Stempler (Migration)

[2019] AATA 4303

Stempler (Migration) [2019] AATA 4303 (29 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yael Stempler

CASE NUMBER:  1815669

HOME AFFAIRS REFERENCE(S):          BCC2017/2813928

MEMBER:Mr S Norman

DATE:29 August 2019

PLACE OF DECISION:  Sydney

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(b) of Schedule 2 to the Regulations

Statement made on 29 August 2019 at 9:45am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Media Producer – satisfied the requirement of completing the equivalent of five years full time study in English – English language proficiency requirement met –decision under review remitted

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

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 22 May 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicant applied for the visa on 7 August 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 Media Producer.  

5. The delegate refused to grant the visa because the applicant did not meet cl.186.222 of Schedule 2 to the Regulations – English language proficiency.

6. The applicant appeared before the Tribunal on 15 August 2019 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency

8. On 7 August 2017, the applicant lodged an application for a Subclass 186 visa under the Temporary Residence Transition Stream. This related to an appointment as a Media Producer (excluding video) (ANZSCO: 212112).

9. 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 a legislative instrument. Clause 186.222 stated:

   186.222 

   At the time of application, the applicant:

   (a)  had competent English; or

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

10. For visa applications made before 1 July 2017 the level required is vocational English, and for visa applications made on or after 1 July 2017 the level required is competent English. ‘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.

11. In this instance, having regard to the date of visa application, the required level is competent English. Regulation 1.15C stated:

    (1)  A person has competent 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 (or whose spouse or de facto partner 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 competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

12. The tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005. That relevantly stated:

    5.  SPECIFY for applications lodged on or after 1 January 2015 tests, test scores and passports as follows:
    …..
    D - for paragraph 1.15C(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); or

    v. a Cambridge English: Advanced (CAE) test (also known as Certificate in Advanced English).

    E.- for paragraph 1.15C(1)(c) the following test scores:
    i. an IELTS test score of at least 6 in each of the four test components of listening, reading, writing and speaking; or
    …..

    F.- for subregulation 1.15C(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.

13. Furthermore, the relevant instrument for cl.186.222(b) is IMMI 17/058, which stated (in part):

    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.

14. The delegate noted the applicant had lodged the following evidence:

    ·     An IELTS certificate dated 19 July 2014 

    ·     An IELTS certificate dated 21 April 2018

    ·     Letters from SAE Institute confirming that the applicant enrolled to undertake a Bachelor of Film Production on 6 July 2009 and withdrew on 23 November 2009[1]

    ·     a Certificate IV in Screen and Media completed at NSW TAFE on 20 December 2010

    ·     a statement of enrolment from the University of NSW for the three-year period 2011 to 2014

    ·     several work references

    [1] Tribunal – folio 41.

15. However, as neither of the IELTS tests were conducted in the three-year period immediately before the day on which the Subclass 186 visa application was made (being 7 August 2017), the delegate was not satisfied the applicant met cl.186.222(a). Next, the delegate noted the Israeli citizen applicant was not in the class of persons that are exempt from the English language criteria. Therefore she did not satisfy cl.186.222(b). Therefore, the delegate was not satisfied the applicant met cl.186.222.

16. With the Tribunal the following was lodged:

    ·     IELTS test scores,[2] for a test undertaken on 2 August 2018

    ·     Listening  -                 7.5

    ·     Reading -                   6.5

    ·     Writing -   6.0

    ·     Speaking -                  8.5

    ·     Overall band score -   7.0

    ·     An Enrolment Statement from UNSW – for course work between 28 February 2011 and 29 February 2016[3] (the applicant was enrolled for three years)  

    ·     Letters from SAE Institute confirming that the applicant enrolled to undertake a Bachelor of Film Production on 6 July 2009 and withdrew on 23 November 2009[4]

    ·     a Certificate IV in Screen and Media completed at NSW TAFE on 20 December 2010[5]  

    [2] Tribunal – folio 39.

    [3] Tribunal – from folio 40.

    [4] Tribunal – from folio 42. 

    [5] Tribunal – folio 43 (reverse side).

17. At hearing, the Tribunal noted the IELTS tests were not conducted in the three years immediately before the day on which the visa application was made (being 7 August 2017 – and notwithstanding the applicant had clearly surpassed the minimum IELTS test results required); and based on the information then before it, I may not accept the applicant had 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 (no claim was made the Israeli citizen applicant held an ‘exempt passport’).

18. By migration agent submissions dated 14 August 2019, amongst other things, and for reasons set out therein, it was claimed that cl.186.222 was inconsistent with the enabling regulation found in cl.186.2. However, the Tribunal was not satisfied it was inconsistent, but merely a legitimate qualification of the so-called ‘enabling regulation’.

19. By earlier migration agent submission dated 6 August 2019, the agent also had made the following submissions:

    · The agent said that on 19 July 2014 the applicant was competent in English; that for reasons which appeared to be based on a Cambridge dictionary definition the “period of 12 months, especially from 1 January to 31 December” was said to represent a proper calculation period; and case law was referred to (High Court – 2010) – though same referred to cl.885.213, the agent thought it was relevant to cl.186.222

20. When discussed at hearing, and put briefly, the agent believed (words to the effect) the interpretation of the three year period lent itself to a broad interpretation. However, the Tribunal remains satisfied that its meaning is sufficiently clear, such that it should prefer its own contrary interpretation. The Tribunal also noted the aforementioned High Court authority considered whether the relevant “test has been conducted no more than 2 years before the day on which the application was lodged”, whereas the test in r.1.15C(1)(bb) (being the test to which the present proceedings are subject) was expressed differently, being that the “test was conducted in the 3 years immediately before the day on which the application was made”. In the circumstances, and as stated at hearing, the Tribunal may find (and now does find) that the High Court authority cited can be distinguished from the present case.

    ·     Second, the agent believed that “logical assumption” was relevant. It was claimed the IELTS test (undertaken on 19 July 2014 and on 21 April 2018) proved the visa applicant was competent in English.  

21. The Tribunal understands that a logical assumption is (in part) an idea that can be inferred, or identified, in a text without the writer stating it in an obvious way. However, and again, the Tribunal is satisfied that on a plain reading of r.1.15C(1)(bb), this submission must be discounted.

    ·     Third, the agent referred to 5 years of study. The agent then set out what they referred to as the total of five years and six months of coursework; which included:

    ·four years of study for a Bachelor of Fine Arts at the University of NSW - where semester one and two were studied in 2011 and 2013 and totalled a period of two and half years / semester two was also studied for six months in 2013 and 2015 at six months each / semester one was also studied in 2014 for six months

    ·A Bachelor of Film Production at a SAE Institute 2009 – six months full-time

    ·A Certificate IV in Screen and Media at TAFE NSW in 2010, which involve full-time study for one year

22. The visa applicant also believed their IELTS test should be adequate; and they believed they should be exempt from vocational English language ability as they had completed at least five years of full-time study in a secondary and/or higher education Institute where all tuition was delivered in English. The visa applicant also said that she had resided in Australia for 10 years, that she had been on a Student visa for over five of those years while studying in English. In support of same, the visa applicant provided the following:

23. The visa applicant then said they had not submitted this information previously as they believed their IELTS results alongside five years of being a Student visa holder in Australia would be sufficient. Further the visa applicant said her current position was as the Founding Director of Ocular Production, an Australian based media reduction company in which she hired and managed other Australians in the industry. She then referred to “providing crucial media content for some of Australia’s largest, internationally recognised artistic and commercial organisations, such as the iconic Sydney Opera house, Universal Music Australia, the Museum of Contemporary Art and many more”.

24. When discussed at hearing, the Tribunal was advised that the applicant had travelled to Australia in April 2009:

    ·     The applicant had then completed a full year Certificate IV in Screen and Media course in 2010. The Tribunal notes that with regards to Subclass 186 visas, PAM3 provides that ‘Vocational educational training courses where course requirements comprise a mixture of classroom tuition and on-the job training cannot be accepted’. Be that as it may, and after having considered this after the hearing, the Tribunal proposes to accept the Certificate IV in Screen and Media course constituted one year of full time study in English;

    ·     the applicant had then commenced her Bachelor of Fine Arts degree in February 2011. She then studied three subjects per semester for 7 semesters. The Tribunal understands that four subjects per semester in the Degree, constituted a full time load; however, that three subjects per semester, still qualified as a full time load. The Tribunal therefore accepts that this constituted 3 ½ years of full time study in English;

    ·     the applicant had then undertaken one or two further subjects in her three year degree in 2014/2015/2016,[6] however, as this was not full time study, the Tribunal does not understand it can consider same when assessing whether the applicant completed five years of full time study in English; and

    ·     that prior to the above studies, the applicant had completed one trimester of a Bachelor of Film Production at ‘SAE’. The Tribunal’s preliminary view was that this constituted four months of full time study given in English.

    [6] See Tribunal – from folio 40.

25. The Tribunal’s preliminary view was that this constituted over 4 ¾ years of full time study in English in Australia.  However, when considered further, the Tribunal does not understand that ‘full-time study’ is defined for present purposes. Therefore, the Tribunal believes it can be appropriate to consider the nature of a particular course; and a consideration of the nature of a particular course’s requirements and what they say in relation to the study load and what is or is not full time. The Tribunal also understands it is appropriate to consider the relevant course/s and their requirements to determine whether what is being asserted is equivalent to five years of full time study.

26. That being said, at and after the hearing, the Israeli citizen applicant submitted evidence from the SAE (where the applicant had completed one trimester in a Bachelor of Film Production degree). Importantly, at hearing (and in a letter from SAE lodged on 27 August 2019[7]), it was claimed the reason this was a one trimester attendance was that the degree then being undertaken by the applicant, was to be completed in two years (at an accelerated pace), instead of the usual three years. Therefore, one trimester in this course was the equivalent of one semester, if the course was being undertaken in the ordinary time-frame.  What this means is that the trimester completed by the applicant, may readily be interpreted as constituting completion of one semester (or a ½ year) of an academic qualification in Australia, and in English.

    [7] Tribunal – folio 108.

27. Taking that interpretation, the applicant may then be found to have satisfied the requirement of completing the equivalent of five years full time study in English:     

Certificate IV in Screen and Media course	2010	I year
Bachelor of Fine Arts degree in February	2011-2014	3 ½ years
Bachelor of Film Production at ‘SAE’	2009	½ year (equivalent)
Total	5 years

1. Accordingly, based on the evidence now before it, the Tribunal is satisfied the applicant has met cl.186.222(b). Therefore, cl.186.222 is met.

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

   DECISION

3. 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(b) of Schedule 2 to the Regulations

   Mr S Norman
   

   Member