Martinez (Migration)

[2018] AATA 5620

Martinez (Migration) [2018] AATA 5620 (9 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Franzen Plaza Martinez
Mrs Gina Maraton Martinez
Ms Janien Maraton Martinez
Mr John Chris Maraton Martinez

CASE NUMBER:  1800689

HOME AFFAIRS REFERENCE(S):           BCC2017/1815651

MEMBER:Alison Mercer

DATE:9 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the first named applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

The Tribunal does not have jurisdiction in relation to the second, third and fourth named applicants.

Statement made on 09 October 2018 at 11:20am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Diesel Motor Mechanic – English language requirements not met – not-exempt from English language requirements – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 347, 359
Migration Regulations 1994, r 1.15, Schedule 2, cl 187.222

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 22 May 2017. At the time of application, Class RN contained one subclass: subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry 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 Diesel Motor Mechanic (ANZSCO code 321212).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.222 of Schedule 2 to the Regulations. The delegate noted that this clause required the applicant to have demonstrated that he had ‘vocational English’ by having undertaken a specified test in which he obtained the specified scores prior to having lodged his subclass 187 visa application. Alternatively, the applicant had to establish that he fell into a category of persons exempt from having to demonstrate that they had vocational English. The delegate found that the applicant was not exempt from having to demonstrate he had vocational English, and further found that he had not undertaken a specified English test before making his visa application. The delegate therefore found that the applicant did not meet cl.187.222 and could not be granted a subclass 187 visa.

6. The delegate further found that the second, third and fourth named applicants (the applicant’s wife and children) could not be granted subclass 187 visas either, as they did not meet the secondary visa criteria to be members of the family unit of a person who met the primary visa criteria, and there was no evidence that they met the primary visa criteria in their own right.

7. The Tribunal received a review application from the applicants on 9 January 2018, which was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Giovanni Cristiano, as their representative and authorised recipient for correspondence.

8. The applicant appeared before the Tribunal on 18 July 2018 to give evidence and present arguments. The Tribunal also received oral submissions from his agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

9. The applicant and his agent did not dispute the fact that the applicant had not undertaken a specified English test prior to making his subclass 187 visa application but indicated that they considered that the applicant fell within the category of persons exempt from having to do so. The applicant’s agent asserted that the applicant had at least 5 years of secondary and/or higher education at an educational institution where the medium of instruction was English. The applicant’s agent stated that the applicant had undertaken a 2 year course at the University of Visayas in the Philippines for which the medium of instruction was English, plus he had undertaken approximately 5 years of high school in the Philippines in English. The Tribunal noted that the delegate had accepted that the applicant’s University course was taught in English but had not accepted that his high schooling was conducted in English, only that English was one of the subjects taken by the applicant in circumstances where the medium of instruction for his other subjects was Tagalog.

10. The Tribunal asked the applicant about his secondary schooling in the Philippines.  He told the Tribunal that he undertook 4 years of high school education there. He clarified that English was a separate subject that he undertook, while the rest of his subjects were not taught in English, but in Tagalog. The applicant’s agent said that the applicant provided the same information to the Department in relation to meeting the English requirement for the grant of his subclass 457 visa, and that they were confused when it was found to be insufficient for the purposes of the subclass 187 visa application. He further noted that the applicant did not undertake a specified English test before making his current subclass 187 visa application because he had been granted the subclass 457 visa without being required to undertake one.

11. The Tribunal clarified with the applicant his current salary, and he advised that he is paid approximately $28 per hour, or $1,200 per week.

12. Following the hearing, the Tribunal received an email from the applicant’s agent stating that the applicant was distressed that the information he had conveyed during the hearing was inaccurate. The agent attached a written statement and expressed the hope that the Tribunal would consider that information, which should have been presented by the applicant at the hearing. The agent also attached a new certificate issued by the applicant’s college in the Philippines.

13. The written statement is from the agent and is as follows:

    My client… attended a hearing earlier today and was distressed that the information he conveyed during the hearing was incorrect.

    The question posed by the member during the hearing asked if the subjects studied at ‘High School’ were delivered in English or Tagalog… The question posed by the member was clear and straight forward, however somewhere in the interpretation and [the applicant’s] response the answer provided to the member did not accurately represent [the applicant’s] intended response.

    [The applicant] advised after the hearing that all major subjects, including English, Maths, Science, expect [sic] for the subjects ‘Filipino’ and ‘Makabayan’ (local subjects). He asked if this information could be considered, thank you.’

14. The attached document was a scanned copy of a document stated to be from the Department of Education, Caraga Administrative Region, Division of Agusan Del Sur, Talacogon National High School, dated 18 July 2018, in which it is certified that the applicant ‘is a completer of this institution that major of instruction in all subject is english except for filipino subject or tagalog subject. Furthermore, he is of good moral character, having committed no breaches, or misdemeanours contrary to existing rules, regulations and policies of the school. This certification is issued upon the request of the interested party in connection with whatever legal intents this may serve him best.’

15. Given this, the Tribunal wrote to the applicant on 21 September 2018, via his agent, pursuant to s.359A of the Act. The Tribunal invited the applicant to comment on, or respond to, information that potentially adversely affected the case. The Tribunal noted that the applicant was relying on having completed 5 years of secondary and/or higher education for which all of the instruction was English to be exempted from having to have done a specified English test at the time he made the visa application. The Tribunal noted that he claimed to have undertaken a 2 year university course in the Philippines, and 4 years of secondary schooling there, the instruction for which was in English. However, the Tribunal further noted that the applicant’s transcript from the Talacognon National High School indicated that he studied the following subjects for 4 years: English, Maths, Science, Filipino and Makabayan, and that he gave evidence that all of these subjects were taught in English, except for Filipino and Makabayan, which were taught in Tagalog. The Tribunal noted that an abstract for an article entitled ‘Makabayan Curriculum for Secondary Schools in the Philippines: the Development of Citizenship’ in the publication Educational Research for Policy and Practice 2(1): 13 – 26 January 2003 by Dr Rizalyn Mendoza-Kolman and Shuichi Nakayama provided information indicating that the Department of Education in the Philippines had undertaken initiatives to restructure the curriculum for secondary schools as part of its ongoing efforts to improve the quality of learning, and produced a new basic education curriculum in 2002, known as the Basic Education Curriculum.  All public schools in the country were mandated to implement this curriculum at the start of the 2002-2003 school year, including the learning area Makabayan (along with English, Filipino, Science and Mathematics). Makabayan from First to Fourth Year was designed to develop the personal, social and work special skills of learners, especially their interpersonal skills, empathy with other cultures, vocational efficiency, problem-solving and decision-making in daily life; that is, to develop socio-cultural and politico-economic literacy.

16. The Tribunal advised that it considered that this information was relevant to the review, because subject to the applicant’s comments, it appeared that the Makabayan subject he undertook was not a language subject, but a broader civics subject. The Tribunal noted that it therefore appeared that not all of the tuition for the applicant’s secondary schooling was delivered in English and thus the Tribunal might find that he did not fall within the exemption set out in IMMI 17/058, even when the Department’s policy guidelines in its PAM3 were taken into account (which allowed for language subjects to be excluded from the assessment of ‘all of the tuition’ – if applied, the fact that the applicant’s Filipino subject was taught in Tagalog would be acceptable, but Makabayan would not). The Tribunal further noted that if it found that the applicant did not meet cl.187.222(b) and did not meet cl.187.222(a) because he did not have vocational English at the time of his visa application, then it would have to find that he did not meet cl.187.222 as a whole and this would be the reason (or part of the reason) for the Tribunal affirming the decision under review.

17. The Tribunal also noted that the Department’s movement records indicated that the applicant’s listed family unit members were not in Australia at the time of the visa application, the Department’s decision and the time that the review application was lodged. The Tribunal stated that it was of the view that s.347(3) of the Act required that they were in the migration zone (Australia) at the time that the review application was made in order to be validly included in the review application.

18. The Tribunal invited the applicant to comment on, or respond to, this information by 5 October 2018.

19. The applicant and his agent did not respond to the Tribunal’s letter by 5 October 2018, and did not request an extension of time to do so.

20. Accordingly, the Tribunal has made its decision on the evidence before it.

21. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed in relation to the first named applicant, and that it does not have jurisdiction in relation to the second, third and fourth named applicants.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    English language proficiency

22. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have defined level of English language proficiency, or be in a class of persons specified in legislative instrument IMMI 17/058: cl.187.222. 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.

23. ‘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.

24. In this instance, having regard to the date of visa application, the required level is vocational English. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005. Regulation 1.15B(2) and item 5 of that instrument specifies that, for visa applications lodged on or after 1 January 2015, an applicant has vocational English if he or she holds a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland (subitem 5C), or if he or she has undertaken a specified English test in which he or she has obtained the specified scores (subitems 5A and 5B). Any test must have been undertaken in the 3 years immediately before the day on which the visa application was made – r.1.15B(1)(bb).

25. It is not disputed that the applicant holds a valid passport issued by the Philippines and therefore does not meet r.1.15B(2). It is also not disputed that he did not undertake a specified English test in which he obtained the specified scores in the 3 years immediately before making his subclass 187 visa application on 22 May 2017.  He therefore does not satisfy r.1.15B(1) and does not have vocational English for the purposes of cl.187.222(a). Moreover, he cannot now sit such a test, as this requirement had to be met at the time of the visa application – cl.187.222(a).

26. Accordingly, the applicant can only satisfy cl.187.222 if he meets cl.187.222(b), which requires at the time of the application, the applicant was an exempt person as specified in IMMI 17/058 (which is expressed at item 13 to apply to all applications for subclass 187 visas made before 1 July 2017 and not finally determined by that date). Item 12 of Part 3 of that instrument provides that the following persons are exempt for the purposes of cl.187.222(b):

    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.

27. The delegate found that the applicant did not satisfy this requirement. While she accepted that the applicant had completed 2 years of higher education at the University of Visayas in the Philippines (between June 1993 and June 1995) for which the medium of instruction was English, she found that this fell short of the 5 years required. She did not accept that the applicant’s 4 years of secondary studies at Talacognon National High School (graduation: 25 March 1993) could be counted as the documents provided by the applicant indicated that although English was one of the core subjects, it was not the medium of instruction overall.

28. The Tribunal notes that the certificate provided by the applicant to the Department from the Talacognon National High School is dated 6 December 2012 and states that the applicant ‘… is a bonafide student.. and graduated last 25^th day of March, 1993.  This certifies further that English subject was one of the core subjects in the secondary curriculum he had taken and he passed with an average of 80%...’.  He also provided what appears to be his graduation certificate from that school, which is in the Tagalog language, and an academic transcript, in both Tagalog and English, which indicates that the applicant undertook the following subjects over a 4 year period: English, Math, Science, Filipino, and Makabayan. The medium of instruction for the applicant’s secondary schooling in the Philippines is not specified.

29. At the hearing, the Tribunal specifically asked the applicant to indicate whether he undertook English as a standalone subject only (with the remainder of his subjects being taught in Tagalog) or whether all of the subjects he undertook at high school were taught in English. The Tribunal used the interpreter for these inquiries and asked the applicant to respond through the interpreter, to ensure that the Tribunal’s question and the applicant’s response were clear. He told the Tribunal that English was one of his subjects and that the other subjects were not taught in English but in Tagalog. No concerns were expressed to the Tribunal at the hearing by the applicant or his agent regarding the interpreting or any other issue of non-comprehension by the applicant.

30. As noted above, following the hearing, the Tribunal received a written statement from the applicant’s agent asserting that what the applicant meant to say at hearing was that his subjects English, Math and Science were taught in English and that the remaining subjects he undertook, Filipino and Makabayan, were taught in Tagalog. A scanned copy of a certificate from the Talacognon National High School dated 18 July 2018 was provided indicating that the medium of instruction at the school was English, apart from the subjects Filipino and Makabayan, which were taught in Tagalog.

31. The Tribunal notes that the information contained in the latest certificate is consistent with the Australian Department of Education and Training’s Country Education Profile on the Philippines, which states as follows in its Overview of the Education System of the Philippines (publication date not listed although the Profile is stated to have been last updated on 26 February 2013):

    The 1935 Constitution required teaching to be in English, and it was the official language of the country until 1987. The new Constitution included Filipino (Tagalog) along with English. In practice, English continues to be widely used at the upper primary, secondary and tertiary levels.

    The language of instruction in primary school depends on the grade. In the early years the local language is used, in addition to teaching Filipino and English as second languages. In upper primary, English is used to teach mathematics, science and English.

    Students develop English language skills at different rates, depending on their backgrounds and whether they live in regional or urban areas…

32. The Tribunal has had regard to the Department’s Procedures Advice Manual (PAM3) (as at 22 August 2018) which provides the following advice to decision-makers for subclass 187 purposes in relation to cl.187.222:

    7.9.2 TRT English language proficiency exemptions

    7.9.2.1 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…

1. The Tribunal accepts that the Filipino subject undertaken by the applicant is a Filipino language subject and therefore exempt from having to be taught in English, as this is analogous with the example of the subjects of French and Spanish above. However, the nature of the Makabayan subject is less clear. An abstract for an article entitled ‘Makabayan Curriculum for Secondary Schools in the Philippines: The Development of Citizenship’ in the publication Educational Research for Policy and Practice 2(1): 13 – 26 January 2003 by Dr Rizalyn Mendoza-Kolman and Shuichi Nakayama provides the following information:

   The Department of Education in the Philippines has undertaken initiatives to restructure the curriculum for secondary schools as part of its ongoing effort to improve the quality of learning. After a decade of study, the Department produced a new basic education curriculum, as the 2002 Basic Education Curriculum. All public schools in the country were mandated to implement the curriculum at the start of the 2002-2003 school year. Makabayan (nationalistic or patriotic) is one of the learning areas in the Basic Education Curriculum along with English, Filipino, Science and Mathematics. Makabayan from First to Fourth Year is designed to develop the personal, social and work special skills of learners, especially their interpersonal skills, empathy with other cultures, vocational efficiency, problem-solving, and decision-making in daily life, that is, to develop socio-cultural and politico-economic literacy. This paper describes the context and content of the Makabayan curriculum and the extent to which it develops in learners a sense of citizenship, that is, a healthy personal and national self-concept… >

   It therefore appears to the Tribunal that the applicant’s Makabayan subject is not a language subject, but a broader social/civics subject. It is for this reason that the Tribunal sent a.359A letter to the applicant setting out the above information, and inviting him to comment on the Tribunal’s preliminary view that it appeared that he did not fall within the exemption category in IMMI 17/058.  As noted above, the Tribunal did not receive a response, or comments, from the applicant or his agent in relation to this issue.

2. Having considered this issue carefully, the Tribunal finds that not all of the tuition for the applicant’s full-time study at his secondary school in the Philippines was delivered in English, as required by IMMI 17/058. Even applying the arguably more generous interpretation in PAM3, by which the applicant’s Filipino language subject would not count against him in assessing this matter, the Tribunal finds that the applicant’s Makabayan subject is not a language subject and was not taught in English.  The Tribunal therefore finds that the applicant’s secondary schooling in the Philippines does not meet the specifications in IMMI 17/058 to count towards the requisite period of at least 5 years which would qualify him as exempt from having to demonstrate vocational English. If the applicant’s 4 years of secondary schooling in the Philippines are excluded, he has less than 5 years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English (as his full-time study at the University of Visayas, where the medium of instruction was English, amounts to 2 years only).

3. Accordingly, the Tribunal finds that the applicant does not fall within the exemption category in IMMI 17/058 and therefore does not meet cl.187.222(b). As set out above, the Tribunal finds that the applicant does not have vocational English as required by cl.187.222(a). He therefore cannot satisfy cl.187.222 and is not entitled to a subclass 187 visa in the TRT stream.

4. The applicant has only sought to satisfy the criteria for a subclass 187 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. There is no indication that the applicant’s nomination meets the requirements of the Direct Entry or Labour Agreement streams, but even if that were so, the Tribunal finds that they have the same English proficiency requirements.

5. As the requirements that must be met by a person seeking the visa have not been met, the decision under review must be affirmed.

6. As also flagged in its s.359A letter, the Tribunal finds that it does not have jurisdiction in relation to the second, third and fourth named applicants as they were not in the migration zone on the date that the review application was lodged, as required by s.347(3) of the Act.

   DECISION

7. The Tribunal affirms the decision not to grant the first named applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

8. The Tribunal does not have jurisdiction in relation to the second, third and fourth named applicants.

   Alison Mercer

   Member