Wang (Migration)

[2022] AATA 4823

Wang (Migration) [2022] AATA 4823 (4 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Huaiwei Wang

REPRESENTATIVE:  Mr Wei Shu (MARN: 0103008)

CASE NUMBER:  1927876

HOME AFFAIRS REFERENCE(S):          BCC2018/1903226

MEMBER:Namoi Dougall

DATE:4 November 2022

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 of Schedule 2 to the Regulations.

Statement made on 04 November 2022 at 5:23pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Restaurant Manager – applicant has completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English – applicant meets the exemption category – English language proficiency requirement met – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 24 September 2019 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 May 2018. 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 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Crfe or Restaurant Manager

5. The delegate refused to grant the visas because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because the applicant did not have competent English and was not in a class of persons exempt from that requirement.

6. The applicants were represented in relation to the review.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the English language proficiency criteria is met as set out in cl 186.222.

English language proficiency

1. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have a defined level of English language proficiency, or be in a class of persons specified in legislative instrument IMMI 18/045: cl 186.222. For visa applications made 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.

2. ‘Vocational English’ is defined in reg 1.15B and ‘competent English’ is defined in reg 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.

3. The applicant in this case stated in the visa application that he had not undertaken an English test in the last 36 months and, therefore, had not provided evidence of having achieved the relevant scores in an English language test as required by the relevant instrument. The applicant provided to the Department an IELTS test report dated 27 July 2019 which is after the lodgement of his visa application. The applicant provided the Tribunal with an IELTS test report dated 8 June 2006 which is greater than 3 years prior to the lodgement of his visa application. Therefore, the applicant has not undertaken a specified language test in the three years preceding the visa application as required by the relevant instrument. Nor did the applicant hold a specified passport, so there is no evidence that he met the requirements of ‘competent English’.

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

5. The relevant legislative instrument (IMMI 18/045) refers in clause 10 to the following persons as exempt from the English requirement. For the purposes of paragraphs 186.222(b) or 187.222(b) of Schedule 2 of the Regulations, persons who:

   ·at the date of application for a Subclass 186 visa or a Subclass 187 visa, have completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English, are specified.

6. The term ‘higher education institution’ is not defined in IMMI 18/045. Nor is it defined in the Act or Regulations.

7. According to the Macquarie Dictionary online, the term ‘higher education’ means ‘education beyond secondary education’.[1] It also relevantly defines ‘institution’[2] to mean:

   1.     an organisation or establishment for the promotion of a particular object, usually one for some public, educational, charitable, or similar purpose

   2.     a building used for such work, as a college, school, hospital, mental hospital, or the like.

   3.     a concern engaged in some activity, as an insurance company.   

   [1] – Accessed 26 October 2022

   [2] See – Accessed 26 October 2022

8. As discussed below, the term ‘higher education provider’ is also relevant to the provision of higher education services in Australia and to the circumstances of this review. According to the Macquarie Dictionary online[3] the term ‘provider’ is relatively defined to mean:

   1.    someone who provides.

   2.    a person who supplies a means of support; breadwinner.

   3.    a company which provides access to a service: mobile phone provider…

   [3] – Accessed 26 October 2022

9. As such, the ordinary dictionary meaning of ‘higher education institution’ suggests that a ‘higher education institution’ is an organisation or establishment for the promotion of education or the building for such work. While a provider is just that a provider of higher educational services or someone who provides access to higher education.

1. The Department’s policy guidelines, as contained in its Procedures Advice Manual (PAM3, as at 1 November 2022) provide the following guidance:

.4.10.2.          RSMS exemption – 5 years full-time study in English3

Under policy, full-time study is considered to be:

·     in relation to secondary education, the standard number of contact hours that a student would undertake in the relevant country; and

·     in relation to higher education, the completion of at least three subjects in each semester or trimester of study.

Study completed in a higher education institution may include:

·     tertiary studies that lead to a higher education award as defined in the Tertiary Education Quality and Standards Agency Act 2011 (the TEQSA 2011 Act), including courses leading to awards/qualifications such as:

oa diploma, advanced diploma, associate degree, bachelor degree, graduate certificate, graduate diploma, masters degree or doctoral degree;

oa qualification covered by level 5, 6, 7, 8, 9 or 10 of the Australian Qualifications Framework;

oan award of a similar kind, or represented as being of a similar kind, to any of the above awards

·     Vocational Education and Training (VET) courses (within the meaning of the National Vocational Education and Training Regulator Act 2011’ as defined by the TEQSA 2011 Act).

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 any combination thereof…

English language courses undertaken for the specific purpose of preparing for an English language examination, preparing for entry to an English language learning institution, or obtaining a particular English language test score are not acceptable for the purpose of the English language exemption.

1. The Tertiary Education Quality and Standards Agency Act 2011 (Cth) (TEQSA Act) defines a ‘vocational and educational training course’ as meaning a VET course within the meaning of the National Vocational Education and Training Act 2011 (Cth) (NVET Act). NVET Act defines ‘VET course’ to mean:

   (a)the units of competency of a training package that is endorsed by the Ministerial Council; or

   (b)the units of competency or modules of a VET accredited course; or

   (c)the units of competency or modules of a course accredited by a VET Regulator of a non-referring State.

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 defines ‘Education’ to mean the Department administered by the Education Minister.

3. Currently, the Department of Education and the Department of Employment and Workplace Relations are responsible on behalf of the Commonwealth Government for the development of world-class systems for Australia in the following areas: child care; school education; higher education; skills and training (vocational education and training); and international education.

4. In doing so, these Departments have a role in ensuring the quality of services provided in each of these sectors and there is legislation in place to ensure that providers of such services at all levels are registered. Relevantly, for the purposes of the current application for review, 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)[4]; and

   ·     the Australian Skills Quality Authority (‘ASQA’), which is responsible for ensuring a high quality vocational education and training (‘VET’) sector.[5]

   [4] See - Accessed 26 October 2022

   [5] See Australian Skills Quality Authority (ASQA) accessed 25 October 2022

5. 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, as well as qualifications covered by level 5 to 10 under the Australian Qualifications Framework (AQF).

6. The Tribunal above referred to the ordinary dictionary meaning of ‘higher education’, ‘institution’ and ‘provider’ The word ‘provider’ in higher education provider is narrower in meaning than the word ‘institution’ primarily because it is defined in the TEQSA Act, but also because ‘institution’ means the promotion of the object of educational not just the provision of education. Object (d) in cl.2A of the NVET Act states

   (d)to provide a regulatory framework that encourages and promotes a VET system that is appropriate to meet Australia's social and economic needs for a highly educated and skilled population; and

1. The Tribunal notes that object (d) aligns with the definition of ‘institution’.

2. The National VET Act also had provisions for registering training providers as ‘registered training organisations’.[6] The details of those organisations registered by ASQA to provide VET services are available from the training.gov.au website[7], which is a joint initiative of the Australian and State and Territory governments.

   [6]  - Accessed 26 October 2022

   [7] - Accessed 26 October 2022

3. Information regarding those registered to provide education or training services to international students studying in Australia is available from the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) under the Educational Services for Overseas Students Act 2000.[8]

   [8] and - Accessed 26 October 2022

4. Accordingly, for the purposes of clause 10 in IMMI 18/045 the Tribunal has had regard to the ordinary dictionary meaning of the words ‘higher education’, ‘provider’ and ‘institution’, the definition of ‘Education’ in regulation 1.03 of the Migration Regulations, the responsibilities of the Department of Education and the Department of Employment and Workplace Relations, TEQSA and ASQA, as well as the policy guidelines in PAM3.

5. On the above, the Tribunal takes the view that from when the TEQSA Act came into effect, the term ‘higher education institution’ in Australia includes a higher education provider that is registered by TEQSA for this purpose. However, for registered training organisations, a registered training organisation registered by ASQA for the VET sector or registered under the equivalent State legislation for the period before the National Vet Act came into effect, is a higher education institution.

6. For study undertaken prior to the TEQSA Act coming into effect, particular ‘Part 3 – Registration’ of the TEQSA Act, which came into effect on 29 January 2012, there was no one national body responsible for the registration of higher education providers. Bills Digest no. 108-109 2010–11[9] for the TEQSA Bill stated as background for the Bill as follows:

   In 2008, the Rudd Labor Government undertook a wide‑ranging review of Australian higher education with Professor Denise Bradley as chair of the panel. The review—commonly referred to as the Bradley review—reported in December 2008.  The report stated ‘there is a strong case for a comprehensive and independent national regulatory body to carry out accreditation and quality audit functions in the higher education sector’ and that ‘current arrangements are complex, fragmented and inefficient.’ Among the 46 recommendations made by the Bradley review, was that the Australian Government ‘establish by 2010, after consultation with the States and Territories, a national regulatory body’.

   The need for a national body was driven by a number of existing factors and future developments. These included the growing complexity and diversity of tertiary education with provision through universities, private providers, TAFE institutes and dual sector institutes which provide both vocational and university courses. The increasing complexity and diversity has resulted in a need to improve consumer protection, risk management and to maintain standards in order to protect Australia’s reputation for quality provision.

   [9]  Tertiary Education Quality and Standards Agency Bill 2011 and Tertiary Education Quality and Standards Agency (Consequential Amendments and Transitional Provisions) Bill 2011 – Parliament of Australia (aph.gov.au) accessed 26 October 2022

7. Therefore, where study has been undertaken prior to 28 January 2012, there was no national body responsible for the registrations of education providers or courses and most of the responsibility lay with the States and Territories. In Australia nearly all young people must be in in formal education until they are 16 to 18 years of age. The age a young person can leave full time education varies from state to state. [10] Therefore, the Tribunal is satisfied that higher education is all post secondary education which is supported by the plain meaning of the term ‘higher education’ and its definition in the Macquarie Dictionary as referred to above.

   [10] My child doesn’t want to go back to school, what are their options? - AAPathways accessed 25 October 2022

8. The Tribunal will also consider as guidance whether the education provider subsequently became TEQSA registered and for education providers who were not subsequently registered, whether they offered courses which come within the definition of ‘higher education award’ set out in the TEQSA Act.

9. In relation to those education providers registered by AQSA, the training.gov.au website provides details of historical registrations of registered training organisations.

10. From the evidence on the Departmental and Tribunal files, the applicant has undertaken a variety of courses in Australia from November 2005 to July 2013 as listed in the table below. Further, the Tribunal having accessed the TEQSA and AQSA register, the Tribunal is satisfied that the education providers listed in the table below subsequently became registered as higher education institutions under TEQSA or AQSA.

Duration	College Name	Qualification	Conducted in English	Registered on TEQSA or ASQA	Course completion date	Duration of courses
14/11/05 – 20/1/06	Navitas English	Cert IV English for Academic Purposes	Yes	ASQA	20/1/6	2 months 7 days
23/3/06 – 31/3/08	University of Wollongong	Master of Science	YES	TESQA	31/3/08	2 years 1 week 1 day
2/2/09 – 15/12/10	Australian Institute of Commerce and Language	Advanced Diploma of Hospitality	YES	ASQA	18/12/10	1 year 10 months 2 weeks
13/5/11 – 1/11/11	Lloyds International College	Cert III Business	YES	ASQA	1/11/11	5 months 2 weeks 6 days
6/1/12 – 4/10/12	Lloyds International College	Cert IV Business	YES	ASQA	4/10/12	8 months 1 month 1 day
5/10/12 – 4/7/13	Lloyds International College	Diploma Management	YES	ASQA	4/7/13	9 months
TOTAL DURATION AT REGISTERED HIGHER EDUCATIONAL INSTITUTIONS						5 years 7 months 2 days

1. The above table does not include the applicant’s claimed study at Loftus TAFE of a Certificate III in Commercial Cookery as no Confirmation of Enrolment (CoE) was provided to the Tribunal and there is no CoE in Provider Registration and International Students Management System (PRISM). The table does not also include the applicant’s claimed study at the Australian Institute of Commerce and Language of a Advanced Diploma of Hospitality Management as no start date can be found on PRISM. However, excluding the two institutions from the assessment of the length of time the applicant has study at a higher education institution does not change the outcome of this matter.

2. On the above, the Tribunal is satisfied that the applicant has completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English as specified in item 10 of IMMI 18/045, therefore, the Tribunal finds that the applicant meets the exemption category specified for the purposes of cl.186.222(b).

1. 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

1. 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.

Namoi Dougall
Member