Santoso (Migration)

[2023] AATA 910

Santoso (Migration) [2023] AATA 910 (20 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hermawan Santoso
Mrs Valayntina Sichilya Soenarto
Mr Aldy

CASE NUMBER:  1934537

HOME AFFAIRS REFERENCE(S):          BCC2019/4351462

MEMBER:De-Anne Kelly

DATE:20 February 2023

PLACE OF DECISION:  Brisbane

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 20 February 2023 at 12:03pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Motor Mechanic – English language proficiency – competent English – IMMI 18/045 – exemption – minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English – Certificate courses – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.222, 186.311
Tertiary Education Quality and Standards Agency Act 2011

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 4 December 2019 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 31 August 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 (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Motor Mechanic.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because at the time of application the applicant had not demonstrated that she had competent English or was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

6. The applicants appeared before the Tribunal on 23 November 2022 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfies cl.186.222 which provides as follows.

   At the time of application, the applicant:
   (a) had competent English; or
   (b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

   English language proficiency

9. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have competent English or be in a class of persons specified in legislative instrument IMMI 18/045.

10. 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.

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

12. 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.

13. The applicant is seeking to satisfy IMMI 18/045 which provides exemptions to the ‘vocational English’ or ‘competent English’ requirement for applicants for a Subclass 186 visa or Subclass 187 visa, as below.

    For the purposes of paragraphs 186.222(b) and 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.

14. It is noted that the Oxford English Dictionary Online defines institution and provider as follows,

    “Institution” - The action of instituting or establishing; setting on foot or in operation; foundation; ordainment; the fact of being instituted

    “Provider” - A person who or thing which provides or supplies something.

15. It seems that an institution is instituted and “in operation” in this case for higher education and could reasonably be said to be a providing or supplying higher education as a provider.

    IMMI 18/045

16. Education is a joint state and federal government responsibility with the Federal Minister for Education overseeing the higher education sector through the Tertiary Education Quality and Standards Agency TESQA Act 2011 which established TESQA the Tertiary Education Quality and Standards Agency as an independent quality assurance and regulatory agency for the higher education sector. Likewise, the Federal Minister has similar oversight of the Vocational Education sector through the Australian Skills Quality Authority ASQA which is governed by the National Vocational Education and Training Regulator Act 2011.

17. The following is a simplified outline of the Tertiary Education Quality and Standards Agency Act 2011

    An entity must be registered before it can offer or confer any of the following awards (regulated higher education awards):

    (a)     Australian higher education awards;

    (b)     overseas higher education awards, if those awards relate to courses of study provided at Australian premises.

    •      Registered higher education providers must have their courses of study accredited before those courses can be provided in connection with regulated higher education awards. Some providers (including those providers registered in the “Australian University” provider category) are authorised to self‑accredit some or all of their courses of study.

    •      The Tertiary Education Quality and Standards Agency (TEQSA) registers providers and accredits courses of study. TEQSA regulates higher education using principles relating to regulatory necessity, risk and proportionality, and using a standards‑based quality framework.

    •      That quality framework is a series of standards made by the Minister on the advice of the Higher Education Standards Panel.

18. The TESQA Act defines a higher education provider or higher education institution as one which confers a regulated higher education award.

    "higher education provider" means:

    (a)a constitutional corporation that offers or confers a regulated higher educationaward; or

    (b)  a corporation that:
                 (i)  offers or confers a regulated higher education award; and

    (ii)  is established by or under a law of the Commonwealth or a Territory; or

    (b)a person who offers or confers a regulated higher education award for the  completion of a course of study provided wholly or partly in a Territory.

19. The Explanatory Statement which accompanied the introduction of cl.186.222 refers to an invitation for submissions on policy settings in relation to age, skill level and English language proficiency and opportunities for greater synergy between the permanent and temporary employer sponsored visas. Over 60 submissions were received, and the Explanatory Statement advises that the submissions and outcomes of discussions with stakeholders were taken into account in developing the amending Regulation. There is a further discussion paper,” Review of the Permanent Employer Sponsored Visa Categories Discussion Paper”  dated August 2011, which refers to changes from 1 July 2012. In this discussion paper it makes specific reference to the Australian Qualifications Framework AQF as defining educational awards for the Permanent Employer Sponsored 186 and 187 visa subclasses as well as others.

20. The Tertiary Education Quality and Standards Agency TESQA Act 2011, extract shown below, defines a higher education award as starting at Diploma and finishing at Higher Doctoral degree on the scale of 5 to 10 of the Australian Qualifications Framework and excludes awards for vocation education and training courses. These awards must be regulated and approved by TESQA.

    "higher education award" means:

    (a)  a diploma, advanced diploma, associate degree, bachelor degree, undergraduate certificate, graduate certificate, graduate diploma, masters degree or doctoral degree; or

    (b)  a qualification covered by level 5, 6, 7, 8, 9 or 10 of the AustralianQualifications Framework; or

    (c)  an award of a similar kind, or represented as being of a similar kind, to any of     the above awards;

    other than an award offered or conferred for the completion of a vocational education and training course.

21. The TESQA website has tabled the AQF higher education award categories as below

AQF level	Qualification	Degree level	Regulatory responsibility
10	Higher Doctoral Degree	Postgraduate	TEQSA
10	Doctoral Degree	Postgraduate	TEQSA
9	Masters Degree (Research)	Postgraduate	TEQSA
9	Masters Degree (Coursework)	Postgraduate	TEQSA
9	Masters Degree (Extended)	Postgraduate	TEQSA
8	Graduate Diploma	Postgraduate	TEQSA
8	Graduate Certificate	Postgraduate	TEQSA
8	Bachelor Honours Degree	Undergraduate	TEQSA
7	Bachelor Degree	Undergraduate	TEQSA
6	Associate Degree	Undergraduate	TEQSA/ASQA
6	Advanced Diploma	Undergraduate	TEQSA/ASQA
5	Diploma	Undergraduate	TEQSA/ASQA

1. The applicant confirmed during the hearing that he had not attained the relevant English test with the prescribed result in the three years prior to lodging the visa application and his passport was from Indonesia and hence was not a prescribed passport from an English-speaking country.

2. He has sat various English tests more than 20 times however his employer has spoken about his exceptional skills as Motor Mechanic and his ability to mentor young mechanics in the workplace, so it seems that his English is at a standard that allows him to work effectively and contribute to the community and his work colleagues. His employer relies upon the applicant highly and his skills as a Motor mechanic have allowed the business to expand and reach a high level of customer service.

3. It is not possible for the Tribunal to consider the post hearing English tests that that applicant has undertaken as these are not “at time of application “.

4. He is seeking an Exemption at the time of application under IMMI 18/045

   Applicant qualifications and IMMI 18/045

5. The applicant provided the following qualifications which he is relying upon to satisfy IMMI 18/045.

Course	Study Period	Years
Cert III Auto Mech Tech	18 Jul 2011 - 29 Jun 2012
Cert IV Auto Tech	13 May 2013 - 1 Nov 2013
Diploma Auto Management	22 Jul 2012 30 Apr 2014	2.50
Diploma Business	10 Jul 2014 - 26 May 2015	1.00
Advanced Diploma Business	10 Apr 2015 - 26 Jun 2016	1.00
Advanced Diploma Leadership & Management	15 Oct 2018 - 15 Aug 2019	1.00

1. The Tribunal has noted that the Certificate III and IV awards while not of themselves being undertaken at a higher education institution since that are not on the AQF framework of level 5 to 10 courses were an integral part of obtaining the Diploma of Automotive Management since the applicant would not have been awarded the Diploma without these subjects successfully undertaken and completed. It is reasonable therefore to consider them pre-requisites and part of the award of the Diploma qualification.

2. The applicant has completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English.

3. Accordingly, the applicant satisfies IMMI18/045 and therefore, cl 186.222 is met.

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

5. Mrs Valayntina Sichilya Soenarto and Mr Aldy were secondary applicants on the application for Employer Nomination (Permanent) (Class EN) visas (Subclass 186) and sought to satisfy cl.186.311 of Schedule 2 to the Regulations. A delegate of the Minister refused the visa application of the secondary applicants on the basis they did not satisfy cl.186.311. This clause provides as below. The secondary applicants lodged an application with the Tribunal to review the decision to refuse the Visa application.

   186.311

   The applicant:

   (a) is a member of the family unit of a person (the primary applicant) who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

   (b) made a combined application with the primary applicant.

6. Because the primary visa applicant’s Subclass 186 visa application was refused, the secondary visa applicants were members of the family unit of a person who did not hold a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

7. The Tribunal considered the appropriate course was to remit the primary visa applicant’s visa application to the Minister to reconsider the remaining criteria for the visa. The Tribunal considers it is the appropriate course to remit the secondary applicants visa applications to the Minister.

   DECISION

8. 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.

   De-Anne Kelly
   Member