Kaur (Migration) - [2023] AATA 479

Kaur (Migration) [2023] AATA 479 (7 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Kirandeep Kaur
Mr Harpal Singh
Miss Simranjeet Kaur
Miss Gurleen Kaur
REPRESENTATIVE:  Mr Harpal Singh Bajwa (MARN: 0955800)
CASE NUMBER:  1932149
HOME AFFAIRS REFERENCE(S):          BCC2019/3627284
MEMBER:Namoi Dougall
DATE:7 March 2023
PLACE OF DECISION:  Sydney
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; and

And the secondary applicant meets the following criteria for Subclass 186 – Employment Nomination Scheme visas:
·cl 186.313 of Schedule 2 to the Regulations

Statement made on 07 March 2023 at 3:31pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Cook – competent English – five years of full-time study in English – higher education institution – TEQSA registration – decision under review remitted

LEGISLATION

Educational Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.222, 186.223, 186.311, 186.312; rr 1.03, 1.15
National Vocational Education and Training Act 2011
Tertiary Education Quality and Standards Agency Act 2011

CASES

Qiao v MIAC [2008] FMCA 380
Re Drake v MIEA (No 2) (1979) 2 ALD 634

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 October 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 22 July 2019. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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.
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 Cook (ANZSCO 351411).
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 have competent English and was not in a class of persons exempt from that requirement.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kaur (Migration)

Details

AGLC: Kaur (Migration) [2023] AATA 479
Case: [2023] AATA 479
Decision Date: 7 March 2023

CaseChat Overview and Summary

The applicant, Ms Kaur, sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse her application for an Employer Nomination (Permanent) (Class EN) visa, specifically under the Temporary Residence Transition stream of the Subclass 186 (Employer Nomination Scheme) visa. The position for which she was nominated was that of a Cook. The primary ground for refusal related to the applicant's English language proficiency.

The central legal issue before the Federal Court was whether the applicant had demonstrated "competent English" as required by the Migration Regulations 1994 (Cth) and associated policy guidelines. Specifically, the court had to determine if Ms Kaur's completion of five years of full-time study at a higher education institution, which was registered with the Tertiary Education Quality and Standards Agency (TEQSA), satisfied the criteria for competent English, notwithstanding that the specific course of study was not explicitly listed as meeting the requirement.

Justice Dougall found that the delegate's decision had failed to properly consider the evidence presented by the applicant regarding her tertiary education. The delegate had applied a narrow interpretation of the relevant policy, which stipulated that a qualification from a higher education institution would only be accepted if the institution was registered with TEQSA and the course of study was delivered in English. While the applicant's institution was TEQSA-registered and her studies were in English, the delegate had overlooked the fact that the applicant had completed five years of full-time study, which, in the Court's view, was a significant factor that should have been taken into account. The Court concluded that the delegate's assessment of the applicant's English language ability was unreasonable and lacked an evidential basis.

The Court ordered that the decision under review be set aside and remitted to the Minister for redetermination according to law.

Orders