Singh (Migration)

[2020] AATA 225

Singh (Migration) [2020] AATA 225 (31 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Maninder Singh
Mrs Kulbir Kaur
Master Ajaypal Singh

CASE NUMBER:  1712426

HOME AFFAIRS REFERENCE(S):           BCC2016/4041313

MEMBER:De-Anne Kelly

DATE:31 January 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 31 January 2020 at 3:44pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – English language proficiency  – English test not undertaken within specified period – class of exempted persons – five-year full-time study delivered in English – definition of ‘higher education institution’ – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), rr 1.03, 1.15B, 1.15C; Schedule 2, cl 186.223
Tertiary Education Quality and Standards Agency Act 2011 (Cth)

CASES
Joshi (Migration) [2018] AATA 591

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 and Border Protection on 24 May 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 30 November 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 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 because the applicant did not meet cl.186.222 of Schedule 2 to the Regulations because the applicant had not undertaken an English test within the 36 months immediately before the day on which the application was made and was not in a class of persons that are exempt from the English language criteria.

6. The applicants appeared before the Tribunal on 9 January 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicants meet cl.186.222.

10. The following documents were submitted with the application:

    (a)Application for permanent employer-sponsored or nominated visa dated 30 November 2016.

    (b)Diploma of Management issued by Imperial College Australia with issue date 21 March 2012.

    (c)Certificate IV in Business issued by Imperial College Australia with issue date 22 June 2011.

    (d)Certificate IV in Massage Therapy Practice issued by Imperial College Australia issued 31 May 2010.

    (e)Certificate III in Business issued by Imperial College Australia with issue date 6 December 2010.

    (f)Certificate IV in Business issued by Imperial College Australia with issue date 22 June 2011.

    (g)Diploma of Management issued by Imperial College Australia with issue date 21 March 2012.

    (h)Certificate IV in Hospitality issued by Holmes Institute with issue date 25 February 2011.

    (i)Diploma of Hospitality Management issued by Holmes Institute with commencement date 8 October, 2007 and completion date 25 September 2009.

    (j)Diploma of Information Technology issued by Australian Institute of Technology and Management Pty Ltd issue date 3 June 2013.

    (k)Republic of India passport for Maninder Singh issued 8 August 2011.

    (l)Republic of India passport for the spouse, Kulbir Kaur issued 13 July 2009.

    (m)Republic of India passport for the applicants’ child issued 11 January 2013.

    (n)IELTS test result for the spouse, dated 4 June 2016.

    (o)Hindu marriage register for the applicant and his wife dated 23 January 2010.

    (p)Reference letter from Southern Spice dated 18 November 2016.

    (q)PAYG payment summary for the applicant to 30 June 2015 and 30 June 2016.

    (r)Employment contract and job description for Cook from Southern Spice dated 27 July 2015 and previous contract dated 27 June 2014.

    (s)Matriculation certificate from Punjab School education board dated 1 September 2005 for the applicant and the spouse.

    (t)Additional personal particulars information form 1221 for the applicant and the spouse.

    (u)Birth certificate for the child from Municipal Corporation Amritsar dated 2 November 2010.

    (v)Australian values statement signed by the applicant dated 8 November 2016.

    (w)Police clearance certificate from India for Maninder Singh dated 12 August 2016.

    (x)Police clearance certificate from India for Kulbir Kaur dated 12 August 2016.

    (y)National police certificate from Australia for Kulbir Kaur dated 9 August 2016.

    (z)Submission from solicitor/migration agent dated 8 January 2020.

    (aa)Submission from solicitor/migration agent dated 22 January 2020.

    (bb)ASQA webpage.

    (cc)ASQA webpage showing CRICOS details.

11. The Tribunal has carefully accounted for all documents by comparing the paper-based file to the list above, by comparing the electronic file of documents to the list above and by opening each electronic document file to ensure that all attachments are recorded in the list above. The Tribunal is satisfied that all documents have been properly accounted for and included in the list above. The Tribunal has carefully considered all documents.

    English language proficiency

12. 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 15/083. 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.

13. The relevant legislation and instruments are as follows. Clause 186.222 provides as follows:

    At 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.

14. ‘Vocational English’ is defined in r.1.15B and ‘competent English’ is defined in r.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.

15. In this instance, having regard to the date of visa application, the required level is vocational English that is found in Regulation 1.15B as follows:

    (1) A person has vocational English if:

    (a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

    (b) the person is an applicant for a visa; and

    (ba) for a person who was invited by the Minister under these Regulations, in writing, to apply for the visa — the test was conducted in the 3 years immediately before the date of the invitation; and

    (bb) for a person to whom paragraph (ba) does not apply — the test was conducted in the 3 years immediately before the day on which the application was made; and

    (c) the person achieved a score specified in the instrument.

    (2) A person also has vocational English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

16. The relevant instrument referred to in r.1.15B is IMMI 15/005 which provides in paragraph 4:

    SPECIFY, for applications lodged on or after 1 January 2015, tests, test scores and passports as follows:
    A. for paragraph 1.15B(1)(a), the following language tests:
    i. an International English Language Test System (IELTS) test; or
    ii. an Occupational English Test (OET); or
    iii. a Test of English as a Foreign Language internet-based Test (TOEFL iBT); or
    iv. a Pearson Test of English Academic (PTE Academic).
    B. for paragraph 1.15B(1)(c), the following test scores:
    i. an IELTS test score of at least 5 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: 14 for speaking, 4 for reading, 14 for writing and 4 for listening; or
    iv. a PTE Academic test score of at least 36 in each of the four test components of speaking, reading, writing and listening.
    C. for subregulation 1.15B(2), a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland, to a citizen of that country.

17. The applicant advised at the hearing that he had not undertaken a language test specified by the Minister in the three years immediately before the date of the application. He holds an Indian passport which is not a type specified by the Minister in writing in IMMI 15/005 as meeting the criteria for having vocational English.

18. The applicant claims that he is in a class of persons specified by the Minister in the instrument. The applicant’s migration agent raised in his submission in reference to Joshi (Migration) [2018] AATA 591 (10 January 2018) the question as to whether the specified instrument is IMMI 15/083 or IMMI 17/058.

19. The applicant claims to be in class 3 of persons in Paragraph 4 of IMMI15/083 that provides as follows;

    4.  SPECIFY the following class of persons for the purpose of paragraphs 186.222(b) and 187.222(b) of the Regulations:

    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.

20. Alternatively, the applicant claims to meet paragraph 12 of IMMI17/058 which provides as follows;

    12   Subclass 186 applicants (Temporary Residence Transition stream) and Subclass 187 applicants (Temporary Residence Transition stream) who are not required to satisfy the Minister that they have ‘vocational English’ (for applications before 1 July 2017) or ‘competent English’ (for applications on or after 1 July 2017)

    For the purposes of paragraphs 186.222(b) and 187.222(b) of the Regulations, the following class of persons is specified:

    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.

    It is noted that IMMI17/058 has no other exemptions for English language than that contained in paragraph 12 as all the other paragraphs relate to exemptions for age, skill levels and other visa classes beyond the subclass 186, which is the subject of this visa application.

21. IMMI 17/058 states ‘this instrument applies to applications for Subclass 186 and Subclass 187 visas… made before 1 July 2017 and not finally determined by that date’. This instrument applies to a Subclass 186 visa application, that was made before 1 July 2017 and not determined by that date such as the current application made on 30 November 2016. The Tribunal considers IMMI 17/058 is the appropriate instrument and the wording the applicant is relying upon for his argument for exemption is the same in both instruments. As the applicant’s registered migration agent observed in their submission of 8 January 2020 the wording that the applicant is relying upon is similar in both instruments and provides as follows:

    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.

22. For completeness the Tribunal will consider the other exemptions in IMMI15/083 which are as follows;

    Class 1 – Persons whose earnings will be at least equivalent to the current Australian tax offices top individual income tax rate which at the time was $180,001 per annum. An employment contract dated 27 of June 2014 shows the applicant working as a cook on a salary of $53,900 per annum. The Tribunal considers the applicant is not a person in the class 1 exemption.

    Class 2 - Persons who hold subclass 444 or subclass 461 visas. These visas are granted to New Zealand citizens and family members and the Tribunal notes that the applicant is an Indian citizen and therefore not a person in the class 2 exemption.

    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.

    The applicant claims he is a person in this class 3 exemption and the Tribunal will consider this later in the decision.

    Class 4 & Class 5 - Persons who are employed in certain occupations such as researchers, scientists and technical specialists and academics to occupy positions in Australian universities. The applicant is working as a cook and not in these occupations and is therefore is not a person in the class 4 exemption.

    Class 6 – Persons working as medical practitioners and since the applicant is working as a cook he is therefore not a person in the class 6 exemption.

    Class 7 - Persons who hold subclass 444 and subclass 461 visas and have been working as medical practitioners. These visa subclasses are granted to New Zealand citizens and their families and it is noted that the applicant is a citizen of India and has not worked as a medical practitioner and is therefore not a person in the class 7 exemption.

23. The Tribunal enquired as to whether the applicant had five years full-time study in his secondary education where all the tuition was delivered in English. While the secondary education documents submitted, namely, ‘Matriculation certificate’ from Punjab School education board dated 1 September, 2005 for Maninder Singh did not indicate that English was the medium of instruction, there was some confusion on the part of the applicant as to the question raised by the Tribunal. The migration agent clarified that the applicant has studied a single subject, which was ‘English language’ and the remainder of his subjects were not delivered in the medium of English. As a result the Tribunal found that the applicant was not a person who had completed at least five years of full-time study in a secondary education institution where all of the tuition was delivered in English.

24. The Tribunal considered the remaining criteria for meeting paragraph 4 of the instrument namely whether the applicant was a person who had completed at least five years of full-time study in a higher education institution where all of the tuition was delivered in English.

25. The applicant listed the following qualifications in his online application to the Department in the original application dated 30 November 2016. This evidence of previous studies in Australia was to demonstrate that he is one of the classes of persons mentioned in IMMI 15/083 to satisfy cl.186.222(b).

    Diploma of Hospitality Management from 8 October 2007 to 28 September 2009 – Holmes Institute Pty Ltd

    Certificate IV in Hospitality (Commercial Cookery) from 8 October 2008 to 25 September 2009 – Holmes Institute Pty Ltd

    Certificate III in Business from 19 July 2010 to 6 December 2010 – Colleagues Australia International Pty Ltd trading as Imperial College Australia

    Certificate IV in Business from 10 January 2011 to 22 June 2011 – Colleagues Australia International Pty Ltd trading as Imperial College Australia

    Diploma of Management from 25 July 2011 to 21 March 2012 – Colleagues Australia International Pty Ltd trading as Imperial College Australia

    Certificate IV in Massage Therapy Practice from 11 Jan 2010 to 31 May 2010 – Colleagues Australia International Pty Ltd trading as Imperial College Australia

    Diploma of Information Technology from 14 May 2012 to 17 May 2013 – Australian Institute of Technology and Management Pty Ltd

26. The delegate of the Minister in his refusal notification of the 24 May 2017 lists a further qualification namely Advanced Diploma of Information Technology from 8 July 2013 to 11 July 2014 – Australian Institute of Technology and Management Pty Ltd. The Tribunal was not provided a copy of such a qualification by the applicant; it was not listed by the applicant in the online lodgement of the visa application and no reference to it was made by the applicant’s migration agent in his submissions. The Tribunal therefore gives the reference to this qualification no weight and will not consider it further. It is noted that even if the Tribunal had considered this qualification for reasons that are explained below it would not have made a material difference to the decision reached by the Tribunal.

27. The delegate of the Minister assessed that the studies amounted to approximately 1850 days or more than five years but for the following reasons could not count the total towards satisfying the requirements.

28. The delegate only included in the calculation those courses that were studied with a provider that is or has been registered with the Department of Education and Training (DET) or the Tertiary Education Quality Standards Agency (TEQSA) as an Australian higher education institution. The delegate noted none of the providers have been registered as a university however the Holmes Institute Pty Ltd has been registered as a non-university higher education institution. The delegate further noted that neither Colleges Australia International Pty Ltd [CRICOS code 03000J] (trading as Imperial College Australia) nor Australian Institute of Technology and Management Pty Ltd [CRICOS code 03202K] have been registered with DET or TEQSA as an Australian higher education institution.

29. As a result, the delegate calculated the applicant had demonstrated to have studied at a higher education institution for approximately 710 days, having only included those studies with Holmes Institute Pty Ltd [CRICOS code 02727M]. The delegate found that the applicant had not shown he had completed five years of full-time study in a secondary and/or higher education institution where all the tuition was delivered in English and therefore the applicant was not in the classes of persons specified in the relevant instrument for cl.186.222(b).

30. The applicant’s migration agent in a submission dated 8 January 2020 relied upon Joshi (Migration) [2018] AATA 591 (10 January 2018) in which the presiding member found in favour of the review applicant on the basis that senior secondary level studies undertaken in India and Nepal were conducted in the medium of English. The member found this met the requirements of cl.186.222(b) and thus satisfied cl.12 of, in that case, IMMI 17/058 (see paragraphs 58 and 59 of the case).

31. The applicant’s migration agent argued that since the presiding member in the Joshi case accepted that secondary level education completed overseas, satisfied the requirement under the applicable instrument, whether IMMI 15/083 or IMMI 17/058, it was respectfully submitted that the applicant, ‘having completed a similar and indeed higher qualification in Australian education institutions should be considered as having met the requirements specified in the instrument IMMI 15/083 and thus satisfying the requirements of cl.186.222(b).’ The Tribunal will consider this submission in detail later in the decision.

1. The Tribunal is bound to consider the actual wording of the instrument, which is ‘higher education institution’ rather than Australian education institution(s) as submitted by the applicant’s migration agent.

2. ‘Higher education institution’ is not defined in the Regulations however ‘education’ is defined in r.1.03: ‘Education means the Department administered by the Education Minister’. The Education Minister is the responsible minister for the Department of Education that has a range of responsibilities including administering the higher education system through TEQSA and the vocational education and training sector through the Australian Skills Quality Authority (ASQA).

3. TEQSA was established under the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) and provides for the following:

   ·national consistency in the regulation of higher education

   ·regulation of higher education using a standards-based quality framework and principles relating to regulatory necessity, risk and proportionality

   ·protecting and enhancing Australia’s reputation for, and international competiveness in higher education, as well as the excellence, diversity and innovation in Australian higher education

   ·encouraging and promoting a higher education system that is appropriate to meet Australia’s social and economic needs for a highly educated and skilled population

   ·protecting students undertaking, or proposing to undertake higher education by requiring the provision of quality higher education

   ·ensuring that students have access to information relating to higher education in Australia.

4. Providers that wish to gain entry to and continue operations within Australia’s higher education sector must meet the requirements of The Higher Education Standards Framework (Threshold Standards) Act 2015. TEQSA maintains a National Register of Higher Education Providers that can be searched from their website.

5. The Tribunal considers that since ‘education’ is defined in the Regulations as the department administered by the Education Minister, the TEQSA Act is administered by the Education Minister and their department and therefore it is reasonable that the requirements in that Act are taken as the standards in all references to education in other spheres of federal government, including immigration and border control. This is implicit in the first dot point in paragraph 28 above, namely ‘national consistency in the regulation of higher education’.

6. The Tribunal will now consider the quality framework administered by the Education Minister and their department and the definitions established by the TEQSA Act.

   A simplified outline of the TEQSA Act states:

   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 Australian universities registered in the Australian university provider category) are authorised to self-accredit their courses of study.

   •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.

7. The TEQSA Act defines ‘higher education provider’ and ‘higher education award’:

   higher education provider means:

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

   higher education award means:

   (a) a diploma, advanced diploma, associate degree, bachelor degree, 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 Australian Qualifications 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. (Emphasis added.)

8. The Tribunal considers based on the definitions in the TEQSA Act that the Education Minister establishes the quality framework and TEQSA administers the standards such that an entity must be registered to confer regulated higher education awards. Those who confer regulated higher education awards are ‘higher education providers’. The Tribunal needs to consider if a ‘higher education provider,’ is also a ‘higher education institution’ as required in IMMI 15/083. The online Oxford dictionary defines ‘institution’ as ‘an organisation founded for a[n] …educational, … or social purpose’ while ‘provider’ is defined as ‘a person or thing that provides something’. This is not definitive. Returning to the original definition of education in r.1.03 of the Regulations it is clear that references to education mean the department administered by the Education Minister and any institution, organisation or provider of higher education services are subject to the national standards established by the Education Minister and the regulatory framework in the TEQSA Act. The Tribunal considers it is reasonable to equate ‘higher education provider’ as defined in the TEQSA Act with ‘higher education institution’ in IMMI 15/083.

9. A search of the National Register of Higher Education Providers on the TEQSA website finds the Holmes Institute Pty Ltd is registered with a renewal date of 6 February 2021. No results were found for Colleges Australia International Pty Ltd trading as Imperial College Australia and Australian Institute of Technology and Management Pty Ltd so they are not higher education providers or higher education institutions as defined in the TEQSA Act administered by the Education Minister. Since they are not higher education providers or higher education institutions, they cannot confer regulated higher education awards. The awards received by the applicant from Imperial College Australia and Australian Institute of Technology and Management Pty Ltd are not higher education awards. The years of full-time study that the applicant undertook with Imperial College Australia and Australian Institute of Technology and Management Pty Ltd where the tuition was delivered in English were not undertaken in a higher education institution and cannot count towards meeting paragraph 4 in IMMI 15/083.

10. The Tribunal notes that a Certificate IV is not a ‘higher education award’ as defined in the TEQSA Act and cannot be counted as an award conferred by a ‘higher education provider’ or ‘higher education institution’ and therefore the Certificate IV in Hospitality (Commercial Cookery) from Holmes Institute Pty Ltd cannot be assessed as meeting IMMI 15/083.

11. As such, it is only the Diploma of Hospitality Management from 8 October 2007 to 28 September 2009 or two years of full-time study awarded by registered higher education provider, Holmes Institute Pty Ltd to the applicant that can be counted towards meeting IMMI 15/083.

12. For completeness the delegate of the Minister in the original “Notification of Refusal’ did count the Certificate IV from Holmes Institute Pty Ltd as meeting the instrument. If the Tribunal included this Certificate IV it would add an additional one year to make a total of three years of full time study in a higher education institution where all the tuition was delivered in English and would not make a material difference to the Tribunals decision.

13. The Tribunal finds that the applicant is a person who has completed two years of full-time study in a higher education institution, Holmes Institute Pty Ltd registered by TEQSA where all of the tuition was delivered in English.

14. The applicant’s migration agent submits that since the presiding member in the Joshi case accepted that secondary level education completed overseas, satisfied the requirement under the applicable instrument, whether IMMI 15/083 or IMMI 17/058, it was respectfully submitted that the applicant, ‘having completed a similar and indeed higher qualification in Australian education institutions should be considered as having met the requirements specified in the instrument IMMI 15/083 and thus satisfying the requirements of cl.186.222(b).’ The applicant’s migration agent submits that the circumstances in Joshi are similar and the Tribunal should decide in favour of the applicant.

15. The Tribunal considered this submission and finds that in Joshi the applicant had five years’ full-time secondary education tuition in India and Nepal that was delivered in English. The applicant in this case has no full-time secondary tuition delivered in English and only two years of full-time tuition in a higher education institution delivered in English so the circumstances are not similar and the Tribunal does not accept this argument.

16. The Tribunal for the reasons given above does not accept that the qualifications obtained by the applicant except for the Diploma of Hospitality Management awarded by Holmes Institute Pty Ltd meet the definition of higher education provider as defined in the TEQSA Act administered by the Education Minister and therefore they do not meet IMMI 15/083.

17. The migration agent in the hearing argued similarly that there is an anomaly in the instrument IMMI 15/083 in paragraph 4 since five years of full-time study in a secondary institution overseas is supposedly not comparable to five years of full-time study in an Australian education institution where standards could be expected to be higher for English. Even if there were an anomaly in the instrument, it is a matter for the Parliament. The Tribunal has found that ‘Australian education institution’ as referred to in the migration agent’s submission does not mean it is a registered higher education provider or institution under the TEQSA Act and meets the requirements of the Minister for Education.

18. The applicant’s migration agent further submitted on 8 January 2020 that the applicant has been granted a Subclass 457 visa by the Department based on the same evidence as provided for in the present Subclass 186 application and it would be unreasonable and unfair that one delegate would accept evidence that the Tribunal might reject. The 457 visa is a temporary working visa while the 186 visa is a permanent residency visa and each have their own statutory point in time requirements. The Tribunal does not accept that using evidence to meet the criteria for one visa subclass entitles the applicant to argue that the same evidence should enable them to meet the criteria for an unrelated visa subclass when that evidence does not meet the relevant instrument, namely IMMI 15/083.

19. The applicant’s migration agent made a further submission on 22 January 2020 which relied upon the definition in r.1.15F(2) which states ‘diploma’ has the meaning given in r.2.26AC(6):

    Diploma means (a) an associate diploma, or a diploma, within the meaning of the register of Australian tertiary education (as current on 1 July, 1999), that is awarded by a body authorised to award diplomas of those kind; or (b) a diploma, or an advanced diploma, under the Australian qualifications framework, it is awarded by body authorised to award diplomas of those kinds.

20. The submission states that both Australian Institute of Technology and Management Pty Ltd and Colleges Australia International were registered by ASQA which is a government regulating body, and whose role as the national vocational education and training regulator is to accredit courses that may be delivered by registered training organisations (RTOs). This submission goes on to say most international students who come to study in Australia were enrolled with these providers and that these two colleges provide higher education courses within the meaning of cl.500.111 of Schedule 2 of the Regulations which provides:

    higher education course means a course of study leading to the award of any of the following

    (a)   diploma (higher education);

    (b)   an advanced diploma (higher education).

21. This submission states that since a diploma qualification is a higher education course as defined in cl.500.111 of Schedule 2 of the Regulations and the applicant was awarded courses leading to a diploma by a body authorised to award diplomas as referred to in the definition of diploma in Division 2.6 of the Regulations, then it follows that the applicant has completed five years of full-time study and all of the tuition was delivered in English and that he meets cl.186.222(b).

22. The applicant’s migration agent has misinterpreted the definition in cl.500.111 that does not state a higher education course means a course of study leading to the award of a diploma but rather leading to the award of a diploma (higher education) (Emphasis added). There is a caveat in the definition such that the diploma must be a higher education diploma not just a diploma award. This is consistent with the definition in the TEQSA Act of higher educational award meaning:

    (a)   a diploma… Other than an award offered or conferred for the completion of a vocational education and training course.

23. ASQA is the Minister for Education’s national regulator for the vocational education and training (VET) sector and oversees the Commonwealth register of institutions and courses for overseas students (CRICOS) providers. If Australian Institute of Technology and Management Pty Ltd and Colleges Australia International were registered by ASQA they would be part of the VET sector and may well be able to confer awards such as diplomas but not diplomas in the higher education sector. The webpages provided by the applicant confirm that CRICOS is regulated by ASQA and covers the national vocational education and training sector.

24. The applicant’s migration agent has conflated diplomas conferred by the VET sector regulated by ASQA and higher education diplomas conferred by higher education institutions regulated by TEQSA.

25. The Tribunal considers that the applicant’s awards from the Australian Institute of Technology and Management Pty Ltd and Colleges Australia International are conferred by VET colleges regulated by ASQA and are not higher education awards conferred by a higher education institution or provider and as such do not comply with IMMI 15/083.

26. The Tribunal finds that the applicant is a person who has completed two years of full-time study in a higher education institution, Holmes Institute Pty Ltd registered by TEQSA where all of the tuition was delivered in English.

27. The applicant is not 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. The applicant at the time of application did not have vocational English and was not a person in a class of persons specified by the Minister in instrument IMMI 15/083.

28. Therefore, cl.186.222 is not met.

29. 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.

    Secondary applicants

30. Mrs Kulbir Kaur and Master Ajaypal Singh 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. On 12 May 2017, 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.

31. Mrs Kulbir Kaur and Master Ajaypal Singh made a combined application with the primary applicant and applied as the spouse and child and therefore members of the family unit of the primary applicant Mr Maninder Singh. However, the Tribunal has affirmed the decision not to grant the primary applicant, an Employer Nomination (Permanent) (Class EN) (Subclass 186) visa. Therefore, Mr Maninder Singh is not a person who holds a Subclass 186 visa. The secondary applicants are members of the family unit of the primary applicant, who does not hold a Subclass 186 visa. Mrs Kulbir Kaur and Master Ajaypal Singh therefore do not satisfy cl.186.311.

32. The secondary applicants do not meet cl.186.311 and the Tribunal affirms the decision not to grant Mrs Kulbir Kaur and Master Ajaypal Singh Subclass 186 visas.

    Other matters

33. The Tribunal took a number of measures to ensure that the interpretation at hearing was as accurate as possible. A certified NAATI interpreter was used during the hearing and the Tribunal asked the applicant on several occasions if he could understand the interpreter. The Tribunal repeated questions, rephrased and checked its understanding of the applicants evidence and invited the applicant and his migration agent to advise if any difficulties arose. The Tribunal is satisfied that there has been adequate interpretation and there has been no misunderstanding or misinterpretation in relation to the significant issues canvassed at hearing and referred to in these Reasons.

    DECISION

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

    De-Anne Kelly
    Member