THAVEESUK (Migration)

[2019] AATA 5160

THAVEESUK (Migration) [2019] AATA 5160 (20 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Korkiat Thaveesuk
Ms Napaphan Patpitak

CASE NUMBER:  1918883

HOME AFFAIRS REFERENCE(S):           BCC2019/1616923

MEMBER:Katie Malyon

DATE:20 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 20 November 2019 at 1:11 pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cook – English language proficiency – specified language test not undertaken – exemptions to English language requirements – five-year full-time study delivered in English – definition of ‘higher education institution’ – vocational education and training (VET) courses – immigration policy – Minister’s public interest powers – exceptional economic benefit – application of relevant legislation leads to unfair or unreasonable results – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Acts Interpretation Act 1901 (Cth), s 15AA
Legislation Act 2003 (Cth), s 13
Migration Act 1958 (Cth), ss 65, 351
Migration (IMMI 18/045: Exemptions to Skill, Age and English Language Requirements for Subclass 186 and Subclass 187 Visas) Instrument 2018 (Cth), cl 10
Migration Regulations 1994 (Cth), rr 1.03, 1.15C; 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 26 June 2019 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 1 April 2019.  At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. 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 3 alternative visa streams: the Temporary Residence Transition (TRT) stream; the Direct Entry stream; or, the Labour Agreement stream.

4. In the present case, the first named applicant - Thai national Mr Korkiat Thaveesuk - is seeking the visa in the TRT stream to work in the nominated position of Cook ANZSCO 351411 with his employer Thai Pothong Pty Ltd (the Company).

5. The delegate refused to grant the visas on the basis Mr Thaveesuk did not meet cl.186.222 of Schedule 2 to the Regulations because he did not demonstrate that he had, at the time of application, ‘competent English’ and no evidence was provided to demonstrate that he was in a class of persons exempt from the need to meet the ‘competent English’ language requirement as set out in the relevant legislative instrument IMMI 18/045.

   Background

6. On 20 September 2019, the Tribunal wrote to the applicants inviting them to appear before it to give evidence and present arguments. In its hearing invitation letter and pursuant to s.359A of the Act, the Tribunal also invited the applicants to comment on, or respond to, information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision to refuse their Subclass 186 visa applications. The Tribunal informed the applicants a review of their file suggests that, at the time the visa application was lodged, Mr Thaveesuk did not demonstrate he met the ‘competent English’ language requirement or that he was exempt from meeting that requirement: as a result, he cannot meet the criteria in cl.186.222 of Schedule 2 to the Regulations and, in these circumstances, the Tribunal must affirm the decision under review.

7. The Tribunal requested a response to its s.359A letter on or before 4 October 2019. It noted that a failure to respond or request additional time in which to respond may result in the Tribunal making a decision without taking any further action to obtain the applicants’ views on the information. The Tribunal also observed that, if evidence was provided that the English language requirements in cl.186.222(a) or 186.222(b) of Schedule 2 to the Regulations were met at the time of application, it may be able to make a favourable decision on the material before it consistent with s.360(2) of the Act.

8. On 4 October 2019, the applicants’ representative confirmed that both of the applicants would be attending the hearing with him. He also requested a short extension of time in which to formally respond to the Tribunal’s s.359A letter due to his need to undertake further research. The Tribunal agreed to the request.

9. Prior to the hearing, the representative forwarded a detailed submission addressing the issues raised in the Tribunal’s s.359A letter. The representative’s submission is discussed below.

   Hearing

10. The hearing was held on 9 October 2019.  Only Mr Thaveesuk appeared before the Tribunal.  The applicants were represented in relation to the review by their registered migration agent, Mr John Egan of Ajuria Lawyers, who also attended the hearing.  The hearing was conducted with the assistance of an interpreter in the Thai and English languages although the Tribunal notes Mr Thaveesuk used the interpreter on occasions only. 

11. After the hearing, the representative forwarded further submissions.  The representative’s post-hearing comments are discussed below.

12. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed. However, for reasons also outlined below, the Tribunal has decided to refer this matter to the Minister pursuant to s.351 of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether one of the applicants meets criteria in cl.186.222 of Schedule 2 to the Regulations.

    English language proficiency

14. Clause 186.222 of Schedule 2 to the Regulations requires that, at the time the visa application is made, an applicant in the TRT stream must either:

    (a)have ‘competent English’; or,

    (b)be in a class of persons specified in a legislative instrument.

    Does the applicant have ‘competent English’?

15. The term ‘competent English’ is defined in r.1.15C of the Regulations. A person will have ‘competent English’ if they either:

    ·undertook a specified language test in the 3 years preceding the visa application and achieved a specified score, or,

    ·holds a specified passport.

    The relevant tests, scores and passports for these purposes are specified in IMMI 15/005.  

16. At the hearing, Mr Thaveesuk confirmed that he had not undertaken an English language test in the 3 years prior to submitting his Subclass 186 visa application.  He added that, as he had already passed the English test for Subclass 457 visa purposes, he thought he did not need to support his application for permanent residence with English language test results and his representative did not advise him undertake an English language test. Mr Thaveesuk also confirmed that he holds a Thai passport only, not one of the 5 specified passports being the United Kingdom, United States of America, Canada, New Zealand and the Republic of Ireland.  

17. In the circumstances, the Tribunal finds Mr Thaveesuk does not have ‘competent English’ and so does not meet cl.182.222(a) of Schedule 2 to the Regulations.

    Is the applicant within a class of specified persons?

18. As both the Company’s nomination application and the applicants’ Subclass 186 visa application were lodged after 18 March 2018, the relevant legislative instrument for the purposes of cl.186.222(b) of Schedule 2 to the Regulations is IMMI 18/045. Clause 10 of the instrument specifies as persons who are exempt from the need to provide evidence of having ‘competent English’ are:

    Persons who have completed at least five years of full-time study in a secondary or higher education institution where all of the tuition was delivered in English (emphasis added).

19. Prior to the hearing, the representative provided the Tribunal with evidence that Mr Thaveesuk has completed the following courses whilst studying full-time during his 5½ years in Australia as the holder of multiple Student Subclass 572 visas from the period 3 February 2011 to 17 November 2016:

    ·Certificate III in Financial Services from 31 January 2011 to 29 July 2011 at the Sydney School of Business and Technology (SSBT);

    ·Diploma of Accounting from 1 August 2011 to 31 December 2012 at SSBT;

    ·Advanced Diploma of Accounting from 14 January 2013 to 31 May 2013 at SSBT;

    ·Certificate III in Hospitality (Commercial Cookery) from 15 July 2013 to 15 October 2014 at Evolution Hospitality Institute; and,

    ·Advanced Diploma of Hospitality from 1 January 2015 to 8 January 2017 at SSBT.

20. The Department’s PRISMS records confirm Mr Thaveesuk has completed these studies as claimed.  The Tribunal accepts that, in Australia, Mr Thaveesuk has completed at least 5 years of full-time study where all of the tuition was delivered in English. 

21. Mr Thaveesuk told the Tribunal that all of his secondary and higher education studies in Thailand were completed in the Thai language.  His Subclass 186 visa application indicates that he completed a Bachelor of Applied Science (Statistics) at King Mongkut’s Institute of Technology North Bangkok in March 2005.

22. Accordingly, the issue for close consideration is whether Mr Thaveesuk’s Australian studies have been undertaken at a ‘higher education institution’. 

23. During the course of the hearing, the Tribunal noted that immigration policy in relation to IMMI 18/045 effective September 2019 states:

    3.4.10.1 TRT English language proficiency exemptions

    Higher education is understood to mean tertiary studies as defined in the TEQSA Act 2011.  Relevant higher education awards/qualifications include:

    (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.

    Not acceptable for the purposes of the English language exemption are Certificate IV Diploma qualifications obtained as part of vocational education and training (VET) courses.

    Also not acceptable are English language courses undertaken for the specific purpose of obtaining an IELTS or equivalent score.

    The 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.

    The required total of 5 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.

24. The Tribunal observed that 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 provisions.

25. Further, the Tribunal also noted there is no legal definition in the Act or Regulations for the term ‘higher education institution’. According to the online Macquarie Dictionary, ‘higher education’ is defined to mean ‘education beyond secondary education’.  It also defines ‘institution’ to mean:

    1. an organisation or establishment for the promotion of a particular object, usually one for some public, educational, charitable, or similar purpose.
    2. a building used for such work, as a college, school, hospital, mental hospital, or the like.
    

    [1] a concern engaged in some activity, as an insurance company.[1]   

26. As such, the ordinary dictionary meaning of the term ‘higher education institution’ in

    
    

    IMMI 18/045 extracted above at para [18] suggests it is an institution which 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.  And, as indicated above at para [23], immigration policy seeks to confine ‘higher education’ to ‘tertiary studies’ as defined in the Tertiary Education Quality and Standards Agency Act 2011 (the TEQSA Act) and, relevantly, thereby exclude VET courses.

27. During the hearing the Tribunal observed that, while it accepts immigration policy is a valid starting point for assessing what constitutes study in a ‘higher education institution’, it is not finally determinative of the issue. It noted that, although the Act and Regulations do not define ‘higher education institution’ for the purposes of the exemption at cl.10 of IMMI18/045, r.1.03 of the Regulations defines ‘Education’ to mean the Department administered by the Education Minister and the term ‘Education Minister’ to mean the Minister administering the Australian Education Act 2013. 

28. The Commonwealth Department of Education and Training (DoET) is responsible on behalf of the Education Minister and the Australian Government for the development of systems in the following areas: early childhood education; school education (that is, primary school and secondary school); tertiary education including higher education as well as vocational and skills training; international education; and, research.[2]  In doing so, the DoET 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 for the purposes of this case 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 TEQSA Act and the Higher Education Standards Framework (Threshold Standards) 2015.  It is also responsible, relevantly, for administering the Higher Education Support Act 2003;[3] and,

    ·the Australian Skills Quality Authority (ASQA) which is responsible for ensuring a high quality VET sector including through streamlined and nationally consistent regulation of training providers and courses, and the communication of advice to the sector on improvements to the quality of vocational education and training.[4]  The ASQA was set up under the National Vocational Education and Training Regulator Act 2011 (the NVETR Act).

    [2]

    [3] >

    The DoET states that Australia’s higher education system comprises both public and private universities, Australian branches of overseas universities as well as other non-university higher education providers.[5]  The TEQSA website defines ‘higher education’ as consisting of awards spanning Australian Qualifications Framework (AQF) levels 5 – 10 which include: diplomas; advanced diploma; associate degrees; bachelor degrees (including honours); graduate certificates; graduate diploma; masters degrees; doctoral degrees and higher doctoral degrees.[6]  

    [5] >

    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. 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 the term ‘higher education institution’ used in cl.10 of IMMI18/045, s.5 of the TEQSA Act defines a ‘higher education provider’ to mean a corporation (including constitutional corporation) that offers or confers a ‘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 AQF other than an award offered or conferred for the completion of a VET course. As extracted above at para [23], immigration policy introduced in September 2019 has adopted this approach. The Tribunal notes in passing that, previously, policy narrowly interpreted cl.10 of IMMI 18/045 to include only Bachelor degrees and higher qualifications obtained from a university or its equivalent.

29. Based on this analysis, it is clear that not every education institution or organization which provides post-secondary education services in Australia can claim to be a ‘higher education institution’ as that term is used in IMMI 18/045.

30. As noted above, 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.[7]  Relevant for the purposes of this decision, neither SSBT nor Evolution Hospitality Institute are listed on the TEQSA website as a ‘higher education provider’.

    [7] >

    Similarly, ASQA is the national regulator for the VET sector under the NVETR Act and registers approved training providers as a ‘registered training organisation’ (RTO).  Details of organisations registered by ASQA to provide VET services are available from the ASQA’s website.  Relevantly, both SSBT[8] and Evolution Hospitality Institute[9] are listed on ASQA’s website as approved RTOs.  In passing, the Tribunal notes there are 83 dual-sector providers registered to deliver both VET and higher education courses.[10]

    [8] Tertiary Education Quality Standards Agency, Statistics Report on TEQSA Registered Higher Education Providers - October 2019, Melbourne, p.8; >

    This, then, raises the question of whether the Tribunal should accept that each of SSBT and Evolution Hospitality Institute are a ‘higher education institution’ such that Mr Thaveesuk’s 5½ years of full-time study at these 2 institutions should be recognised for the purposes of meeting cl.186.222(b) of Schedule 2 to the Regulations.

31. Invited to make comments on this issue during the course of the hearing, the representative referred to his submission lodged prior to the hearing and echoed his comments therein.  He stated that, in his opinion, a reference to TEQSA is not applicable because the text of

    
    

    IMMI 18/045 expressly refers to ‘a …higher education institution’: it does not refer to an institution registered with TEQSA. He adds that, had Parliament thought it necessary to define by reference to TEQSA or in any other way, would have been simple enough for it to do so as has been done throughout codification of the Act and Regulations. The extent to which rules are codified is important because where Parliament intended to define terms it has done so clearly, and often. This case, no definition was thought necessary because the words are clear having regard to the purpose.

1. In the representative’s opinion, the term ‘a …higher education institution’ in cl.10 of IMMI 18/045 should be given its plain or ordinary meaning consistent with the Acts Interpretation Act 1901 and s.13 of the Legislation Act 2003 which deals with the construction of legislative instruments.  The representative submits the plain meaning of the term ‘higher education institution’ in the context of the sentence ‘have completed at least 5 years of full-time study in a secondary or higher education institution where all tuition was delivered in English’ means an education institution that is higher than a secondary (school). As such, Mr Thaveesuk has completed 5 years of study at an educational institution that is higher than a secondary school and where all instruction was in English. This is consistent with the purpose of the Regulations in relation to the English language requirement whereas immigration policy is not.

2. The representative then makes submissions regarding the purpose of the English language requirement in cl.186.222 of Schedule 2 to the Regulations. This, he submits, is consistent with s.15AA of the Acts Interpretation Act 1901 which states that, when interpreting provisions of legislation, the interpretation that would best achieve the purpose or object of the legislation is to be preferred. The representative opines that English language proficiency is vital to a successful settlement in Australia and expanding immigrants opportunities as well as reducing the potential for workplace exploitation. The purpose of the English language requirement in cl.186.222 is to demonstrate that the applicant has proven skills and English language ability. The focus and intent of IMMI 18/045 is whether the applicant has completed a period of education at a level advanced enough to meet the English language exemption, in the context of a subsequent specified period of Australian work experience. The focus is should not be on how the term ‘higher education’ is defined outside of the Act.  

3. In addition, the representative refers to September 2006 Parliamentary Joint Standing Committee on Migration which undertook a review prior to the introduction of the Subclass 186 and 187 visas titled Negotiating the Maze: Review of arrangements for overseas skills recognition, upgrading and licensing.[11]  He notes Chapter 7 of that review highlights the importance of local work experience in the use of workplace based training programs - such as those undertaken by Mr Thaveesuk - is vital to improving prospects of successful settlement of migrants.  In addition, the representative notes the exemption is not available to Direct Entry applicants and, thereby, it recognises the value of Australian work experience and consequent evidence of immersion in Australian society and workplace culture for those eligible, like Mr Thaveesuk, to access the TRT stream. 

   [11]>

   Further, the representative states that policy’s attempt to interpret and defined the term ‘higher education institution‘ by reference to the TEQSA Act is neither consistent with the purpose of IMMI 18/045 and the TRT stream program.  Essentially, policy is saying that attending a VET sector course conducted in English or any course not classified according to the recent policy which references the TEQSA Act is inadequate to provide evidence of sufficient English language ability for an applicant to enter the Australian workplace and society as a permanent resident after completing a prerequisite period of skilled employment as the holder of a Subclass 457 (or a Subclass 482 visa).  He submits there is no evidence available to the Tribunal that would support such a conclusion. 

4. The representative also states that if application of the policy was correct, then a person who had studied 5 years in a secondary school in the Philippines or Nepal, for example, where English was purported to be the language of instruction but who spoke Tagalog or Nepalese at home and amongst their peers, would therefore meet the requirements of IMMI 18/045 yet someone who had studied for 5 years accredited course/s in English which were regulated by AQSA but which was not registered under the TEQSA Act would not meet the requirements.  He submits such a conclusion makes no sense and is contrary to the intention of the purpose of the TRT stream program. 

5. Invited to make further submissions following the hearing, the applicants’ representative noted a number of shortcomings in the Department’s policy statement.  He notes policy excludes VET courses but it does not identify if it refers to VET courses delivered under an apprenticeship type system or post-secondary courses delivered to international students in Australia through highly regulated CRICOS registered providers.  Further, he adds that policy does not indicate if the courses the subject of the exclusion may be conducted onshore or offshore and, in addition, it does not distinguish between trade courses and other VET courses. 

6. The representative comments on the standards of VET courses, the regulation by ASQA under the NVETR Act and the introduction of standards to RTOs in 2015. In addition, he considers the role and importance of the VET sector in the Australian economy and recent Government reforms to the sector. He also notes that national standards for the VET sector are agreed by the Australian government with State and Territory governments through COAG’s Industry and Skills Council.

7. In addition, the representative notes that VET courses in secondary schools are administered through various State education departments.  In NSW, the Department of Education includes VET courses in its Secondary Schools Curriculum up to year 12.[12]  The curriculum offers a Certificate II in Hospitality and a Certificate II in Kitchen Operations. 

   [12] >

   Subsequently, on 10 November 2019, the representative wrote to the Tribunal. He noted that cl.186.222(b) of the Regulations will be impacted in respect of visa applications lodged on or after 16 November 2019 by legislative instrument LIN 19/216 which removes the English language exemption for those who have studied for 5 years in a secondary or higher education institution where the language of instruction is English. The representative states this amendment is welcome as it provides clarity and it also provides further support to his submission that reference in policy to ‘higher education institutions under the TEQSA Act’ is beyond the scope of the Regulations.

   Consideration

8. For the purposes of considering the exemption set out in cl.186.222(b) of Schedule 2 to the Regulations, the Tribunal has had regard to: the Acts Interpretation Act 1901 and the Legislation Act 2003; the purpose or object of the Act and the Regulations; the text of IMMI 18/045; the ordinary dictionary meaning of the words ‘higher education’ and ‘institution’; the definition of ‘Education’ in r.1.03 of the Regulations; the responsibilities of the Commonwealth’s Minister for Education and the DoET; the roles and responsibilities of the TEQSA as well as those of ASQA; immigration policy; and, the applicants’ representative’s submissions.

9. Having regard to this evidence, the Tribunal is of the view that the term ‘higher education institution’ in cl.10 of IMMI 18/045 refers to an institution or organisation operated by a ‘higher education provider’ and which is registered by TEQSA for this purpose, rather than an education provider registered by ASQA for the VET sector.

10. Mr Thaveesuk’ spent 5½ years studying courses at SSBT and the Evolution Hospitality Institute, neither of which is registered with TEQSA. As such, his time studying for the multiple qualifications referred to above at para [19] at these institutions cannot be considered for the purposes of meeting requirements in cl.186.222(b) of Schedule 2 to the Regulations. Therefore, cl.186.222 of Schedule 2 to the Regulations is not met.

11. Mr Thaveesuk 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.

12. The application of Ms Napaphan Patpitak is based on her being a member of the family unit of a person who meets the primary criteria.  As Mr Thaveesuk does not meet the primary criteria, Ms Patpitak does not meet criteria for the grant of the visa.  Accordingly, the Department’s decision to refuse her application must also be affirmed.

    Is this an appropriate matter to refer to the Minister?

13. The Tribunal has considered whether the circumstances of this case warrant referral to the Minister under s.351 of the Act. The Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so consistent with s.351 of the Act.

14. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

15. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act.[13]  The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances.  The circumstances which may be unique or exceptional in this case include, relevantly:

    ·exceptional economic, scientific, cultural or other benefit would result from the review applicant being permitted to remain in Australia; and,

    ·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case (emphasis added).

    [13] >

    The Tribunal takes the issue of recommending referral of any matter to the Minister seriously.  It notes that the theme running throughout the relevant Ministerial Guidelines on this matter is that the case should involve unique or exceptional circumstances.  The Minister has also indicated cases where it would be inappropriate to bring a matter to his attention. 

16. The applicants’ representative strongly argued that study undertaken by Mr Thaveesuk falls within the exemption in cl.186.222(b) of Schedule 2 to the Regulations. However, as the Tribunal has found this not to be the case it has considered whether this is an appropriate case to refer to the Minister. The Tribunal has considered the applicants’ circumstances including, in particular, the Government’s recently announced $525 million initiatives in the VET sector including the establishment of the National Skills Commission and the National Careers Institute.[14]  On 24 October 2019, the Minister for Employment, Skills, Small and Family Business announced the appointment of Mr Adam Poynton as the National Skills Commissioner.[15]

    [14] >

    The factors which cumulatively engage the Tribunal’s consideration as to whether this is an appropriate case to refer to the Minister are as follows:

    ·the applicants have lived in Australia for 9½ years during which time they have contributed to the Australian economy and wider community through their study in Australia as well as their gainful employment;

    ·Mr Thaveesuk was approved for a Subclass 457 visa on 17 November 2016 on the basis of an English-language test to enable him to work in the nominated occupation of Cook ANZSCO 351411;

    ·Mr Thaveesuk has a favourable skills assessment from Trades Recognition Australia dated 27 September 2016 for his nominated occupation of Cook ANZSCO 351411;

    ·The occupation Cook ANZSCO 351411 is on the NSW Subclass 190 Priority killed Occupation List;[16] 

    [16] Thaveesuk has been employed with the Company for more than 8 years and is a highly valued employee who has proven he has the necessary English language ability to work productively with other staff;

    ·during the time of his employment with the Company, the business has grown substantially from a restaurant accommodating just 24 people to now accommodating 450 people;

    ·the Company’s business has been named as the Best Thai Restaurant in Sydney by multiple agencies including Trip Advisor[17] and Best in Au;[18]

    ·the nomination application made by Company’s pursuant to r.5.19(3) of the Regulations nominating Mr Thaveesuk for the role of Cook was approved on 19 June 2019;

    ·as advised by the Company’s representative, the Company currently employs 18 Australian permanent residents and citizens and has provided accredited Government Traineeships to 8 Australian permanent residents and citizen staff over the past 5 years;

    ·the purpose of the TRT stream is to provide a streamlined and simplified pathway to permanent residence via the permanent employer-sponsored visa program for eligible Subclass 457 visa holders.[19]  It facilitates employer nominated permanent residence for employees who have: an established ongoing employee/employer relationship; an ability to fill a position (as demonstrated, in this case, by Mr Thaveesuk’s employment for more than 8 years including 3 years as the holder of a Subclass 457 visa); and, integrated into their Australian workplace thereby avoiding the need for their employer to look elsewhere to fill the nominee’s position;

    ·on 28 November 2018, the Prime Minister announced an independent review of Australia’s VET sector to examine ways to deliver skilled workers for a stronger economy.[20]  The review was led by the Honourable Stephen Joyce, a former New Zealand Minister for Tertiary Education, Skills and Employment.  The final report Strengthening Skills – Expert Review of Australia’s Vocational Education and Training System (the Joyce Review) was delivered in March 2019. 

    Following consideration of the Joyce Review, the Australian Government has committed $525.3 million to strengthening the VET sector through its Delivering Skills for Today and Tomorrow.[21]  

    The Joyce Review makes 71 separate recommendations around its 6 point plan to deliver a stronger skills sector by: strengthening quality assurance; speeding up qualification development; simpler funding and skills matching; better careers information; clearer secondary school pathway; and greater access for disadvantaged Australians.  The review notes that successful execution of the “plan will elevate the status of VET to see it sit genuinely alongside higher education”;[22] and,  

    ·the evident inconsistency between the fact that year 11 and 12 students in NSW can complete a Certificate II in Hospitality and a Certificate II in Kitchen Operations as part of their High School Certificate (albeit other courses would also be required to be completed) yet an international student completing more senior CRICOS courses offered by RTO where the language of instruction must be English - such as an Advanced Diploma in Hospitality - cannot have their courses recognised unless the provider is registered with TEQSA.  There is only one higher education provider registered with TEQSA which offers an Advanced Diploma in Hospitality, namely, Adelaide based ICHM Pty Ltd.[23] 

    [17]

    [18] Explanatory Statement, Migration Amendment Regulation 2012 (No. 2) (Cth) F2012L01105, p.6

    [20] Department of Prime Minister and Cabinet, Strengthening Skills, Commonwealth of Australia, Canberra, p.2

    [23] >

    In the opinion of the Tribunal, the strict application of the law in the circumstances of this matter leads to an unfortunate outcome. Refusal of Mr Thaveesuk’s Subclass 186 visa application will deprive the Company of its ability to continue his skilled employment as a Cook and it will thereby lose a highly valued staff member. Termination of his employment is likely to have adverse consequences for the business having regard to Mr Thaveesuk’s pivotal role as a Cook who has been with the Company for more than 8 years. This would come at a time when the Government has recognised the need to strengthen the VET sector to see it sit genuinely alongside higher education and the impact of the recent introduction of LIN 19/216 referred to above at para [44] has brought clarity to the provisions in cl.186.222 of Schedule 2 to the Regulations.

17. Given the cost to the applicants, and vicariously to the Australian community by virtue of dealing with any further possible appeals, Bridging visa applications and responses, it may well be a reasonable consideration for the Minister to allow the applicants, in these circumstances, to remain in Australia.  That, however, would be a matter for the Minister to determine.

18. The Tribunal has considered the applicants’ case and the Ministerial guidelines relating to the discretionary power of referring the matter to the Minister.  The Tribunal considers that the applicants’ contribution to the Australian community and the benefit that would result from an remaining in Australia are circumstances which bring the matter within the Minister’s guidelines for consideration having regard to the matters referred to above.  Accordingly, the Tribunal will refer the matter to the Department for the Minister’s consideration.  The applicants may wish to lodge further supporting documentation with the Department addressing the unique and exceptional circumstances of this case. 

    DECISION

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

    Katie Malyon

    
    Member