Muhammad (Migration)

[2023] AATA 71

Muhammad (Migration) [2023] AATA 71 (9 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zeeshan Muhammad
Ms Maham Zeeshan

REPRESENTATIVE:  Mr Damian Nugara (MARN: 0637909)

CASE NUMBER:  2003237

HOME AFFAIRS REFERENCE(S):          BCC2019/4718071

MEMBER:Wan Shum

DATE:9 January 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.

Statement made on 09 January 2023 at 10:16am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – cook – English language proficiency – exemption for persons who have completed five years of secondary or higher education delivered in English – study at secondary school, college and university in home country – country information on educational system – ‘higher education institution’ – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15C, Schedule 2, cl 186.222

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 on 11 February 2020 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 20 September 2019. At the time of application, Class EN contained 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 first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because the applicant had not demonstrated that at the time of application he had ‘competent English’ or was in a class of persons exempt from that requirement.

6. The applicants sought review of that decision and were represented in relation to the review by the same registered migration agent that had assisted with their visa application.

7. The applicants appeared before the Tribunal on 2 June 2022 by videoconference using Microsoft Teams to give evidence and present arguments. The representative was present throughout. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the English language proficiency criteria is met.

10. At the time the visa application was made, an applicant in the Temporary Residence Transition stream must either have ‘competent English’ as defined in reg 1.15C of the Regulations or be in a class of persons specified: cl 186.222. The applicant in this case provided evidence that he had undertaken a specified language test in the three years preceding the visa application but, as he had not achieved the specified minimum score in each of test components, and did not hold a specified passport, he did not have ‘competent English’.

11. Instead, the applicant is claiming on review to be in a specified class of exempt applicants specified in an instrument in writing, which in this case is IMMI 18/045. The exempt class of persons is described as “persons who have completed a minimum of five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English”.

12. The courses of study that the applicant listed on his visa application form were:

    ·Certificate III in Hospitality (Commercial Cookery) from 6 October 2016 to 12 December 2016

    ·Certificate IV in Hospitality (Commercial Cookery) from 9 November 2016 to 12 December 2016

    ·Bachelor of Commerce, University of the Punjab in Pakistan from 3 January 2009 to 1 September 2012

13. On review, it was submitted that the applicant should be taken to have completed a minimum of five years of full-time study in a secondary or higher education institution in Pakistan and Australia on the basis of the following:

    ·Secondary School Certificate at Shahid City Public School in Narowal, Pakistan - Period of study March 1997 to June 2006

    ·Intermediate of Commerce at National College of Commerce (NCC) in Narowal, Pakistan - Period of study July 2006 to December 2008

    ·Bachelor of Commerce at University of the Punjab in Pakistan - Period of study March 2009 to July 2012

    ·English for Academic Purposes at Metro English College Sydney, Australia - Period of study February 2015 to August 2015

    ·Certificate III and Certificate IV Commercial Cookery at FMEDGE College Melbourne, Australia - Period of study February 2016 to December 2016

14. However, the Tribunal notes that the period of study set out in the transcript of results for the Commercial Cookery studies at FMEDGE College reflect the dates in the visa application form of October to December 2016 and not February to December 2016. The Tribunal does not accept that the applicant undertook full-time study from February to December 2016, as he advised at the hearing that the qualifications were awarded based on recognition of prior learning. The Tribunal also does not consider that the English language course is full-time study. The Tribunal raised these concerns with the applicant and allowed further time to provide supplementary material.

15. Following the hearing, a further submission was provided that the applicant was relying upon 6 years of full-time study at different institutions in Pakistan. In these submissions, it is explained that the applicant is claiming two years of secondary education at Shahid City Public School, Narowal from March 2004 to June 2006 where he obtained his Secondary School Certificate; followed by 18 months of Intermediate of Commerce at National College of Commerce (NCC) in Narowal from July 2006 to December 2008 and 3 years of study at University of the Punjab rather than 2 years because he had to study a further 1 year due to a failed subject.

16. The evidence provided in support of these claims include letters from Shahid City Public School, Narowal attesting that the applicant completed his secondary school certificate examination in 2006 and that he completed two years secondary school during academic session 2004 – 2006. According to Country Education Profile information on Pakistan, under the Pakistani education system, these are the “lower” secondary school years. The Tribunal finds that the applicant had 2 years of secondary education study at Shahid City Public School, Narowal in English.

17. The letter from National College of Commerce, Narowal states that the applicant “was a regular student of Intermediate of Commerce… session 2006-2008” but did not state whether it was full time study. The Tribunal sought clarification and a further letter from the National College dated 3 January 2023 was provided relevantly stating that he was a full-time student from July 2006 to July 2008, which the Tribunal notes is shorter than the period claimed in the submissions. The letter from the Assistant Registrar (Academic) at the University of the Punjab certifying that the applicant passed a Bachelor of Commerce states that the duration of the course was two years, that the Bachelor of Commerce is a 2 year full-time regular degree program and the actual period spent by the applicant to obtain the degree is from 2010 to 2012. Given this, the Tribunal finds that the applicant completed two years of full-time study at University of the Punjab and not three as submitted.

18. The Tribunal will now consider whether these institutions are “secondary education institutions” or “higher education institutions” for the purposes of IMMI 18/045.

19. In this regard, the Tribunal notes that the instrument does not specify or explain what is meant by ‘higher education institution’ or how this is to be determined. The PAM 3 guidelines seek to provide guidance on this, however the Tribunal notes that the guidelines have changed over time including, notably, since the applicant made the application for the visa and the delegate decided the matter till now. Overall, having considered the intention of the exemption, the Tribunal is of the view that the term means an education institution that delivers courses that are at or higher than secondary level education, however that institution may be labelled. The Tribunal further considers that whether study is at secondary level or higher would be determined by reference to the education system in the country or location of the study, having regard to the Australian education system and qualifications framework.

20. To assist in its determination, the Tribunal considers the Country Education Profiles maintained by the Department of Education provide relevant information on the education systems in countries around the world. Relevantly to this case is the Country Education Profile on Pakistan which indicates that school education lasts 12 years, follows a 5+3+2+2 model comprising 5 years of primary education (starting at the age of 5), 3 years of middle school, 2 years of lower secondary and 2 years of higher secondary studies (sometimes known as intermediate schooling). Lower secondary school comprises 2 years of study (grades 9-10) and at the end of Grade 10, students sit secondary school certificate examinations run by the provincial Boards of Secondary Education. The term 'Matriculation' is often used to describe passing Grade 10 and the Tribunal notes that the term is used in the letter dated 4 November 2022 from Shahid City Public School.

21. The Tribunal therefore accepts on the information before it that the applicant obtained his secondary school certificate in 2006 and that he completed 2 years, or 24 months, of secondary school education at Shahid City Public School in Narowal.

22. It was submitted that following the completion of his Secondary School Certificate, the applicant undertook his Intermediate Education, which it was claimed was the equivalent of Grade 11 and Grade 12, as a student of Intermediate of Commerce at the National College of Commerce, Narowal for the period July 2006 to December 2008. The two letters from the National College of Commerce, Narowal indicate that the applicant was a full-time student during July 2006 to July 2008 and the medium of instruction was English. According to the Higher Education Department of the Government of the Punjab, the National College of Commerce Narowal is a Private Degree College for males and was established on 1 July 2006. Although the Tribunal has been unable to find information on the ‘Intermediate of Commerce’ in Country Education Profiles or other websites maintained by Pakistani government bodies, it appears broadly consistent with the option of studying in the ‘Polytechnics, Institutes and Colleges of Technology’ stream after (lower) secondary school studies are complete as an alternate pathway to studying at a senior secondary school. The Tribunal therefore finds that it is a “higher education institution” for the purposes of IMMI 18/045 on the information before it. It accepts that the applicant completed 24 months of study at National College of Commerce and that it is a higher education institution delivering the equivalent of (upper) secondary education in Pakistan.

23. The study at University of the Punjab was for 2 years according to the letter from the University and not for 3 years as set out in the submissions. It was submitted that the applicant had studied there for 3 years because he had to repeat one year because of a failed subject. However, the Tribunal does not accept that this would have been full-time study for that year when he repeated a single subject. The Tribunal finds that the applicant completed two years, or 24 months, of full-time study at the University of the Punjab. According to Country Education Profiles maintained by the Department of Education on Pakistan, the University of the Punjab is classified as Section 1 – Leading institutions, Pakistan. The Bachelor degree (pass) 2 to 3 years full-time is considered the equivalent of an Associate Degree under the AQF. The Tribunal finds on the information before it that the University of the Punjab is an education institution that delivers higher than secondary education, so it is “higher education institution” for the purposes of IMMI 18/045.

24. The Tribunal finds that the applicant completed 72 months of full time study in Pakistan which could be described as secondary and/or higher education institutions.

25. Therefore, cl 186.222 is met.

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

    DECISION

27. 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.

    Wan Shum
    Member