Singh (Migration)

[2019] AATA 1672

Singh (Migration) [2019] AATA 1672 (1 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Navdeep Singh

CASE NUMBER:  1807834

HOME AFFAIRS REFERENCE(S):           BCC2017/3533678

MEMBER:Alison Mercer

DATE:1 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the 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 01 February 2019 at 2:58pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – demonstrate competent English – interpretation of post-secondary and higher education institutes – level of English language accumulated – 5 years of full time secondary study in India at secondary education institutions delivered in English – decision  under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, rr 1.03, 1.15, cl 186.222
National Vocational Education and Training Regulator Act 2011(Cth)
Tertiary Education Quality and Standards Agency Act 2011

CASES
Project Blue Sky v Australian Broadcasting Association [1998] HCA 28
Saeed v Minister for Immigration and Citizenship [2010] HCA 23

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 6 March 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2.       The applicant applied for the visa on 27 September 2017. 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 applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Painting Trades Worker.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.222 of Schedule 2 to the Regulations, which requires that at the time of application, the applicant demonstrated that he had the required English proficiency in one of several specified ways, or was exempt from having to do so. The delegate noted that the applicant had to demonstrate that he had competent English the time of his visa application by having undertaken a specified English test in the specified period or holding a specified passport. He found that the applicant had undertaken an International English Language Testing System (IELTS) test on 22 April 2014 but that this could not be taken into account as it was undertaken outside the specified period of 3 years immediately before his visa application was made. The delegate further found that the applicant did not hold a specified passport and therefore considered whether he was exempt from having to meet cl.186.222.

6. The delegate noted that the specified exemption category for these purposes (cl.186.222(b)) applied if the applicant had undertaken at least 5 years of secondary and/or higher education on a full time basis for which the medium of instruction was English. The delegate found that the applicant claimed to have undertaken a Certificate III in Painting and Decoration in Australia between 19 November 2012 and 22 December 2013 and an earlier Certificate III in the same area between 9 July 2012 and 18 November 2012, this did not equate to 5 years of study. The delegate further found that although the applicant claimed to have undertaken a Certificate IV in Business between 12 April 2010 and 8 October 2010 and a Diploma of Business Management between 11 October 2010 and 8 April 2011 in English while in Australia, he did not provide any documentary evidence to substantiate this. The delegate therefore did not accept that the applicant was exempt for the purposes of cl.186.222(b) and found he did not satisfy cl.186.222 as a whole.

7.       The Tribunal received a review application from the applicant on 22 March 2018. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Yusheng Lou, as his representative and authorised recipient for correspondence.  The applicant also provided the following documents:

·letter of completion for a Certificate III in Painting and Decoration undertaken in Australia between 19 November 2012 and 22 December 2013 [13 months];

·letter of completion for Certificate IV in Business undertaken in Australia between 12 April 2010 and 8 October 2010 [approximately 6 months];

·Certificate III in Printing and Graphic Arts undertaken in Australia between 13 April 2009 and 9 April 2010 [approximately 12 months];

·Diploma of Management undertaken in Australia between 11 October 2010 and 8 April 2011 [approximately 6 months];

·Certificates of Central Board of Secondary Education indicating that the applicant completed his Secondary School Examination in 2006 and his Senior School Certificate Examination in 2008, both at the Maharaja R S Police Public School in Phillaur, Jalandhar.

8.       Subsequently, the applicant’s agent provided the following documents:

·letter dated 6 April 2018 stating that the applicant attended Dav Public School between 2005 and 2006 and that the medium of instruction was English; and

·letter dated 8 April 2018 stating that the applicant attended for the academic 2006-7 and 2007-8 on a fulltime basis and that the medium of instruction was English.

9.       The applicant appeared before the Tribunal on 18 July 2018 to give evidence and present arguments, together with his agent.

10.    The applicant said that he gave all the documents concerning his study in Australia and overseas that was conducted in English to his agent, but for some reason, his agent did not provide them to the Department with the visa application, he only provided one Certificate III document and an expired International English Language Testing System (IELTS) test that the applicant had done more than 3 years before he made the subclass 186 visa application. He noted that he listed all his education in his form 80, however. The applicant further stated that his agent told him that he did not have to do an International English Language Testing System (IELTS) test because he had over 5 years of secondary and higher education study conducted in English. The Tribunal noted that it appeared, if it accepted the documentary evidence he provided, that he had undertaken approximately 37 months of post-secondary study in Australia, where the medium of instruction was English, but this fell short of the 5 years required to fall within the exemption category. The applicant said that he was relying on his secondary schooling in India to make up the balance of the 5 years required, all of which was conducted in English.

11. On 1 October 2018, the Tribunal wrote to the applicant to advise that since the hearing, the Presiding Member had identified a new issue that was not discussed with the applicant at the hearing, and therefore the Tribunal was therefore inviting the applicant to another hearing on 26 October 2018. The Tribunal noted that the applicant sought to meet cl.186.222 by falling within the exemption category for cl.186.222(b) set out in item 12 of IMMI 17/058 for ‘persons who have 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.’ The Tribunal further noted that the applicant appeared to be relying on his secondary schooling in India and his studies in Australia (being at the Certificate III and IV and Diploma level).

12.    The Tribunal advised that the issue in question was that the Departmental guidelines in its Procedures Advice Manual (PAM3) stated that ‘study in a … higher education institution’ was confined to tertiary, or University, level studies, and that vocational study – such as the applicant had undertaken in Australia – was excluded. The Tribunal further advised it was not bound to apply policy, and was of the view that a ‘higher education institution’ was not confined to a University and might include a non-University provider of post-secondary education. However, it was of the view that such an education provider would have to be listed in the Australian Department of Education and Training’s Tertiary Education Quality and Standards Agency (TEQSA) National Register. The Tribunal further stated that it had conducted a search of the National Register and it appeared that the applicant’s Australian educational provider, Nova Institute of Technology was not registered. The Tribunal advised that it was therefore of the view that the Nova Institute of Technology was not a ‘higher education institution’ for the purposes of the exemption set out in IMMI 17/058.

13.    The Tribunal stated that if it found this to be the case, then it would not be able to count the applicant’s Australian study towards the 5 years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English, and he therefore would not fall within the exemption category and could not meet cl.186.222(g) and therefore, cl.186.222 as a whole.

14.    On 17 October 2018, the applicant appointed a new registered migration agent, Ms Lena Hung, who requested access to the documents on the applicant’s file, and that the hearing be postponed in order to enable the agent to make submissions prior to a hearing.

15.    On 18 October 2018, the Tribunal received a submission with supporting documents from the applicant’s agent. In summary, the applicant’s the agent made the following submissions:

· the applicant was submitting further documents to show that he met cl.186.222(b) on the basis that he had completed at least 5 years of full-time study in a secondary school institute in which the medium of instruction was English;

·     the applicant completed his education at Sheela Rani Tangri D.A.V. Public School between the period of April 1998 and March 2006. Certificates of completion at this school had been provided. The medium of instruction was English, and the applicant had provided a letter from the school confirming this, an extract from the Central Board of Secondary Education which confirmed the school’s affiliation with the Board and its status as a Senior Secondary education provider. This extract also confirms that the medium of instruction at this institution was English;

·     therefore, it was submitted that the applicant had completed at least 5 years of education institutes for which all of the instruction was delivered in English;

·     it was relevant to provide a brief background first as to the Indian education system. The current Indian schooling system was generally understood to consist of 12 years of education distributed between Classes I – XII (or also known as ‘Standards’ or ‘Grades’), which in practice was comparable to the western K-12 sector model of education. The segmentation of the grading specified that primary school, which followed from kindergarten, was generally allocated to Classes/Standards I – V (1 – 5), middle school (which can also be referred to as Upper Primary School), is allocated for Standards VI – VIII (5 – 8), Secondary School for classes IX – X (9 – 10) and Higher Secondary for Standards XI – XII (11 – 12);

·     there were 2 qualification examinations in order to graduate from secondary school, one at the end of Standard X, and one at the end of Standard XII. Completion of the Standard XII examination entitles the student to the award of an All India Secondary School Examination Certificate, or equivalent.  This system was widely accepted to be the way in which the Indian schooling system is conducted, and is corroborated by a range of publicly available resources. For this case, the Tribunal was referred to an extract from the publication by the British Council, Indian School Education System, which summarised the Indian education system;

·     the relevance of providing this contextual background information was that, if an applicant’s completion of full-time study had to be at secondary level to fall within the exemption category, then what constituted ‘secondary level’ in the Indian education system had to be taken into account. If this was done, then it appeared that the applicant had only have undertaken 4 years of study in secondary education in India;

· however, it was submitted that this was an erroneous interpretation of how the exemption in cl.186.222(b) should be assessed. It was noted that the specific wording on which the cl.186.222(b) exemption was based required that the person seeking the exemption had to show at least ‘five years of study’ in a ‘secondary and/or higher education institution.’ There was no wording giving rise to an inference that that study be at a secondary or higher education level. It was submitted that if such an intention was meant, it would not have been difficult to draft the provision specifically to state this. That is, Parliament could have inserted ‘at a secondary and/or higher education level’ into the exemption provision, or could have omitted the word ‘institution’ and structured the provision so that it required a person to have completed ‘at least 5  years of full time secondary and/or higher education study;’   

·     instead, the provision was specifically drafted with the expression ‘in a secondary and/or higher education institution.’ Furthermore, if the interpretation to be adopted was that the education must be completed within a secondary education institute at a particular secondary level, this raised a further question of whether ‘secondary level’ meant as accepted in the relevant country in which the education was provided, or as accepted within the Australian education system;

·     in  Project Blue Sky v Australian Broadcasting Association [1998] HCA 28, the High Court held at [69] – [71] that: ‘The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument as a whole.” …  A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve the result which best gives effect to the purpose and language of those provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all statutory provisions… Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent;’

·     in Saeed v Minister for Immigration and Citizenship [2010] HCA 23, the majority of the High court stated at [31] that: ‘… it is necessary to keep in mind that when it is said the legislative “intention” is to be ascertained, “what is involved is the ‘intention manifested’ by the legislation.” Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning;’

·     the fundamental principle of interpretation of a provision needed to be in accordance with its manifest ordinary meaning as specified in the provision, and reliance on any external materials could not supersede the clear wording of the statute itself. Further, the favourable interpretation was the one that gave meaning to every word of the provision;

·     it was submitted that if an interpretation of the wording of IMMI 17/058 were adopted that meant an applicant could only count tuition at secondary school level within a secondary education institute, then this would render the word ‘institute’ superfluous. It was not a decision-maker’s place to infer a meaning that was not clearly stated in the legislation itself. Nevertheless, it was acknowledged that in some cases where a literal or grammatically correct meaning would lead to an absurd or manifestly unjust result, the Courts have some scope to consider reading the provision without taking the literal or solely grammatical meaning. However, it was submitted that this was not such a case;

· it was further submitted that there was a rational reason for reading the provision in a manner in which education within a secondary school institute alone would be sufficient to infer full-time study. The purpose of the exemption category prescribed in cl.186.222(b) was to provide assurance that an applicant was sufficiently skilled in English as to be ‘competent.’ The reason for selecting secondary and higher education institutions in particular was likely attributable to the understanding that education at these institutions would result in a higher standard of complexity in English such that it was likely to be considered at the ‘competent’ level;

·     the structure of different educational systems in different countries was necessarily diverse. For example, India’s education system separated or segmented classes into 4 distinct categories: primary, middle/upper-primary, secondary, and senior-secondary. This differed from the Australian educational model, which segmented grades 1 to 6 as primary school and years 7 to 12 as secondary or high school. Examples were given of different segmentation models used in the US, Japan, Hong Kong and Nepal;

·     therein lay the difficulty of assessing study at a ‘secondary’ level. Different countries had different classifications and labels for children of particular ages and grade level standards. What did appear to be uniform in most education systems throughout the world was a 12 year system with a distinct division between elementary/primary school and secondary or ‘high school’ education. But whether or not a segment of the final 6 to 7 years of education was classified as ‘middle school,’ ‘junior secondary,’ ‘upper primary,’ or merely forms a part of the totality of ‘secondary school’ differs extensively throughout the world;

·     despite this, it was submitted that in totality, educational systems remained largely comparable. Whether or not ‘middle school’ could be considered within the category of ‘secondary education’ was arguably a semantic point, rather than one of educational content. Students in India and Australia both complete 12 years of education in their respective models and there were equivalencies between their qualifications. The Tribunal was also referred to the grade placement equivalency standards from a number of international education institutes such as the International School of Kuala Lumpur, the NIST International School and the British International School (all of which offered the International Baccalaureate, or IB). The grade equivalency identified the grading of the Indian classes and standards to the same level as the Australian grading (that is, Standard VI in India was correlated to Grade 6 in Australia, Standard VII with Grade 7 and so on);

·     this indicated that, despite the different segmentation of the classes and standards within the Indian educational framework, the relative grading progression of a student’s education in the 12 years of school education was comparable for the most part between India and Australia;

·     this therefore raised the issue that, if a Standard VII student was considered to be studying at secondary level under the Australian educational system (year 7), and an Australian year 7 student would be considered to be studying at secondary level, then it would be unfair not to attribute the equivalent education of the Indian student at standard VII to a comparable standard, despite the fact that in India they would be categorised as ‘upper primary’ or ‘middle school’ level;

·     it was relevant to emphasise that the institutes at which the applicant studied were both secondary school institutes. They were recognised as such by the Central Board of Secondary Education. While it was true that the school at which the applicant completed most of his education, Sheela Rani Tangri D. A. V. Public School, offered more than education at ‘secondary’ level, the institute was officially and unambiguously a secondary school institute. The applicant had studied in secondary school institutions from 1998 to 2008 and had completed his All India Secondary School Examination Certificate, which was accepted as an equivalent qualification to a secondary school certificate under the Australian AQF framework. The applicant commenced his education at that institute in 1998 when he was in Standard III and completed Standard XII in 2008. This would have included his education in Middle School, Secondary and Upper Secondary, which together would account for more than 5 years of full-time education in a secondary institution for which the primary medium of instruction was English;

·     it was submitted that if the suggested interpretation of the exemption clause in IMMI 17/058 was accepted, then the course of education completed by the applicant exceeded 5 years within a secondary institution. This interpretation was not manifestly wrong, absurd or unfair, as the applicant – by completing his Secondary School Certificate – would have completed the equivalent of at least 6 years of secondary education under the Australian education system (that is, years 7 to 12);

·     it was submitted that the standard of education and English language skills would have remained the same, no matter how the ‘segmentation’ in the Indian system was broken down. Therefore, it would be illogical and unfair that the applicant should not be granted the exemption purely because of the different breakdown between grades/standards used in India, compared to Australia;

· it was certainly conceivable that the drafters of the provision were mindful of the varied segmentations in post-primary school education around the world. It might have been considered, and accepted, that secondary school institutes from certain countries include education within the scope of middle school, or junior secondary, depending on the designation used by the particular education system within a particular country. It should be inferred that an applicant’s education at a ‘secondary institute’ which includes education up to, and including, senior secondary education, would ensure that he or she obtained the requisite advanced level of English proficiency required to meet the exemption in cl.186.222(b);

· for instance, it would be arguably unfair to conclude that an applicant who might have spent a period of his formal education in the US for a period exceeding 5 years ending on completion of year 12, would not meet the cl.186.222(b) exemption because the technical of classification in the US of secondary school is years 9 to 12. In contrast, an equivalent student in Hong Kong in an English medium school for the same period would fall within the exemption because all 5 years were classified as secondary education in that country’s system. This would be in spite of the fact that completion of education in both these institutions would result in an equivalent qualification and a comparable progression of education (that is, the jump from year 8 to year 9 was unlikely to be much different in the US and in Hong Kong);

·     it was submitted that the legislators could well have considered and intended that the exemption would apply to students who are in jurisdictions which, although not completing education that is deemed ‘secondary’ education within that jurisdiction, have nevertheless completed a course of education offered by an institute that offers education at secondary level. If the student was enrolled at an institute which provided for secondary education in that country, then it was perfectly conceivable that the level of education completed at that institute could be expected to enable the student to engage sufficiently in English at a level that would meet the exemption. The study completed could include study in secondary institutes which might cover the particular jurisdiction’s version of ‘middle school’ or ‘junior secondary’, as the classification of what was secondary level in that country was less important than content and syllabus of learning within the years of education that have equivalent comparability to Australia’s version of the secondary school system;

·     furthermore, such an interpretation would be consistent with the established statutory interpretation principle of giving meaning to every word of the provision, as per the Project Blue Sky case by allowing the word ‘institute’ to have work to do.  It would also ‘achieve the result which best gives effect to the purpose and language of those provisions to achieve’ (also per Project Blue Sky) as the focus was on whether the applicant had completed a period of education at a level advanced enough to meet the English language exemption, rather than focussing on the less relevant issue of how ‘secondary’ is defined in different educational jurisdictions;

·     it was not intended to speculate that the intention of Parliament was clearly to accord such an interpretation to the provision. However, the rationale proposed indicated that it was not an irrational or absurd interpretation and/or one which would require decision-makers to import additional meaning into the provision where none existed. The provision was quite clear that education must be ‘in a secondary… institute.’ There were a range of variations which could have been used in the drafting if it had been intended that education must not only be completed at a secondary institute but must also have been completed at secondary level as it is understood within the jurisdiction of the particular country in question. However, no such wording was incorporated into the provision and it would be a mistake to import it or infer that it was required; and

·     it was further worth mentioning that the applicant did in fact demonstrate a competent level of English in his IELTS test undertaken on 12 April 2014. It was unfortunate that these results were obtained outside the 3 year period prior to the date of his visa application. However, the results did establish that the applicant’s cumulative studies had resulted in him having a high level of English proficiency, sufficient to meet the criteria for grant of the visa. The IELTS results therefore at the very least helped establish that the education completed by the applicant, including that completed at his secondary institution, was sufficient to enable him to meet the requirements for English for this visa.

16.    Amongst the documents provided in support were the following:

·     letter of completion certificate and confirmation of English as medium of instruction for the applicant from Sheela Rani Tangri D. A. V. Public School;

·     All India Secondary School Examination certificate for the applicant (completion of Standard/Class X) issued by the Central Board of Secondary Education;

·     letter of completion certificate and confirmation of English as medium of instruction for the applicant from Maharaja Ranjit Singh Police Public School;

·     All India Secondary School Examination certificate for the applicant (completion of Standard/Class XII) issued by the Central Board of Secondary Education;

·     Central Board of Secondary Education confirmation extracts of secondary school accreditation of Sheela Rani Tangri D. A. V. School and Maharaja Ranjit Singh Police Public School;

·     British Council extract on overview of school segmentation in India;

·     extract from ITS Education Asia article on school segmentation in Hong Kong;

·     extract from US Department of Education, International Affairs office information on school segmentation in the US;

·     extract from Educate Nepal on school segmentation in Nepal; and

·     information on grade equivalency standards between India and Australia.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

English language proficiency

18.    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 17/058: cl.186.222. For visa applications made before 1 July 2017, the level required is vocational English, and for visa applications made on or after 1 July 2017, the level required is competent English.

19.    ‘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.

20.    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.

21.    To satisfy cl.186.222(a), the applicant had, at the time of application, to have either sat a specified English test and obtained the specified scores, or had to hold a specified passport.  The applicant holds a valid Indian passport, and it is not disputed that this is not specified for the purposes of cl.186.222(a) in IMMI 15/005.

22.    As noted by the delegate, the applicant had undertaken an IELTS test on 22 April 2014. While this is a specified test listed in IMMI 15/005 for these purposes, it was undertaken more than 3 years prior to the date of the applicant’s subclass 186 visa application (made on 27 September 2017) and thus does not meet r.1.15C(1)(ba), which provides that any specified test must have been undertaken in the 3 years immediately before the day on which the application was made.

23. Accordingly, and as not disputed by the applicant, he cannot meet cl.186.222(a) and must therefore meet cl.186.222(b) if he is to meet cl.186.222 as a whole.

24.    This clause provides that a person is exempt from having to demonstrate competent English as per cl.186.222(a) if he or she falls within an exemption category specified in the relevant instrument in writing. For these purposes, the relevant instrument, IMMI 17/058, provides the following exemption only:

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.

25.    Based on the documentary evidence provided to the Tribunal by the applicant, the Tribunal is satisfied that the applicant has completed the following study:

·Certificate III in Painting and Decoration undertaken in Australia between 19 November 2012 and 22 December 2013 at Nova Institute of Technology  [approximately 13 months];

·Certificate IV in Business undertaken in Australia between 12 April 2010 and 8 October 2010 at Nova Institute of Technology [approximately 6 months];

·Certificate III in Printing and Graphic Arts undertaken in Australia between 13 April 2009 and 9 April 2010 at Nova Institute of Technology [approximately 12 months];

·Diploma of Management undertaken in Australia between 11 October 2010 and 8 April 2011 at Nova Institute of Technology [approximately 6 months];

·Secondary School Examination in 2006 and Senior School Certificate Examination in 2008, both at the Maharaja R S Police Public School in Phillaur, Jalandhar, India [approximately 3 years]; and

·Class III to Class X between 1998 and 2006 at the Sheela Rani Tangri DAV Public School in Bilga, Jalandhar, India) [approximately 8 years].

26.    From the documentary evidence provided, the Tribunal accepts that these studies were undertaken on a full time basis and that the medium of instruction was English for each of them (except for specific Hindi and Punjabi language subjects that the applicant studied in India for his secondary schooling. However, under Departmental policy – as set out in its Procedures Advice Manual, or PAM3 at section 6.10.2.2 of Subclass 186 (as at 30 September 2017, the edition in force at the time of the applicant’s visa application), ‘[t]he 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’).

Applicant’s Australian study

27.    An issue arises, however, due to another part of the same PAM3 section, in which it is stated that ‘[h]igher 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 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.’

28.    The applicant’s Australian qualifications are vocational level, rather than University/tertiary qualifications, given that his education provider was the Nova Institute of Technology and this is clearly not a university. This raises the issue of how ‘a higher education institution’ is defined, given that Departmental policy is not legally binding on the Tribunal, but nevertheless should generally be followed for reasons of consistency, where it is not in conflict with the underlying legislative provision(s).

29.    There is no legal definition in the Act or Regulations for a ‘higher education institution.’  According to the Macquarie Dictionary online, the term ‘higher education’ is defined to mean ‘education beyond secondary education’. It also relevantly 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.   

30.    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.  As also noted above, Departmental policy, in the form of PAM3, seeks to confine fulltime study at a ‘higher education institution’ to tertiary study or equivalent level, and to exclude vocational educational training courses where the course requirements comprise a mixture of class room tuition and on-the-job training.

1. However, as previously stated, 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.

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

3. In Australia, the Department of Education and Training (DET) is responsible on behalf of the Education Minister and the Commonwealth government for the development of systems for Australia in the following areas: child care, school education, higher education, skills and training (vocational education and training), and international education. In doing so, DET regulates the quality of services provided in each of these sectors and there is legislation requiring that providers of such services at all levels are registered. 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’); and

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

4. 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.

5. 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.

6. Therefore, unlike the guidelines in PAM3, in Australia, 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.

7. 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 (AQF). 

8. As a consequence, not every education institution that provides a post-secondary education service in Australia can claim to be a higher education institution. 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 and DET also maintains a list of higher education institutions. 

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

2. Accordingly, for the purposes of the exemption category set out for cl.186.222(b) in IMMI 17/058, 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. 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.

3. The Tribunal notes that, if the Departmental policy intention in relation to paragraph 186.222(b) was to limit the availability of the ‘higher education’ exemption in clause 12 of IMMI 17/058 to only applicants who had undertaken a Bachelor or higher level course of study at a university (or its equivalent), then a definition of ‘higher education institution’ specifying this could have been included in IMMI 17/058.

4. Accordingly, to the extent that the guidelines in PAM3 suggest that only study at university level at the undergraduate Bachelor or post-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 clause 12 of IMMI 17/058 and, therefore, there are cogent reasons to depart from it in this respect.

5. As set out in the letter dated 1 October 2018, the Tribunal has reviewed the TESQA National Register of higher education institutions and was unable to find an entry for Nova Institute of Technology. This was not disputed by the applicant or his agent. The Tribunal therefore finds that Nova Institute of Technology is not a higher education institution and the courses that the applicant undertook there cannot be counted when assessing him against clause 12 of IMMI 17/058 for the purposes of cl.186.222(b).

   Applicant’s Indian study

6. The initial information supplied by the applicant indicated that he undertook his secondary schooling in India between 2006 and 2008 at the Maharaja R S Police Public School, for which the medium of instruction was English. Subsequently, he provided additional evidence establishing that he undertook a further 8 years of education in India at the Sheela Rani Tangri DAV Public School between 1998 and 2006, for which the medium of instruction was English.

7. The applicant’s agent has argued that at least 5 years of this study in India was undertaken by the applicant at secondary institutions, and moreover, should be counted as being at secondary level, notwithstanding the fact that some years of it might be called something other than ‘secondary level’ or ‘secondary education’ in India. As best as the Tribunal can understand from her submissions, she argues that regardless of what formal term is used, the 5 years of education undertaken by the applicant in India between 2001 and 2006 were undertaken at secondary education institutions, regardless of the terminology used in the Indian education system to ‘segment’ the 6 years of post-primary, secondary education there, and therefore should be taken to satisfy IMMI 17/058 and thus cl.186.222(b).

8. The Tribunal is satisfied from the documentary evidence provided that both schools attended by the applicant in India are secondary education institutions, and that the medium of instruction at both schools was English. It is further satisfied that the applicant studied at these institutions between 1998 and 2008, from Standard III to Standard XII.

9. The Tribunal has considered the agent’s submission that it is enough to satisfy the education exemption in IMMI 17/058 that the education undertaken by the applicant was undertaken at recognised secondary institutions in India, as nothing in that provision specifies that the level of the education undertaken must be at secondary level also.  The Tribunal respectfully disagrees with this interpretation, as there is no logic to such an interpretation, as it would allow for even study at primary level to be included where the institution in question was a registered secondary institution because it also provided primary AND secondary education. Accordingly, the Tribunal is of the view that the education undertaken must also be at the secondary level. However, the Tribunal acknowledges that neither the wording of IMMI 17/058 nor the associated PAM3 guidelines indicates whether this means secondary level in the country in which the education was undertaken, or secondary level as it is understood in Australia.

10. An extract from the British Council publication, Indian School Education System: An Overview (December 2014) states that the education system is structured as follows:

    ·pre-school – education at this level is not compulsory…

    ·primary school – first to fifth standard/class/grade (for 6 to 10 year olds);

    ·middle school/upper primary school: sixth to eighth standard/class/grade 9 (for 11 to 14 year olds);

    ·secondary school: ninth and tenth standard/class/grade (for 14 to 16 year olds); and

    ·higher secondary or pre-university – 11^th and 12^th standard/class/grade (for 16 to 18 year olds).

11. The Australian Department of Education and Training’s Country Education profile for India provides the following information (as at August 2018):

    ·school education follows a pattern commonly known as ’10 + 2’ – 10 years of basic school and 2 years of senior secondary school;

    ·years 1 to 5 are classified as lower primary school, years 6 to 8 as upper primary school, years 9 to 10 as secondary education, and years 11 and 12 as senior secondary education;

    ·primary or elementary education begins at age 5 or 6. There are 8 years of schooling:

    o5 years of lower primary (Classes/Standards I to V)

    o3 years of higher primary (Classes/Standards VI to VIII)

    ·in some states, primary school ends at Class/Standard VII;

    ·secondary education, also known as lower secondary school or high school, begins at Class/Standard IX (VIII in some states), for students aged 13 to 14 (12 to 13 in some states) and lasts for 2 years (3 in some states);

    ·senior secondary education, usually referred to as 10+2, begins in Class/Standard XI for students aged 15 or 16. Like secondary education, both central and state agencies are involved in providing education, conducting examinations and awarding qualifications;

    ·

    ·senior secondary education is available in schools, 2-year colleges and university-affiliated colleges. Some of these are public institutions, while others are private;

    ·

    ·students take an external exam at the end of Class/Standard XII; and

    ·

    ·senior secondary education has two streams. The academic stream focuses on preparation for higher education. The vocational stream focuses on vocational training and higher vocational education.

12. The above information suggests that there is some slight variation within the Indian secondary school system as to whether ‘(upper) primary schooling’ ends at Standard/Class/Grade VII or VIII, seemingly depending on the state in which the education is undertaken. The Tribunal has been unable to find any information definitively establishing which is the case in the applicant’s state of Haryana.

13. By way of comparison, information on the Australian government’s Future Unlimited: Study in Australia provides that:

    School education is similar across all of Australia with only minor variations between states and territories. School education (primary and secondary) is compulsory between the ages of 6 and 16 (Year 1 to Year 9 or 10). School education is divided into:

    Primary School – runs for 7 or 8 years, starting at Kindergarten/Preparatory through to year 6 or 7;

    Secondary School – runs for 3 or 4 years, from years 7 or 8 to 10;

    Senior Secondary School – runs for 2 years, years 11 and 12.

    >

    The Tribunal notes that there also appears to be some slight variation within the Australian education system as to whether secondary schooling starts in year 7 or year 8.

14. Given both the Indian and Australian systems both involve some variations in relation to what year secondary schooling starts, the Tribunal considers it appropriate to take a generous approach to this question in the applicant’s case, and to accept that (upper) primary schooling for him ended in Standard VII, and that his secondary schooling started at Standard VIII and ran through to Standard XII inclusive. The Tribunal is satisfied that this constitutes 5 years of full time secondary study in India at secondary education institutions, in which the medium of instruction was English.

15. The Tribunal finds that the applicant therefore falls within the exemption in IMMI 17/058 as he 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.

16. Therefore, cl.186.222(b) is met, and the applicant meets cl.186.222 as a whole.

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

    DECISION

18. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.222 of Schedule 2 to the Regulations.

    Alison Mercer
    Member