Ramasamy (Migration)

[2017] AATA 2352

Ramasamy (Migration) [2017] AATA 2352 (16 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Raja Muniandi Ramasamy
Mrs Megala Perumal
Master Jeevaananthan Raja Muniandi
Master Chandramoule Raja Muniandi
Master Sasivarman Raja Muniandi

CASE NUMBER:  1711705

DIBP REFERENCE(S):  BCC2016/3487481

MEMBER:Danica Buljan

DATE:16 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 16 November 2017 at 9:11am

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visas – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition – Occupation – Cook – Language test scores – Did not pass the English language  requirements

LEGISLATION

Educational Services for Overseas Students Act 2000

Migration Act 1958, s 65

Migration Regulations 1994, rr. 1.03, 1.15B, 1.15B(1), 1.15B(1)(a)-(c), 1.15B(2), 1.15D, 1.15EA, Schedule 2 186, 186.222, 186.222(a), 186.222(b), 186.311

Tertiary Education Quality and Standards Agency Act 2011, s 5

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 Immigration on 23 May 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied to the Department of Immigration for the visas on 20 October 2016. 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 to 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 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’ (ANZSCO[1] Code 351411). This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

   [1]     ANZSCO: Australian and New Zealand Standard Classification of Occupations, 26 June 2013

5. The delegate refused to grant the visas because the applicant did not meet clause 186.222 of Schedule 2 to the Regulations, as he had not demonstrated that, at the time of application, he had ‘vocational English’ or that he was a person who was exempt from this requirement under the legislation.

6. The applicants lodged an application for review with the Tribunal on 1 June 2017, and a copy of the primary decision was included with the application for review.[2]  The applicants were represented in relation to the review by their registered migration agent.

   [2]     AAT Case file 1711705 (T1), f.1-9

7. The Tribunal has before it the departmental file[3] relating to the applicants. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[4]

   [3]     D1 - Departmental file BCC2016/3487481 folio numbered 1-198

   [4]     AAT Case file 1711705, folio numbered 1-63

8. Although the applicants appeared before the Tribunal on 16 October 2017 to give evidence and present arguments, only the applicant gave oral evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Division 186.2 ‘Primary Criteria’ in Subclass 186 provides that the primary criteria an applicant in the Temporary Residence Transition stream must satisfy are set out in Subdivisions 186.21 (‘Common criteria’) and 186.22 (‘Criteria for Temporary Residence Transition stream’). 

11. In addition, Division 186.2 specifically states that the primary criteria must be satisfied by at least one member of a family unit, and that all criteria must be satisfied at the time a decision is made on the application.

12. The issue in the present case is whether the applicant meets the requirements of clause 186.222 of the Regulations.

    English language proficiency

13. Specifically, for applicants in the Temporary Residence Transition stream clause 186.222 provides:

    186.222At the time of application, the applicant:

    (a)had vocational English; or

    (b)was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

    Paragraph 186.222(a) - Vocational English:

14. ‘Vocational English’ is defined in regulation 1.15B of the Regulations. A person will have vocational English if he or she either:

    ·undertook a specified language test[5] in the three years immediately preceding the visa application[6] and achieved a specified score;[7] or

    ·holds a specified passport.[8]

    The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005, 'Language Tests, Score and Passports 2015 (Regulations 1.15B, 1.15B, 1.15D and 1.15EA)', 3 December 2014. 

    [5]     Paragraph 1.15B(1)(a) of the Regulations

    [6]     Paragraph 1.15B(1)(bb) of the Regulations

    [7]     Paragraph 1.15B(1)(c) of the Regulations

    [8]     Subregulation 1.15B(2) of the Regulations

15. The applicant stated in his visa application form that he was a citizen of Malaysia.[9] He also provided a copy of a valid Malaysian passport[10] in support of his application. In addition, at the hearing the applicant gave oral evidence that he did not hold a valid passport issued by any other country.

    [9]     D1, f.179

    [10]    D1, f.36

16. Accordingly, the Tribunal is satisfied that the applicant was not the holder of a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland when he lodged his visa application on 20 October 2016. Therefore, the Tribunal finds that he did not have ‘vocational English’ on this basis as set out in IMMI 15/005[11] for the purposes of subregulation 1.15B(2) of the Regulations.

    [11]    See subclause 5.C of IMMI 15/005

17. Subregulation 1.15B(1) requires the applicant to have undertaken a specified English language test and to have achieved the specified score during the three years immediately before the lodgment of his visa application.

18. For this purpose, the applicant stated in his visa application form that he had not undertaken an English language test within the last 36 months prior to lodging this application, but that he had ‘functional English’.[12] He did not indicate that he was seeking an exemption from the English language requirement.[13]

    [12]    D1, f.193

    [13]    D1, f.196

19. The applicant subsequently provided to the Tribunal copies of the results he had achieved in the International English Language Testing System (‘IELTS’) tests he had undertaken on 7 November 2009[14], 5 March 2011[15], 7 February 2015[16], 13 June 2015[17], 9 January 2016[18] and 20 February 2016.[19]

    [14]    T1, f.18

    [15]    T1, f.33 reverse

    [16]    T1, f.10

    [17]    T1, f.12

    [18]    T1, f.13

    [19]    T1, f.11

20. At the Tribunal hearing the applicant confirmed that he had undertaken several IELTS tests, but that he had not otherwise undertaken an Occupational English Test (‘OET’), a Test of English as a Foreign Language internet-based Test (‘TOEFLiBT’), a Pearson Test of English Academic (‘PTE Academic’), or a Cambridge English: Advanced Test (‘CAE’).

21. In addition, at the Tribunal hearing the applicant confirmed that he had achieved the following test scores in each of the following IELTS tests he had undertaken:

IELTS Test Component	7 November 2009	5 March 2011	7 February 2015	13 June 2015	9 January 2016	20 February 2016
Listening	5.0	5.5	5.0	5.5	5.5	6.0
Reading	4.0	5.0	4.0	5.0	4.0	4.5
Writing	5.0	5.0	4.5	4.0	6.0	5.0
Speaking	5.0	5.0	5.5	5.0	5.0	6.0
Overall Band Score	5.0	5.5	5.0	5.0	5.0	5.5

1. However, subclause 5.B(i) of IMMI 15/005 specifies that an applicant must have achieved a score of at least 5.0 in each of the four test components of listening, reading, writing and speaking in order to have ‘vocational English’ for the purposes of paragraphs 1.15B(1)(a) and (c) of the Regulations. In addition, paragraph 1.15B(1)(bb) provides that the test must have been conducted in the three years immediately before the day on which the application was made. 

2. Accordingly, as the application was made on 20 October 2016, the IELTS tests undertaken by the applicant on 7 November 2009, 5 March 2011 were undertaken more than three years immediately before his visa application. Therefore, the results the applicant achieved in these tests cannot be taken into account for the purposes of paragraph 1.15B(1)(bb) and the definition of ‘vocational English’ in regulation 1.15B.

3. The Tribunal finds that the IELTS test the applicant undertook on 7 February 2015, 13 June 2015, 9 January 2016 and 20 February 2016 prior to the lodgment of his visa application on 20 October 2016 meet the requirements of paragraph 1.15B(1)(bb) of the Regulations.

4. However, the applicant achieved a test score of 4.0 and 4.5 for the reading and writing components respectively in his IELTS test on 7 February 2015. He also achieved a test score of 4.0 for the writing test component on 13 June 2015 and a test score of 4.0 for the reading component on 9 January 2016. Finally, the applicant achieved a test score of 4.5 for the reading component on 20 February 2016. As a result, the applicant did not achieve an IELTS test score of at least 5.0 in each of the four test components of listening, reading, writing and speaking in each of these tests.  

5. Consequently, the Tribunal finds that the results the applicant achieved in each of these tests does not meet the requirements of subclause 5.B(i) in IMMI 15/005 for the purposes of paragraphs 1.15B(1)(a) and (c), and thus subregulation 1.15B(1).

6. The applicant has not submitted to the Tribunal any other IELTS test results undertaken in the three years prior to the lodgment of his visa application on 20 October 2016. He also confirmed at the hearing that he had not undertaken any of the other tests specified in clause 5.A of IMMI15/005 for the purposes of subregulation 1.15B(1).

7. As a consequence, given its findings in respect of subregulations 1.15B(1) and (2) above, the Tribunal finds that the applicant did not have ‘vocational English’, as defined in regulation 1.15B at the time of application.

8. Therefore, the Tribunal finds that at the time of application the applicant did not have ‘vocational English’ and, consequently, it is satisfied that he does not meet the requirements of paragraph 186.222(a)

   Paragraph 186.222(b) – Specified Class of Exempt Persons:

   (a)The Application of Legislative Instrument IMMI 17/058:

9. In the alternative, paragraph 186.222(b) requires that, at the time of application, the applicant was a person in a class of persons specified for this paragraph.

10. However, as noted above, Division 186.2 also provides that the Tribunal must be satisfied that this criterion is met at the time it makes its decision.

11. The Tribunal observes that when the applicant lodged his visa application on 20 October 2016, the instrument that specified the class of persons for paragraph 186.222(b) was legislative instrument IMMI 15/083 ‘Specification of Class of Persons 2015’.[20]

    [20]    IMMI, 15/083 ‘Specification of Specification of Class of Persons 2015 (Subclause 186.234(3) and Paragraphs 186.221(b), 186.222(b), 186.231(b), 186.232(b), 187.221(b), 187.222(b), 187.231(b), 187.232(b), 187.234(a) and Sub-subparagraph 5.19(4)(h)(ii)(D))’, 25 June 2015

12. However, at the time of the Tribunal’s decision the relevant instrument specified for the purposes of paragraph 186.222(b) is IMMI 17/058 ‘Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas’.[21]

    [21]    IMMI 17/058, ‘Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas’, 23 June 2017

13. Notably, at the time of the Tribunal’s decision there is no judicial authority that specifically addresses which of the two legislative instruments, IMMI 17/058 or IMMI 15/083, should be applied for the purposes of paragraph 186.222(b). 

14. The Tribunal has also become aware of a departmental media release (dated 11 July 2017[22]) that seeks to clarify changes to employer-sponsored permanent visas, and which states:

    The business community should be assured that changes to the exemption to English language and skills assessment requirements for employer-sponsored permanent visas will not be applied to applications lodged before the changes came into effect on 1 July 2017.

    The Government is removing the exemption for applicants earning over $180,000 per year for English language and skills assessments for the Employer Nomination Scheme (subclass 186) and Regional Sponsored Migration Scheme (subclass 187).

    In implementing this change, the Department will ensure it only affects applications lodged from 1 July.

    The removal of the exemption is designed to prevent misuse of the program by individuals inflating their income to avoid having to undertake an English test or a skills assessment.

    Applications lodged before 1 July will continue to be assessed on merit, and anyone suspected of inflating their incomes will be subject to further scrutiny in the application process.

    [Tribunal emphasis]

    [22]    T1, f.41 - Accessed 8 November 2017

15. However, the Tribunal observes that at Part 4, subclause 13(1) of IMMI 17/058 specifically states that ‘[t]his instrument applies to applications for Subclass 186 and Subclass 187 visas…made before 1 July 2017 and not finally determined by that date.’

16. In other words, IMMI 17/058 repealed and replaced IMMI 15/083. As a result, it applies to a Subclass 186 visa application, such as the current application, that was made before 1 July 2017 and not determined by that date.[23]

    [23]    See IMMI 17/058, Part 4, clause 13 at page 5

17. In addition, the Courts have held that the departmental policy set out in the ‘Procedures Advice Manual 3’ (‘PAM3’) guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations. Consequently, they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[24]

    [24]    See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55]

18. As a consequence, it is well established that whilst the Tribunal may be guided by policy, it is not bound to follow it.[25]

    [25]    See Brennan, J. in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

19. Importantly, and for analogous reasons, the Tribunal considers the contents of a departmental media release cannot be binding upon it, especially in relation to the task of construing a particular legislative provision in the Regulations.

20. As a result, to the extent the departmental media release issued on 11 July 2017 seeks to override the wording of IMMI 17/058, the Tribunal considers that it constitutes an impermissible gloss on the wording and effect of this legislative instrument.

21. Accordingly, given the wording of Division 186.2, clause 186.222 and IMMI 17/058, the Tribunal considers it should apply IMMI 17/058 to the facts of this case.

22. For the purposes of paragraph 186.222(b), IMMI 17/058 specifies the following class of persons at clause 12:

    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. 

23. In a submission to the Department (dated 6 May 2017[26]) and to the Tribunal (dated 6 October 2017[27]) the applicant’s representative claimed that the applicant came within this class because he had completed three years of his secondary education in an English speaking school in Malaysia and he had also completed post-secondary studies in Australia.

    [26]    D1, f.39-40

    [27]    T1, f.33-37

24. In support of his claims regarding his secondary school studies the applicant submitted a letter of support (dated 19 October 2016[28]) from the principal of the Stella Maris Secondary School, Jalan Robertson, in Kuala Lumpur, as well as information available online regarding the operation of Stella Maris schools in Malaysia and Australia.[29]

    [28]    D1, f.38

    [29]    T1, f.34 reverse – 36 reverse

25. In addition, the applicant submitted[30] copies of the qualification certificates, final statements of completion and academic transcripts for the following courses of study in Australia:

    [30]    D1, f.56-64 & 88-97

Course Dates	Institution	Course	Course Duration (Months)	Completion Date	Full-time Tuition in  English
17.07.06 - 15.12.06	Box Hill Institute	Certificate IV in ESL (Further Study)[31]	20 weeks (5 months)	15.12.06	Yes
Dates not provided	Box Hill Institute	Implement Food Safety Procedures[32]	Not available	26.09.07	Yes
Dates not provided	KJB Occupational Health Services	Apply First Aid (Level 2)[33]	Not available	Certificate issued 04.06.08	Yes
Dates not provided	Australian Hospitality Review Panel / Consumer Affairs Victoria	Certificate of attendance at Responsible Serving of Alcohol workshop[34]	Not available	Certificate issued 15.09.08	Yes
Dates not provided	Box Hill Institute	Certificate III in Hospitality (Commercial Cookery)[35]	Not available	26.06.09	Yes
02.02.07 – 26.06.09	Box Hill Institute	Diploma of Hospitality Management[36]	28	26.06.09	Yes

[31]    D1, f.64 & 89-90

[32]    D1, f.96

[33]    D1, f.88

[34]    D1, f.63

[35]    D1, f.91-92

[36]    D1, f.56-61, 93-95 & 97

1. However, as discussed with the applicant and his representative at the hearing, the Tribunal is not satisfied that the evidence before it demonstrates that the applicant 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, as required by clause 12 of IMMI 17/058, for the following reasons:

   (i)The Applicant’s Secondary School Studies:

2. On the evidence before it the Tribunal accepts that the Stella Maris Secondary School, Jalan Robertson, in Kuala Lumpur is a secondary education institution in Malaysia.

3. However, the Tribunal is not satisfied that the studies the applicant completed at this institution meet the requirements of clause 12 of IMMI 17/058 for the purposes of paragraph 186.222(b).

4. Although the Tribunal has taken into account the applicant’s oral evidence that he spent three years at the Stella Maris Secondary School in Malaysia, it also notes that there is little in the principal’s letter of support to confirm this claim. Specifically, the principal’s letter simply certifies that the applicant sat for his “Sijil Rendah Penlajaran” in 1989”[37], but it does not indicate the duration of the applicant’s enrolment at this particular institution.

   [37]    D1, f.38

1. More importantly, clause 12 of IMMI 17/058 requires all of the applicant’s secondary school tuition to have been delivered in English (Tribunal emphasis). In this case, the evidence does not support such a finding. For example, the principal’s letter[38] states that the “English language is widely spoken at Stella Maris Secondary School”, but it does not state that all of the tuition in this school is delivered in English.

   [38]    D1, f.38

2. In addition, the Tribunal gives weight to the fact that the applicant’s representative in his submission to the Tribunal did not suggest that all of the tuition at the Stella Maris Secondary School was or is delivered in English. On the contrary, the representative stated:

   …

   The letter from [Principal’s Name], Principal dated 19th October 2016 said that English is widely spoken at Stella Maris Secondary School. [The applicant] confirms that most classes were conducted in Malay. However, this is a different sort of school than most Malay language schools in Malaysia. The Principal confirms that English is widely spoken at the school. This really shows that the school did use a lot of English with the pupils and staff.  Indeed, it is the studies at the school that gave [the applicant] his basic English which he was then later able to improve in Australia. Thus the Tribunal Member may be able to consider this to be an English medium school where sufficient English was used to allow the study years there to be considered to be part of the five year English studies rule.

   …

   All of this really shows that [the applicant] did attend a school where English was very important. [The applicant] says that English was used all over the school, even though officially the classes may have been in Malay. Thus he really believes the attendance at the school should be considered of sufficient English medium quality to be included to make up the balance of the five years of English medium education that [the applicant] needs to complement the three years of English medium study he did in Australia. You already have on file all his studies at Box Hill TAFE in Hospitality (Commercial Cookery III and Diploma) and his successful studies in ESL at Box Hill TAFE. I am also uploading his IELTS test of 5th March 2011 where he did achieve Vocational English.

   I ask that you do accept that [the applicant] does meet the English levels for he and his family to be granted representative in Australia.[39]      

   [Tribunal emphasis]

   [39]    T1, f.33-36 

3. The Tribunal also notes that the applicant confirmed during his oral evidence that the official language at the Stella Maris Secondary School in Kuala Lumpur was Malay, rather than English. Importantly, whilst the applicant stated that English was widely spoken at this school, he did not suggest that all of his tuition at this school had been delivered in English, as required by clause 12 of IMMI 17/058.

4. As a result, the Tribunal is not satisfied that the applicant completed three years of full-time study at the Stella Maris Secondary School, a secondary education institution in Malaysia, where all of the tuition was delivered in English, as claimed.

   (ii)The Applicant’s Studies in Australia:

5. The Tribunal has also considered whether the applicant’s studies in Australia would qualify for the purposes of the class specified in clause 12 of IMMI 17/058. In particular, it notes that whilst the exemption at clause 12 of IMMI 17/058 refers to full-time study in a ‘higher education institution’, this term is not defined in the Act or Regulations.

6. According to the Macquarie Dictionary online the term ‘higher education’ is defined to mean ‘education beyond secondary education’.[40] It also relevantly defines ‘institution’[41] 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.   

   [40]    T1, f.42: See – Accessed 9 November 2017

   [41]    T1, f.43: See – Accessed 9 November 2017

7. As such, the ordinary dictionary meaning of ‘higher education institution’ suggests that a ‘higher education institution’ is an institution that provides education services after secondary school. However, this dictionary-based definition does little to differentiate between the types of institutions that deliver post-secondary school education. 

8. In terms of what kind of institution or provider of education services will constitute a ‘higher education institution’, PAM3 provides the following guidance:

   6.10.2.2   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.

   Note: Even though exempted for visa purposes from the English requirement, these applicants (and any secondary applicants who were 18 or over at the time of application) must still be assessed as to whether they have functional English- refer to Assessment of functional English.

   [Tribunal emphasis]

9. However, as noted previously, departmental policy cannot go beyond the wording of the legislation. As a consequence, whilst the Tribunal accepts that this is a valid starting point for assessing what constitutes study in a higher education institution, it is not finally determinative of the issue.

10. Although the Act and Regulations do not define ‘higher education institution’ for the purposes of the exemption at clause 12 of IMMI 17/058, regulation 1.03 of the Regulations does define ‘Education’ to mean the Department administered by the Education Minister.

11. Importantly, the Department of Education and Training (‘DET’) is responsible on behalf of the Education Minister and the Commonwealth government for the development of world-class systems for Australia in the following areas: child care; school education; higher education; skills and training (vocational education and training); and international education.

12. In doing so, DET has a role in ensuring the quality of services provided in each of these sectors[42] and there is legislation in place to ensure that providers of such services at all levels are registered. Relevantly, for the purposes of the current application for review, the relevant regulatory bodies in existence for this purpose are:

    ·     The Tertiary Education Quality and Standards Agency (‘TEQSA’), which is responsible for the regulation of Australia’s higher education sector, including 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’)[43]; and

    ·     The Australian Skills Quality Authority (‘ASQA’), which is responsible for ensuring a high quality vocational education and training (‘VET’) sector.[44]

    [42]    T1, f.44: See - Accessed 9 November 2017

    [43]    T1, f.45: See - Accessed 9 November 2017

    [44]    T1, f.44: See - Accessed 9 November 2017

13. According to DET, Australia’s higher education system comprises both public and private universities, Australian branches of overseas universities, and other non-university higher education providers, with 92% of students enrolled with universities and a majority of these are enrolled in bachelor degrees.[45]

    [45]    T1, f.46-47: See - Accessed 9 November 2017

14. The TEQSA website reinforces that the Australian higher education system consists of both university and other higher education providers for undergraduate awards upwards from the bachelor level.[46]

    [46]    T1, f.45: See - Accessed 9 November 2017

15. Therefore, unlike the guidelines in PAM3, neither DET nor TEQSA restrict study at a ‘higher education institution’ solely to universities. In other words, both of these agencies indicate that Australia’s higher education system includes ‘non-university higher education providers’. However:

    TEQSA registers and evaluates the performance of higher education providers against the Higher Education Standards Framework - specifically, the Threshold Standards, which all providers must meet in order to enter and remain within Australia’s higher education system.[47]

    [47]    T1, f.45: See and - Accessed 9 November 2017

16. In particular, Part 3 of the TEQSA Act sets out the registration processes for any entity that is (or is seeking to become) a higher education provider. Although the TEQSA Act does not specifically define  ‘higher education institution’, section 5 of this Act defines a ‘higher education provider’ to mean a corporation (including constitutional corporation) that offers or confers a regulated higher education award, which is established under a law of the Commonwealth or Territory. In turn, the TEQSA Act also defines a ‘higher education award’ to be a diploma or higher level qualification under the Australian Qualifications Framework. 

17. As a consequence, not every education institution that provides a post-secondary education service in Australia can claim to be a higher education institution. In other words, those education institutions seeking to provide services in the higher education sector are required to be registered by TEQSA as a higher education provider.  TEQSA maintains a national register for this purpose[48] and DET also maintains a list of higher education institutions.[49] 

    [48]    T1, f.48-51: See - Accessed 9 November 2017

    [49]    T1, f.52-55: Created on 23 August 2016 and last modified on 7 September 2016. See: - Accessed 9 November 2017  

18. Similarly, ASQA is the national regulator for the VET sector under the National Vocational Education and Training Regulator Act 2011 (‘the National VET Act’)[50], which includes registering training providers as ‘registered training organisations’.[51] The details of those registered by ASQA to provide VET services are available from the training.gov.au website[52], which is a joint initiative of the Australian and State and Territory governments.

    [50]    T1, f.56: See & - Accessed 9 November 2017

    [51]    T1, f.57: See - Accessed 9 November 2017

    [52]    T1, f.58: See - Accessed 9 November 2017

19. Information regarding those registered to provide education or training services to international students studying in Australia is available from the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) under the Educational Services for Overseas Students Act 2000.[53]

    [53]    T1, f.59-61: See and - Accessed 9 November 2017

20. Accordingly, for the purposes of clause 12 in IMMI 17/058 the Tribunal has had regard to the ordinary dictionary meaning of the words ‘higher education’ and ‘institution’, the definition of ‘Education’ in regulation 1.03 of the Migration Regulations, the responsibilities of the Minister for Education and DET, TEQSA and ASQA, as well as the policy guidelines in PAM3.

21. 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. In addition, the Tribunal notes that, if the policy intention was to limit the availability of this exemption in clause 12 to only those who had undertaken a bachelor or higher level course of study at a university (or its equivalent), this could easily have been achieved by including a definition of ‘higher education institution’ in IMMI 17/058 to that effect.

22. Accordingly, to the extent that the guidelines in PAM3 suggest that only study at a university level at the undergraduate bachelor or graduate (Masters and/or Doctoral) level can constitute study in a ‘higher education institution’ the Tribunal finds that the policy goes beyond the wording of the legislation and, therefore, there are cogent reasons to depart from it in this respect.

23. As set out in the above table, the applicant has studied a variety of courses in Australia from July 2006 to June 2009 and been issued a range of qualifications certificates from three different post-secondary educational institutions: Box Hill Institute; KJB Occupational Health Services; and the Australian Hospitality Review Panel / Consumer Affairs Victoria.

24. The applicant’s representative argued in his submissions to the Department[54] and the Tribunal[55] that the studies the applicant had undertaken in Australia at Box Hill Institute in terms of his Certificate IV and Diploma qualifications meant that he had completed approximately 2 ½ years of study at a higher education institution in the English medium. At the hearing the applicant and representative confirmed that they were relying upon this evidence, combined with the applicant’s studies at the Stella Maris Secondary School to meet the requirements of clause 12 of IMMI 17/058.

    [54]    D1, f.39-40

    [55]    T1, f.33-37

25. The Tribunal notes that there is little in the evidence to suggest that the food safety procedures, first aid or responsible service of alcohol courses completed by the applicant in 2007 and 2008 were anything other than short courses, and the applicant has not claimed otherwise. 

26. In relation to the applicant’s studies at the Box Hill Institute, according to the TEQSA national register, the Box Hill Institute is currently registered as a higher education provider in Australia.[56] The Tribunal further notes that it also appears on the DET-held list of ‘Higher Education Institutions’ as a non-university approved higher education institution.[57]

    [56]    T1, f.62: See - Accessed 9 November 2017

    [57]    T1, f.54: See - Accessed 9 November 2017

27. In terms of the duration of the applicant’s studies at the Box Hill Institute, the Tribunal has had regard to the letters of completion from this education provider, dated 15 December 2006[58] and 13 August 2009.[59] Specifically, this evidence confirms that the applicant was enrolled in his ‘Certificate IV in ESL (Further Study)’ course from 17 July 2006 to 15 December 2006 and in his ‘Diploma of Hospitality Management’ course (including his certificate III qualification) from 2 February 2007 until 26 June 2009.[60] In addition, based on this evidence, the Tribunal also accepts that the tuition for each of these courses was delivered in English.  

    [58]    D1, f.89

    [59]    D1, f.97

    [60]    D1, f.82-84, 89-90, 118 & 164

28. As a result, the Tribunal finds that the applicant had completed approximately 32 months of full-time study at the Box Hill Institute, a higher education institution, where all of the tuition was delivered in English, at the time of application on 20 October 2016.

    (iii)The Combined Effect of the  Applicant’s Secondary School Studies in Malaysia and his Studies in Australia:

29. As noted previously, the Tribunal is not satisfied that the applicant completed three years of full-time study at the Stella Maris Secondary School, as a secondary education institution in Malaysia for the purposes of the English language exemption in clause 12 of IMMI 17/058, as claimed.

30. On the other hand, the Tribunal accepts that the applicant completed approximately 32 months of full-time study at a higher education institution in Australia, namely the Box Hill Institute, where all of the tuition was delivered in English, at the time of application on 20 October 2016.

31. Accordingly, given these findings, the Tribunal is not satisfied that the applicant had completed five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English at the time he lodged his visa application on 20 October 2016.

32. As a result, the Tribunal finds that the applicant was not a person in a class of persons specified by the Minister in IMMI 17/058, an instrument in writing for the purposes of paragraph 186.222(b) at the time of application.

33. Therefore, the Tribunal finds that the applicant does not meet the requirements of paragraph 186.222(b) and clause 186.222. 

    (b)The Application of Legislative Instrument IMMI 15/083:

34. Further, in the event that the correct interpretation of paragraph 186.222(b) requires it to apply IMMI 15/083, the Tribunal observes that IMMI15/083 specifies at clause 2 two classes of person who are exempt for the purposes of paragraph 186.222(b). These are:

    ·Clause 2:

    Class 1

    Persons who have applied under the Regulations for a visa, and whose earnings will be at least equivalent to the current Australian Taxation Office’s top individual income tax rate.

    ·Clause 4:

    Class 3

    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. 

35. In relation to clause 2 and Class 1 in IMMI 15/083, at the time of the Tribunal’s decision, the current top individual income tax rate set by the Australian Tax Office is $180,001 and over. This was also the rate that applied when the applicant lodged his visa application on 20 October 2016.[61]  

    [61]    T1, f.63: See - Accessed 6 November 2017

36. The applicant gave oral evidence at the hearing that his annual salary was approximately $54,000 and that it had not reached the top income tax rate of $180,001. As a consequence, the Tribunal is satisfied that the applicant did not come within Class 1 of the persons specified in clause 2 of IMMI 15/083 for the purposes of paragraph 186.222(b) at the time of application.

37. As regards clause 4 and Class 3 in IMMI 15/058, apart from some minor changes in relation to the wording of this clause compared to the class of persons listed in clause 12 of IMMI 17/058 for the purposes of paragraph 186.222(b), clause 4 largely reflects what is set out in clause 12 in IMMI 17/058.

1. As a result, and for the reasons set out above, the Tribunal finds that the applicant had not completed five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English at the time he lodged his visa application on 20 October 2016. Therefore, the Tribunal is also satisfied that the applicant is not a person specified in Class 3 of clause 4 in IMMI 15/058.

2. Given the above findings, the Tribunal finds that the applicant was not a person in a class of persons specified by the Minister in IMMI 15/058, an instrument in writing, for the purposes of paragraph 186.222(b) at the time of application.

   Summation:

3. Consequently, given the above findings, the Tribunal is satisfied that at the time of application the applicant was not a person in a class of persons specified by the Minister in an instrument in writing for the purposes of paragraph 186.222(b). Therefore, the Tribunal finds that the applicant does not meet the requirements of paragraph 186.222(b).

   CONCLUSION

4. Accordingly, given the above findings in respect of paragraphs 186.222(a) and (b), the Tribunal finds that the applicant does not meet the requirements of clause 186.222. 

5. 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.

6. To meet clause 186.311 the applicant's spouse and children, the second, third, fourth and fifth-named applicants (the 'secondary applicants'), must be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 186 visa.

7. As the applicant does not satisfy the primary criteria for a subclass 186 visa, the Tribunal finds that the secondary applicants also do not satisfy clause 186.311 and, therefore, the criteria for a subclass 186 visa.

   DECISION

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

   Danica Buljan
   Member