Yap (Migration)

[2019] AATA 4166

Yap (Migration) [2019] AATA 4166 (10 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bernard Yap

CASE NUMBER:  1910627

HOME AFFAIRS REFERENCE(S):          BCC2019/383740

MEMBER:Mr S Norman

DATE:10 September 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 10 September 2019 at 2:40pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Motor Mechanic (General) – English language proficiency – exemptions for Subclass 186 or 187 visa applicants – 5 years of full-time study where all tuition was delivered in English – 4 years of secondary education in the Philippines – distinction between vocational education training (VET) courses and apprenticeship system – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 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 8 April 2019 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 February 2019. 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 Motor Mechanic (General).

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 5 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Matthew Roberts (the applicant’s employer). The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.  

7. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency

9. On 7 February 2019, the applicant lodged an application for a Subclass 186 visa under the Temporary Residence Transition Stream. This related to an appointment as a Motor Mechanic (General) - (ANZSCO: 321211).

10. 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: cl.186.222. 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.

11. 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 immediately preceding the visa application and achieved a specified score; or

    ·holds a specified passport.

12. 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.

13. The relevant 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

    …..
    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;
    …..
    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.

14. Furthermore, IMMI 18/045 stated (in part):

    Part 2 - 10 Exemptions to ‘vocational English’ or ‘competent English’ requirement for applicants for a Subclass 186 visa or Subclass 187 visa

    For the purposes of paragraphs 186.222(b) and 187.222(b) of Schedule 2 to 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.

15. The delegate did not accept the applicant had provided evidence that he had competent English for having achieved a relevant score in a language test identified by the Minister in an instrument in writing. Accordingly, the delegate was not satisfied the applicant met cl.186.222(a) on this basis.  

16. As discussed at hearing, after considering all the evidence, and given the applicant had not provided an English language test result which established that he had competent English, the Tribunal is also not satisfied that he met cl.186.222(a) on this basis.

17. Next, the delegate noted the applicant held a Philippine passport and therefore, did not satisfy cl.186.222(a) on this basis. For the same reasons, the Tribunal is also satisfied the applicant does not meet cl.186.222(a) on this basis. 

18. Next, the delegate considered the exemption to competent English provided for in IMMI 18/045. Relevantly, and with his visa application, the applicant provided:

    ·     Certifications issued by the Cajidiocan National High School, Cajidiocan, Romblon, Philippines. This stated the applicant had graduated from a four-year secondary course and the medium of instruction was English, except for Filipino subjects (at hearing, the applicant explained the Filipino subjects were Tagalog language classes and social studies, but the language of instruction for the remainder was English) (and the Tribunal understands this might equate with English speaking students being taught French or Latin as part of their secondary schooling)    

    ·     Certifications issued by the Technical Education and Skills Development Authority, Philippines, which stated the applicant was enrolled at the Alantara national Trade School in Automotive Servicing NC II course, and that the medium of instruction was English.

    ·     The delegate noted the applicant also provided transcripts from the Automotive Servicing NC II course which stated the applicant had commenced this course on 8 May 2008 and finished on 6 February 2009 (nine months)

19. With respect to the Automotive Servicing NC II course, the delegate accepted the course was completed in nine months and this appeared to equate to an academic year. However, while the applicant provided evidence of five years study and provided certification that the courses were conducted in the English language, the delegate also considered whether the evidence demonstrated the applicant had undertaken their education at the required level to meet the English language exemption.

20. The delegate noted that higher education is understood to mean tertiary studies, including at University or equivalent level. Vocational education training courses (VET) are acceptable, however where such courses have course requirements which comprise a mixture of classroom tuition and on-the-job training, this cannot be accepted.

21. The delegate then said the certification issued by the Technical Education and Skills Development Authority, Philippines, appears to correlate (based on the transcript provided), more closely with a vocational education training course and as the course relates to a technical trade, it would be expected that this course comprised of a mixture of classroom tuition and on-the-job training. Accordingly, the nine-month training provided by the Automotive Servicing NC II course could not be accepted as evidence of having met the English language requirement. Therefore, the delegate was not satisfied the applicant met cl.186.222(b).

22. The delegate then said the applicant had not met cl.186.222(a) or (b); and that they had not met cl.186.222.

23. Next, the delegate considered cl.186.311 - member of the family unit (though none were listed on the merits review application). However, as none of the applicants satisfied the primary criteria for the grant of the visa, none were able to satisfy cl.186.311.

24. The delegate then refused to grant the applicant a Subclass 186 visa.

25. In the Tribunal hearing invitation letter dated 17 June 2019,[1] the Tribunal stated the following (in part):

    Please provide, prior to the hearing, evidence that you meet the English language requirements in relation to the visa which is the subject of the review.

    [1] Tribunal – folio 19.

26. Put briefly, by migration agent submissions dated 19 July 2019,[2] it was claimed the applicant met cl.186.222(b), as he had five years of secondary or higher education instructed in English. Amongst other things, and after quoting policy, the applicant’s relevant education was set out as follows:

    [2] Tribunal – from folio 35.

27. The Tribunal notes that secondary education in the Philippines is commonly conducted in English and has decided to accept this as true.[3] Therefore, the Tribunal accepts the applicant has undergone four years of full time secondary education in the Philippines where the language of instruction was English.

    [3] For instance, and though not an authoritative source, see Medium of instruction, Wikipedia, accessed 5 September 2019.

28. Regarding the subsequent claim to have 21 months of study in the course “Automotive Servicing NC II” the applicant submitted two letters:

    ·Republic of the Philippines, Technical Education and Skills Development Authority, Region IV-B (MIMAROPA), Alcantara National Trade School, Alcantara, Romblon, letter dated 8 April 2019. That stated the applicant had graduated from the Automotive Servicing NC II course. It was claimed the total average attendance for the course each week was 40 hours; that the applicant was enrolled from 8 May 2007 to 6 February 2009; that the course was broken up between classroom and workshop sessions

    ·a second letter from the same source (undated), advising that English language is used as the medium of instruction for all competencies in that institution

29. The agent then submitted that the evidence indicated the vocational training was for a period of one year and nine months, and the delegate’s finding the course was for nine months only was an error.

30. At hearing, the Tribunal said that subject to their comment, the following information would be the reason or part of the reason for affirming the decision under review. That information was that the Tribunal had attempted to contact the applicant’s claimed education provider by email dated 7 August 2019, and at the date of the hearing, no material response had been received. The Tribunal then advised that along with other possible adverse findings, this might be part of the reason the Tribunal may not accept the applicant’s Automotive Servicing NC II course constituted one year of full time study. The other concerns were that the Tribunal noted that evidence before it included:

    ·The > Downloadables webpage, in the ‘Training Regulations, Automotive Servicing NC II’ booklet it was stated inter alia that the normal training duration was 676 hours (which equates to approximately 19 ½ weeks of study at 35 hours per week; or approximately 17 weeks at 40 hours per week). Therefore, if the applicant attended the course for 21 academic months, the Tribunal said it may consider whether that attendance was part time (be that as it may, the Tribunal was able to identify online different time periods identified as ‘normal training duration’ for the course, so it has not been possible to refer to ‘normal training duration as 676 hours’ with certainty).

    ·Next, the Tribunal had evidence of high levels of academic document fraud from the Philippines,[4] and notwithstanding the evidence to the contrary, the documentary evidence provided by the applicant in support of his case may therefore not be accepted.

    ·Next, and as noted by the delegate, a mixture of classroom tuition and on-the-job training, cannot be accepted 

    [4] See Academic Fraud, Corruption, and Implications for Credential Assessment, December 10, 2017, Stefan Trines, Research Editor, WENR, World Education News + Reviews, accessed 5 September 2019.

31. At hearing, the applicant then said he had studied the claimed course for the period stated (as already noted herein, the evidence before the Tribunal indicated the language of instruction for such courses in the Philippines is English[5]).

    [5] For instance, and though not an authoritative source, see Medium of instruction, Wikipedia, accessed 5 September 2019.

32. That being said, regarding the timeframe, it was claimed at hearing that the length of time the course takes (as presented pursuant to TESDA standards) may have changed in the ten years since the applicant completed the course (and after looking at the online evidence, the Tribunal accepts this is possible). Furthermore, and amongst other things, the above ‘Training Regulations’ booklet also stated:

    The competency-based TVET system recognizes various types of delivery modes, both on and off-the-job as long as the learning is driven by the competency standards specified by the industry. The following training modalities may be adopted when designing training programs:

    • The dualized mode of training delivery is preferred and recommended. Thus programs would contain both in-school and in-industry training or fieldwork components. Details can be referred to the Dual Training System (DTS) Implementing Rules and Regulations. (page 99)

33. Other methods of delivery were also set out in the booklet (including something approximating an apprenticeship system), but given the above was the delivery mode described by the applicant independently at hearing, this is the mode (or something very similar) the Tribunal will accept the applicant was provided. This mode allows for (mainly morning) theoretical classroom study, (which was largely composed of the modules identified in the booklet, and in the applicant’s documentary evidence), as well as (mainly afternoon) practical study in the school workshops (something the applicant submitted at hearing).

34. Further, at hearing the applicant’s employer (the General Manager – who had known the applicant since 2016), explained that his business had approximately 20 work bays and employed around seven apprentices (at varying stages of their studies), and approximately 15 other workers (trained automotive engineers/mechanics etc) who were responsible for ensuring the work of their bays progresses to completion. The General Manager also said that his business had received complements from Toyota Australia for the work they had done, and he also said (words to the effect) that one of his very best automotive engineers/mechanics was the applicant. This was based on the quality of his work, his capacity to communicate (in English) with other workers etc, and his ‘team work’. The General Manager also explained that he had other workers who held visas in Australia, but this was the first occasion that he had attended the Tribunal in support of a visa application.

35. In the circumstances, the Tribunal does not propose to accept there is any material evidence of academic fraud in the applicant’s claimed qualifications (given his strong competence in the work). The Tribunal also proposes to give the applicant the benefit of the doubt, and will accept the applicant’s claimed education qualifications in Automotive Servicing NC II.[6] That means, I accept he received (at least) one years full time study where the language of instruction was in English, in completing the Automotive Servicing NC II course.

    [6] Tribunal – from 32.

36. Next, and regarding the concern expressed by the delegate that a mixture of classroom tuition and on-the-job training, cannot be accepted; the Tribunal notes that many vocational courses provide both theoretical and practical training as part of the course delivery (which the applicant claimed was the manner of his training). This is entirely different to (ie) an apprenticeship scheme where an apprentice may engage in one day per week theoretical work, and spend the remainder of the week conversing with his employer. Without contrary authority, the Tribunal therefore believes that where a student has received both theoretical training and practical experience provided by an education provider (as the Tribunal understands occurred in this case); then this is readily distinguishable from an apprenticeship system. Based on the evidence before it, including that which was discussed at hearing, the Tribunal will accept the mode of delivery of the Automotive Servicing NC II training received by the applicant, was not a mixture of classroom tuition and on-the-job training.

37. Therefore, and given the above findings, the Tribunal accepts that cl.186.222(b) is met.

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

    DECISION

39. 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