Narongtairate (Migration)

[2023] AATA 3464

Narongtairate (Migration) [2023] AATA 3464 (12 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gampon Narongtairate
Miss Monthida Ridthiworachart
Master Akira Narongtairate

REPRESENTATIVE:  Mr Theeradech Paopeng (MARN: 0851174)

CASE NUMBER:  2112192

HOME AFFAIRS REFERENCE(S):          BCC2019/5787093

MEMBER:Karen McNamara

DATE:12 October 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 12 October 2023 at 1:26pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – café or restaurant manager – English language proficiency – competent English – no specified language test undertaken – five years of full-time secondary and/or higher study delivered in English – VET courses – at time of delegate’s decision, VET courses could not be considered – guidelines since amended to include VET courses – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C(1), 360(3), 363A
Migration Regulations 1994 (Cth), 1.15C(1)(c), Schedule 2, cls 186.222, 186.311

CASE
Hasran v MIAC [2010] FCAFC 40

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 2 September 2021, 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 15 November 2019. 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 (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 Mr Gampon Narongtairate (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position/occupation of Café or Restaurant Manager (ANZSCO 141111).

5. The decision record provided to the Tribunal by the applicant, records that on 2 September 2021, the delegate refused to grant the visas, because Mr Gampon Narongtairate did not meet cl.186.222 of Schedule 2 to the Regulations. The delegate found that the applicant did not provide evidence of having competent English at the time of application nor was he a person in a class of persons specified in the relevant instrument.

6. The delegate also found that the second named applicant (Miss Monthida Ridthiworachart) and third named applicant (Master Akira Narongtairate) could not be granted a Subclass 186 visa, as they did not meet the secondary visa criterion (cl.186.311), requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 11 September 2021. The review application was accompanied by copies of the applicants’ passport bio data pages. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

8. On 7 August 2023, the Tribunal wrote to the applicants pursuant to s.359(2) of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient), inviting the applicants to provide evidence to support at the time of application (15 November 2019) Mr Narongtairate had competent English; or was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

9. The invitation was sent to the applicants’ authorised recipient/representative via the last email address provided in connection with the review and advised that, if the information was not provided in writing by 21 August 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicants would lose any entitlement they might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.

10. On 10 October 2023, the representative provided a submission to the Tribunal. The representative did not address the failure to respond within the prescribed time. The submission was accompanied by evidence supporting the applicant’s completion of a minimum of five years of full-time study in a secondary or higher education institution. The Tribunal notes that this evidence was initially provided to the Department at the time the applicants lodged their visa application on 15 November 2019.

11. Where an applicant is invited to provide further information in accordance with subsection 359(2) of the Act and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information (subsection 359C(1) of the Act) and pursuant to s.360(3) of the Act, the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

12. As the applicants failed to provide the information requested within the prescribed period, the applicants have lost their right to appear before the Tribunal to give evidence and present arguments relating to the review application. The Tribunal therefore in the circumstances, has decided to proceed to make its decision on the available evidence.

13. The applicants were represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether Mr Gampon Narongtairate had competent English at the time of application: cl.186.222 (a) or was a person in a class of persons specified by the Minister in an instrument for cl.186.222 (b) of Schedule 2 to the Regulations.

    English language proficiency

16. 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 a legislative instrument (IMMI 18/045): cl 186.222. 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.

17. ‘Vocational English’ is defined in reg 1.15B and ‘competent English’ is defined in reg 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.

18. In this instance, having regard to the date of visa application, the required level is competent English. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005. For paragraph 1.15C(1)(c) of the Regulations, the following test scores are specified:

    i. an IELTS test score of at least 6 in each of the four test components of speaking, reading, writing and listening; or

    ii. an OET test score of at least B in each of the four test components of speaking, reading, writing and listening; or

    iii. a TOEFL iBT test score with at least the following scores in the four test components: 18 for speaking, 13 for reading, 21 for writing and 12 for listening; or

    iv. a PTE Academic test score of at least 50 in each of the four test components of speaking, reading, writing and listening.

19. For r.1.15C(2), the relevant passports are a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.

20. The Tribunal is satisfied that the applicant holds a passport issued by the Kingdom of Thailand. He therefore does not hold a passport specified in IMMI 15/005, and thus must demonstrate that he has obtained the required scores in a specified English test undertaken in the three years preceding the visa application (that is, in the three years prior to 15 November 2019).

21. The delegate in their decision noted that the applicant indicated in his application form that he had not undertaken an English language test in the last 36 months. Therefore, the applicant did not meet reg 1.15C(1).

22. Having considered the evidence before it, the Tribunal finds that there is no evidence to support, that at the time the applicant lodged his application with the Department on 15 November 2019, he had undertaken a language test as specified by the Minister in the 3 years immediately before the day on which the application was made.

23. As the applicant has not provided evidence that he has achieved a specified score in a specified test in the 3 years immediately before the day the application was made; and given the applicant holds a Thai passport (which is not of a type specified by the Minister), the applicant does not meet the requirements of r.1.15C. Therefore, the Tribunal must find that the applicant does not have competent English as defined in r.1.15C and as such the applicant does not meet cl.186.222(a).

24. At the time the applicant lodged his subclass 186 visa application on 15 November 2019, the relevant legislative instrument for the purposes of cl.186.222(b) of schedule 2 to the Regulations is IMMI 18/045. The Tribunal notes that IMMI 18/045 provides an exemption for applicants seeking to satisfy cl.186.222(b) under the Temporary Residency Transition stream. For the purposes of cl.186.222(b) and cl.187.222(b) of Schedule 2 to the Regulations, persons who, at the date of application for a Subclass 186 visa or a Subclass 187 visa, have completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English, are specified.

25. The applicant is claiming to be a person in a class of persons specified under IMMI 18/045, specifically a person who has 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.

26. From the evidence on the Department and Tribunal files, the applicant undertook three courses in Australia from April 2011 to May 2017, as listed in the table below.

Institution	Qualification	Conducted in English	Course completion time	Duration of study
Sydney School of Business Technology	Advanced Diploma of Hospitality	Yes	04/04/2011 to 29/03/2013	1 year , 11 months, 25 days
Bridge Business College	Diploma of Accounting	Yes	20/05/2013 to 02/04/2016	2 years, 10 months, 13 days
Bridge Business College	Diploma of Human Resource Management	Yes	16/05/2016 to 13/05/2017	11 months, 27 days
TOTAL DURATION AT REGISTERED HIGHER EDUCATIONAL INSTITUTIONS				Approx 5 years and 9 months

1. The delegate noted that the above qualifications were at the requisite AQF level of 5 or higher (diploma or higher). However, the evidence indicated that the courses were delivered by Registered Training Organisations (RTOs) registered by ASQA and were therefore VET courses. The delegate did not consider that these courses could be accepted as tertiary study towards meeting the English requirement of at least 5 years full-time study in a higher education institution. 

2. At the time the delegate made their decision, it appears VET courses could not be considered. Departmental PAM3 guidelines at the time, regarding the types of study accepted as 'secondary and/or higher education', stated that Certificate IV Diploma qualifications obtained as part of VET courses are not acceptable for the purpose of the English language exemption. The delegate referenced the Tertiary Education Quality and Standards Agency Act 2011 (the TEQSA Act), the Australian Skills Quality Authority (ASQA), and Registered Training Organisations and concluded 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”.  The Tribunal notes that the PAM3 guidelines have since been amended to include VET courses “within the meaning of the National Vocational Education and Training Regulator Act 2011 as defined by the TEQSA 2011 Act”.

3. On review, the applicant is relying on completion of at least five years of full-time study in a higher education institution where all of the tuition was delivered in English. On the evidence before it, the Tribunal finds that the applicant completed at least 5 years of study at a higher institution on a full-time basis and that all subjects undertaken by the applicant were taught in English. Accordingly, the Tribunal finds that at the time of application the applicant was a person in a class of persons specified by the Minister for the purposes of cl 186.222(b) and therefore satisfies cl 186.222.

4. The second named applicant (Miss Monthida Ridthiworachart), and third named applicant (Master Akira Narongtairate) applied on the basis of being a member of the family unit of the first named applicant (Mr Gampon Narongtairate). The applications by Miss Monthida Ridthiworachart and Master Akira Narongtairate will be determined by reference to the outcome of Mr Gampon Narongtairate’s application on remittal to the Department for consideration.

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

   DECISION

6. 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.

   Karen McNamara
   Member