated 29 November 2017[39]) from the Modern Indian School stating that the medium of instruction for the applicant’s course of study at this school was English.

   [37]    T1, f.109 & 115

   [38]    T1, f.31

   [39]    T1, f.77 & 78 reverse

4. In terms of the applicant’s secondary studies, the Tribunal notes that the DET website provides a Country Education Profile for both India and Nepal. However, the relevant Country Education Profiles for both India and Nepal do not provide an official list of secondary school institutions for either of these countries, only a list of higher education institutions.  In particular, the Tribunal notes that the Jaswant Modern Senior Secondary School does not appear on the list of higher education institutions for India[40] and the Modern Indian School does not appear on the corresponding list for Nepal.[41] 

   [40]    T1, f.117-118: – Accessed 9 January 2018

   [41]    T1, f.111: See - Accessed 14 and 27 November  2017, 15 December 2017 and 10 January 2018

5. However, according to the list on the ‘Official Website of School Education for the Government of Uttarakhand’[42], the Jaswant Modern Senior Secondary School is an officially registered secondary school in India. The Tribunal observes that the address and official registration details on the two letters from this school that have been submitted in respect of the applicant match the relevant details on the official government list for this school.

   [42]    T1, f.119-120: - Accessed 10 January 2018 

6. In addition, according to its website, the Jaswant Modern Senior Secondary School is affiliated with the Central Board of Secondary Education (New Delhi) and provides classes from nursery to Year 9 in English.[43] Students are also expected to maintain 100% school attendance[44] and to converse in English within and outside the campus.[45]   

   [43]    T1, f.121-122: See - Accessed 10 January 2018

   [44]    T1, f.123-124: See - Accessed 10 January 2018

   [45]    T1, f.125-126: See - Accessed 10 January 2018

7. Accordingly, on the evidence before it, the Tribunal accepts that the Jaswant Modern Senior Secondary School qualifies as a secondary education institution in India for the purposes of the exemption at clause 12 of IMMI 17/058. The Tribunal also finds that this is an institution where all the tuition was delivered in English.

8. Correspondingly, according to the Educate Nepal website[46], which is an online source of information regarding Nepalese education and career options, the Modern Indian School is a school that is affiliated with Cambridge International. As such, it provides a two year course (GCE A-Level) for those who are seeking to prepare for university education. Further, according to its website the Modern Indian School is also affiliated with the Central Board of Secondary Education, it offers an education in the English medium[47], and students are expected to attend school on all working days.[48]  

   [46]    T1, f.112-114: See - Accessed 15 December 2017

   [47]    T1, f.128-129: See - Accessed 10 January 2018

   [48]    T1, f.127: See - Accessed 10 January 2018

9. As a result, on the basis of this evidence the Tribunal also accepts that the Modern Indian School Chobar in Kathmandu qualifies as a secondary education institution in Nepal for the purposes of the exemption at clause 12 of IMMI 17/058, and that it is an institution where all the tuition is delivered in English.

10. In terms of whether the applicant meets the relevant exemption in clause 12 of IMMI 17/058, on the basis of the two letters (dated 13 December 2017[49]) from the Jaswant Modern Senior Secondary School and the other evidence before it, the Tribunal is satisfied that the applicant completed Grades 7 – 10 of his secondary school education at this school from 1995 to 1998. As a result, the Tribunal finds that the applicant completed at least four years of full-time study in a secondary education institution in India for the purposes of clause 12 of IMMI 17/058.

    [49]    T1, f.109 & 115

11. Correspondingly, in relation to the applicant’s studies at the Modern Indian School in Nepal, given the Year 12 equivalent certificate (dated 12 June 2001[50]) and letter (dated 29 November 2017[51]) from this school, the Tribunal is satisfied that the applicant completed his secondary education at this school from 1999 to 2001. Consequently, the Tribunal finds that the applicant completed an additional two years of full-time study in a secondary education institution in Nepal for the purposes of clause 12 of IMMI 17/058.

    [50]    T1, f.31

    [51]    T1, f.77 & 78 reverse

12. As a result, and for the reasons set out above, the Tribunal finds that applicant had completed six years of full-time study in overseas secondary education institutions where all of the tuition was delivered in English at the time he lodged his visa application on 26 August 2016. Therefore, the Tribunal is satisfied that the applicant is a person specified in Clause 12 in IMMI 17/058 for the purposes of paragraph 186.222(b).

13. Accordingly, given these findings, it is not necessary for the Tribunal to assess whether the applicant had also completed at least five years of full-time study in a higher education institution in Australia at the time he lodged his visa application. The exemption in clause 12 of IMMI 17/058 does not require the applicant to demonstrate five years of full-time study in a secondary and higher education institution; five years study at either type of institution will suffice.

14. Consequently, the Tribunal finds that the applicant was a person in a class of persons specified by the Minister in IMMI 17/058, an instrument in writing for the purposes of paragraph 186.222(b), at the time of application.

15. Therefore, the Tribunal finds that the applicant meets the requirements of paragraph 186.222(b) and clause 186.222.

    (b)The Application of Legislative Instrument IMMI 15/083:

16. Further, in the event that the correct interpretation of paragraph 186.222(b) requires it to apply IMMI 15/083, the Tribunal observes that IMMI15/083 specifies two classes of person who are exempt for the purposes of paragraph 186.222(b). These are:

    ·Clause 2:

    Class 1

    Persons who have applied under the Regulations for a visa, and whose earnings will be at least equivalent to the current Australian Taxation Office’s top individual income tax rate.

    ·Clause 4:

    Class 3

    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. 

17. In relation to clause 2 and Class 1 in IMMI 15/083, at the time of the Tribunal’s decision, the current top individual income tax rate set by the Australian Tax Office is $180,001 and over. This was also the rate that applied when the applicant lodged his visa application on 26 August 2016.[52]  

    [52]    T1, f.63: See - Accessed 13 November 2017 and 10 January 2018

18. The applicant gave oral evidence at the hearing that his annual salary was approximately $54,000 and that it had not reached the top income tax rate of $180,001. As a consequence, the Tribunal is satisfied that the applicant did not come within Class 1 in of the persons specified in clause 2 of IMMI 15/083 for the purposes of paragraph 186.222(b) at the time of application.

19. As regards clause 4 and Class 3 in IMMI 15/058, apart from some minor changes in relation the wording of this clause compared to the class of persons listed in clause 12 of IMMI 17/058, clause 4 largely reflects what is set out in clause 12 in IMMI 17/058 for the purposes of paragraph 186.222(b).

20. As a result, and for the reasons set out above, the Tribunal finds that applicant had completed at least five years of full-time study in a secondary education institution where all of the tuition was delivered in English at the time he lodged his visa application on 26 August 2016. Therefore, the Tribunal is also satisfied that the applicant is a person specified in Class 3 of clause 4 in IMMI 15/083.

21. Given the above findings, the Tribunal finds that the applicant was also a person in a class of persons specified by the Minister in IMMI 15/083, an instrument in writing, for the purposes of paragraph 186.222(b) at the time of application.

    Summation:

22. Consequently, the Tribunal is satisfied that at the time of application the applicant was a person in a class of persons specified by the Minister in an instrument in writing for the purposes of paragraph 186.222(b).

23. Therefore, the Tribunal finds that the applicant meets the requirements of paragraph 186.222(b) regardless of whether it applies the current legislative instrument IMMI 17/058, or its predecessor IMMI 15/083.

    CONCLUSION

24. Accordingly, given the above findings in respect of paragraph 186.222(b), the Tribunal finds that the applicant meets the requirements of clause 186.222. Therefore, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visas.

    DECISION

25. The Tribunal remits the application for the 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:

    ·Clause 186.222 of Schedule 2 to the Regulations.

    Danica Buljan
    Member