Lanjanthuek (Migration)

[2019] AATA 5347

Lanjanthuek (Migration) [2019] AATA 5347 (25 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chatchai Lanjanthuek
Miss Arunee Boonchuay

CASE NUMBER:  1820322

HOME AFFAIRS REFERENCE(S):          BCC2017/2309055

MEMBER:Sheridan Lee

DATE:25 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 25 November 2019 at 2:14pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition scheme – English language proficiency – vocational English – no specified language test in three years preceding visa application – exemption for five years’ full-time higher education delivered in English – “higher education” – “institution” – vocational education and training (VET) providers not higher education providers – applicant’s study at certificate and diploma level at English language and VET colleges – colleges not accredited with Tertiary Education Authority – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.15B, Schedule 2, cl 186.222(b)

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 21 June 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 29 June 2017. 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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in 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 he did not have vocational English and was not in a class of persons specified by the Minister in the relevant migration instrument.

6. The applicant appeared before the Tribunal on 16 October 2019 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency

9. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have a defined level of English language proficiency, or be in a class of persons specified in the relevant legislative instrument: cl.186.222. For visa applications made before 1 July 2017 the level required is vocational English.

10. ‘Vocational English’ is defined in r.1.15B and ‘competent English’ is defined in r.1.15C of the Regulations. 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.

11. At the hearing, the applicant confirmed that he did not supply the Department with evidence that he successfully undertook a specified language test prior to submitting the Subclass 186 visa application. He holds a Thai passport, which is not a specified passport for the purposes of the provision. He therefore does not meet the requirements of the above definition. The applicant has instead sought to meet the requirements of cl.186.222 on the basis that he is in a class of exempt persons specified by the Minister in writing. Relevantly, immigration instrument 15/083 specifies:

    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.

12. Whilst the exemption in IMMI 15/083 refers to full-time study in a ‘higher education institution’, this term is not defined in either the Act or Regulations.

13. In submissions received on 16 October and 15 November 2019, the applicant’s representative argued that a higher education institution is any institution that can confer a diploma or above. For the following reasons, the Tribunal does not agree with such an interpretation.

14. According to the Macquarie Dictionary online, the term ‘higher education’ is defined to mean ‘education beyond secondary education’. It also defines ‘institution’ to mean:

    1.  An organisation or establishment for the promotion of a particular object, usually one for some public, educational, charitable, or similar purpose.

    2.  A building used for such work, as a college, school, hospital, mental hospital, or the like.

    3.  A concern engaged in some activity, as an insurance company.   

15. The ordinary dictionary meaning of both ‘higher education’ and ‘institution’ suggests that a ‘higher education institution’ is an institution that provides education services after secondary school. The Tribunal does not consider that the wording of the instrument is so broad as to encompass any institution that offers educational classes to adults. There are a broad range of education institutions - not all educational offerings provide the recipient with a formal qualification, some courses have no pre-requisites for entry and some institutions focus on vocational training. Even the dictionary definition envisages something ‘beyond’ secondary education, not simply something other than secondary education.

16. In terms of what kind of institution, or provider of education services, will constitute a ‘higher education institution’, Departmental policy provides the following guidance:

    5 years or more full-time study in secondary and/or higher education, with all tuition in English

    Higher education is understood to mean tertiary studies at university or equivalent level. Vocational educational training courses (VET) where course requirements comprise a mixture of classroom tuition and on-the-job training cannot be accepted. Also not acceptable are English language courses undertaken for the specific purpose of obtaining an IELTS or equivalent score.

    The applicant must have undertaken all studies, other than those that may relate to specific languages, in English. For example, if the course covered various subjects including Spanish and French as specific subjects, instruction for all subjects other than Spanish and French must have been delivered in English.

    The required total of five years can consist of full-time study at secondary (high-school) level only; or it can be a mixture of secondary and tertiary studies; or it can consist of university level-equivalent study only, comprising a mixture of undergraduate (Bachelor) and graduate (Masters and/or Doctoral) studies.

17. The Tribunal accepts the Departmental policy as a valid consideration for assessing what constitutes study in a higher education institution. However, it is not finally determinative of the issue.

18. The Tertiary Education Quality and Standards Agency (‘TEQSA’) is Australia’s independent national quality assurance and regulatory agency for higher education. It has responsibility for the registration of higher education providers and accreditation of higher education courses under the Tertiary Education Quality and Standards Agency Act 2011 (‘the TEQSA Act’). TEQSA maintains the National Register for Providers and Courses as an authoritative source of information on the status of registered higher education providers in Australia.

19. The TEQSA website outlines that all organisations that offer higher education qualifications in or from Australia, must be registered by TEQSA. The Australian higher education sector includes public and private universities, Australian branches of overseas universities and other higher education providers. Higher education providers offer qualifications ranging from undergraduate awards (bachelor degrees, associate degrees and advanced diplomas) to postgraduate awards (graduate certificates and diplomas, masters and doctoral degrees).

20. Although the TEQSA Act does not specifically define the concept ‘higher education institution’, section 5 of this Act defines a ‘higher education provider’ to mean a person or corporation that offers or confers a regulated higher education award. In turn, the TEQSA Act defines a ‘higher education award’ to be a diploma, advanced diploma, associate degree, bachelor degree, graduate certificate, graduate diploma, masters degree, doctoral degree or qualification covered by level 5 or above under the Australian Qualifications Framework. The definition specifically excludes an award offered or conferred for the completion of a vocational education and training course. 

21. Similarly, the Australian Skills Quality Authority (ASQA) is the national regulator for the VET sector under the National Vocational Education and Training Regulator Act 2011 (‘the National VET Act’). The providers of VET include technical and further education (TAFE) institutes, adult and community education providers and agricultural colleges, as well as private providers, community organisations, industry skill centres, and commercial and enterprise training providers. In addition, some universities and schools provide VET.

22. For the purposes of interpreting IMMI 15/083, the Tribunal has had regard to submissions from the applicant’s representative, the ordinary dictionary meaning of the words ‘higher education’ and ‘institution’ and the responsibilities of TEQSA and ASQA, as well as the policy guidelines. With consideration of the material, the Tribunal finds that not every education institution that provides a post-secondary education service in Australia can claim to be a higher education institution. Those education institutions seeking to provide services in the higher education sector are required to be registered by TEQSA as a higher education provider.

23. On the basis of this evidence, the Tribunal is of the view that the term ‘higher education institution’ in Australia refers to an education provider that is registered by TEQSA for this purpose, rather than an education provider registered by ASQA for the VET sector.

24. Nothing in the wording of clause 186.222(b) or the legislative instrument limits the availability of the ‘higher education’ exemption to only those who have undertaken a bachelor or higher level course of study at a university. Accordingly, to the extent that the Departmental policy suggests that only study at a university at the undergraduate bachelor or graduate level can constitute study in a ‘higher education institution’, the Tribunal finds that the policy goes beyond the wording of the legislation. Given this, the Tribunal is satisfied that there are cogent reasons to depart from it in this respect.

25. The applicant submitted evidence that he undertook study in the following courses, delivered in English. Not all courses were completed.

    ·Certificates II and III in Spoken and Written English at Academia International

    ·Certificates II, III and IV in Spoken and Written English at Bendigo TAFE

    ·Certificate III in Hospitality (Commercial Cookery) at Bendigo TAFE

    ·Certificate IV in Hospitality (Commercial Cookery) at Academia International

    ·Diploma of Hospitality (Commercial Cookery) at Academia International

    ·General English at KAPS Institute of Management.

26. None of these providers are registered as higher education providers with TEQSA. In addition, while the providers may offer a diploma course, none of the providers are accredited to confer the qualification with TEQSA. As previously outlined, the Tribunal does not consider that the concept of a higher education institution is so broad as to encompass any educational provider that delivers educational courses to adults. In this case, the Tribunal finds that none of the study undertaken by the applicant counts towards the completion of five years study at a higher education institution. He is therefore not an exempt person.

27. 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.

28. As the Tribunal found that the applicant does not satisfy the primary criteria it must find that the second named applicant does not satisfy the secondary criteria for a grant of a visa, as she is not a member of a family unit of a person who holds a Subclass 186 visa.

    DECISION

29. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Sheridan Lee
    Member