Saranga (Migration)

[2023] AATA 912

Saranga (Migration) [2023] AATA 912 (31 March 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Eliyahu Saranga

Mrs Chaia Shulamit Saranga

REPRESENTATIVE:  Mrs Maree Julia Elliott (MARN: 9902416)

CASE NUMBER:  1932140

HOME AFFAIRS REFERENCE(S):           BCC2018/4366868

MEMBER:  Nicola Findson

DATE:  31 March 2023

PLACE OF DECISION:  Perth

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 31 March 2023 at 9:24am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – position of ICT Project Manager – vocational English – competent English – 5 years full time higher education study delivered in the English language – higher education institution – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.222; r 1.15

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 1 November 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicants applied for the visas on 8 October 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

1. 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.

1. 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 ICT Project Manager (ANZSCO 135112).

1. The delegate refused to grant the visas because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations, because the delegate was not satisfied that the applicant had the required English language proficiency.

1. The Tribunal received an application for review from the applicant on 12 November 2019, which was accompanied by a copy of the delegate’s decision. Subsequently, the applicant and his registered migration agent, provided evidence of the applicant’s educational history, including:

·Academic transcript and testamur from The University of Manchester for the applicant, for a Master of Business Administration completed between November 2002 and October 2003 and taught and examined through the medium of English;

·Certificates of Completion issued to the applicant by Collins Avionics, United States, for courses completed between March 1980 and May 1982, as well as a letter from Collins, dated 2 December 2022, stating that the courses were conducted in English;

·Diplomas awarded by the Israel Aerospace Industries Ltd Training Centre, for avionics studies undertaken by the applicant between 1982 - 1985, and in 1989, 1994 and 1995;

·Certificate of Completion awarded to the applicant by the ATR Training Centre, Toulouse, for studies in Maintenance, Electrics and Avionics between September and October 1998;

·Certificate of Training issued by Airline Maintenance Training Inc, North Carolina USA, to the applicant in respect of a maintenance course in Boeing 757-200 Avionics Systems undertaken in January and February 1995, and a letter from the Head of Maintenance Training stating that all training is conducted in the English language;

·Avionics Training Course Materials, printed in English.

·The applicant’s Curriculum Vitae outlining his relevant education, qualifications, and employment history.

1. In a written submission dated 14 May 2020, the applicant’s representative sets out that the applicant has a long history in the aviation industry, as an Avionics Engineer. It is submitted that the applicant is extensively qualified, having undertaken tertiary studies in Israel to obtain his qualification, as well as many subsequent years’ of higher education studies in the avionics industry, on an assortment of systems and applications, mandated (by the International Civil Aviation Organisation) to be delivered in English. In addition, it is submitted that the applicant has designed and developed avionics systems in both military and civilian aircraft and has provided technical support and training, in English, all over the world.

1. It is submitted that the applicant has completed well over 5 years of full time tertiary / higher education study, in avionics, delivered in the English language, and therefore meets the requirements in cl 186.222(b) and cl 186.222 as a whole.

1. The applicants appeared before the Tribunal on 10 November 2022 to give evidence and present arguments.

1. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. At the hearing, the applicant confirmed his overseas educational history, his Australian migration history, and his continuing employment with his nominating Australian employer.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 legislative instrument IMMI 18/045: cl 186.222. For visa applications made on or after 1 July 2017 the level required is ‘competent English’, as defined in reg

   1.15C of the Regulations.

1. The applicant in this case stated in his visa application that he had not undertaken a specified language test in the three years preceding the visa application and, therefore, had not provided evidence of having achieved a specified score. Nor does the applicant hold a specified passport. So, there is no evidence that he meets the requirements of competent English.

1. Instead, the applicant is claiming to be in a specified class of exempt applicants, specifically a person who has completed at least 5 years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English.

1. The delegate considered the material the applicant provided in support of his application, but found that the applicant had not sufficiently evidenced the completion of higher education, for the purposes of the English language exemption, and therefore, did not meet the requirements of cl 186.222.

1. Whilst the exemption in IMMI 18/045 refers to full-time study in a ‘higher education institution’, this term is not defined in either the Act or Regulations. According to the Macquarie Dictionary online, the term ‘higher education’ is defined to mean ‘education beyond secondary education’. It also defines ‘institution’ 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.

1. The ordinary dictionary meaning of both ‘higher education’ and ‘institution’ suggests that a ‘higher education institution’ is an institution that provides education services after secondary school.

1. For the purposes of interpreting IMMI 18/045, the Tribunal has had regard to the ordinary dictionary meaning of the words ‘higher education’ and ‘institution’ as well as Departmental policy guidelines. The Tribunal notes that neither the dictionary-based definition or policy guidelines, appear to differentiate between the types of institutions that deliver post- secondary school education.

1. The Tribunal has reviewed the significant material provided by the applicant, which was not before the delegate at the time of their decision, and is satisfied that it is genuine and accurate. The Tribunal, therefore, accepts that that the applicant completed a 1 year Master of Business Administration (a higher education qualification) on a full time basis at The University of Manchester between November 2002 and October 2003, for which the medium of instruction was English. In addition, it accepts, on the basis of the written and credible oral evidence before it, that the applicant has completed at least 5 years of full-time study, in the avionics field, at a higher education institute between 1980 and 1998. The Tribunal is also satisfied that the tuition the applicant undertook in avionics was delivered in English.

1. Further, the Tribunal is satisfied that there is nothing in the Regulations or the relevant instrument that limits the applicant’s study, where the tuition provided is in English, to be undertaken in Australia.

1. The Tribunal finds that the applicant has completed at least 5 years of full-time study in a secondary and/or higher education institute where all of the tuition was delivered in English. He therefore falls within the exemption category set out in IMMI 18/045. The Tribunal is satisfied that the applicant meets the exemption category specified for the purposes of

   cl 186.222(b).

1. Therefore, cl 186.222 is met.

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

1. As the second named applicant applied on the basis of being a member of the family unit of the first named applicant, her application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

DECISION

1. 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.

Nicola Findson Member