1410544 (Migration)

[2015] AATA 3010

1410544 (Migration) [2015] AATA 3010 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  FUSION INDIA PTY LTD ATF FUSION INDIA

VISA APPLICANT:  Ravi Mukeshbhai PATEL

CASE NUMBER:  1410544

DIBP REFERENCE(S):  CLF2012/129496

MEMBER:Marten Kennedy

DATE:2 July 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for an Employer Nomination (Migrant) (Class AN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 119 (Regional Sponsored Migration Scheme) visa:

·cl.119.211(3)(b)(i) of Schedule 2 to the Regulations; and

·cl.119.211(3)(b)(iii) of Schedule 2 to the Regulations

Statement made on 02 July 2015 at 1:16pm

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 June 2014 to refuse to grant the visa applicant a Employer Nomination (Migrant) (Class AN) Subclass 119 visa under s.65 of the Migration Act 1958 (the Act).  The visa applicant applied for the visa on 13 June 2012.

2. The delegate refused to grant the visa on the basis that the visa applicant, Mr Patel, did not satisfy the requirements of cl.119.211(3)(b) of Schedule 2 to the Regulations.

3. Clause 119.211(3)(b) of Schedule 2 to the Regulations relevantly requires that, at the time of application, unless exceptional circumstances apply, the applicant has not turned 45, has functional English, and has a diploma…or higher qualification that is relevant to the appointment.

4. I am satisfied that at the time of application the applicant had not turned 45, and find the requirements of cl.119.211(3)(b)(i) are met.

5. I am not satisfied that at the time of application the applicant had functional English.

6. In this regard, section 5(2) of the Act provides that a person has functional English at a particular time if he or she passes a test that is approved in writing by the Minister and is conducted by a person or organisation approved by the Minister (s.5(2)(a)(i) and (ii)), or the person provides prescribed evidence of the person’s English language proficiency (s.5(2)(b)).

7. There are no approved tests, persons or organisations for s.5(2)(a).

8. For s.5(2)(b), evidence is prescribed by r.5.17.  Regulation 5.17 provides, for visa applications made before 1 July 2012, evidence that the person has a qualification or experience, or has attained test results, set out in column 2 of an item in Part 3 of Schedule 6, being a qualification, experience or test results in relation to which 10 points or more is specified in column 3 of that item; or evidence that the person has been awarded 10 or more points under Part 3 of Schedule 6 (including points awarded because of a determination by the Minister under sub-regulation 2.26(4)).

9. Relevantly to the evidence before me, item 6311 assigns 10 points where an applicant has achieved an IELTS average band score of at least 4.5 in a test conducted not more than 12 months before lodging the relevant application to migrate or at the time of processing the application.  The applicant has undertaken an IELTS test and obtained a score exceeding the requirement (folio 35 of the Departmental file), but it was undertaken on 4 December 2010 and more than 12 months before the date of application.  It does not therefore demonstrate functional English in accordance with the Regulations.

10. Also, item 6311A assigns 10 points where an applicant provides evidence that he or she has successfully completed in Australia at least 1 year of full time study towards a degree, higher degree, diploma or associate diploma at an institution where all instruction was conducted in English.  The applicant has produced evidence that he studied for a Diploma in Management and the instruction was in English, but it was not completed at the time of application and he has therefore not studied for at least 1 year at the time of application. The applicant’s Diploma of Management does not therefore serve to demonstrate functional English in accordance with the regulations, at the time of application.

11. I note that item 6311 envisages that an applicant may obtain the requisite IELTS test score ‘at the time of the processing of the relevant application to migrate’.  It is open therefore on remittal for the applicant to demonstrate functional English by undertaking a further IELTS test.  Given it is open to the applicant to meet cl.119.211(3)(b)(ii) in this way in accordance with the Regulations, it is not appropriate that I consider whether exceptional circumstances apply to disregard the requirement for functional English.  I will not therefore remit on the basis that cl.119.211(3)(b)(ii) is met.

12. I am not satisfied that at the time of application, the applicant held the requisite qualification.

13. The evidence before me demonstrates that the applicant obtained his Diploma of Management a few months after the date of application.  An issue for me to decide therefore is whether exceptional circumstances apply so as to disregard the requirement that he held his Diploma on 13 June 2012.

    Exceptional circumstances

14. There is no definition of ‘exceptional’ in the legislation and the ordinary non-technical meaning of the term should be applied, in the sense of unusual, atypical, or out of the ordinary.[1] Consideration is not limited to the particular applicant’s circumstances but may include, for example, any impact on the nominating business.[2]

    [1] An v MIAC (2007) 160 FCR 480 per Lindgren J at [7], per Emmett J at [82].

    [2] Jia v MIAC [2011] FMCA 422 (Burchardt FM, 16 June 2011) at 34.

15. Although I do not reproduce the policy in these reasons, I confirm that I have had regard to Departmental policy as set out in PAM3[3] in relation to ‘exceptional circumstances’.  I am conscious that I am not constrained by the examples of ‘exceptional circumstances’ set out therein.  The PAM3 examples are not binding on the Tribunal. 

    [3] PAM3: 15/5/2012 - 30/6/2012 >  Sch2 Visa 856 - Employer Nomination Scheme > EXCEPTIONAL CIRCUMSTANCES at [18.2].

16. I have had regard to the explanation offered in the Departmental policy as to the skill requirement set out at cl.119.211(3)(b)(iii).  I note that the fundamental premise is that the nominee seeks to fill the nominated position, and the visa applicant must demonstrate that they possess the skills required to perform the functions of the nominated positions.

17. While I am conscious that the requirements of cl.119.211(3)(b) are to be assessed at the time of application, and the applicant did not hold the required qualification at that time, I consider that by obtaining the qualification a few weeks thereafter it is clear that the applicant holds the required level of skill.  I consider that the fundamental premise of the requirements of cl.119.211(3)(b) as explained by the policy is not diminished in the applicant’s circumstances.  This is not a case, described in the policy as being contrary to the intent of the visa program, where the applicant holds an irrelevant qualification.  I consider these to be exceptional circumstances.

18. Furthermore, I have had regard to a statement of the Director of Fusion India Pty Ltd.  Mr Patel states that the visa applicant has been employed with his business since September 2011 as a restaurant manager.  He worked for the business while a student, and also as the holder of a subclass 457 visa.  I have noted Mr Patel’s evidence that the visa applicant has become an integral part of the team and his skills are valued.

19. I have also had regard to corroborating evidence demonstrating that the visa applicant has been paid as a manager since at least July 2013.

20. I have examined the visa applicant’s academic record in relation to his Diploma qualification.  The applicant now holds the requisite Diploma qualification in Management, and I note it is relevant to his appointment of Restaurant Manager.

21. I place weight on the Director of the company’s evidence as to the value of the applicant as a manager of his business, and I consider this is amply corroborated by the evidence produced to demonstrate the visa applicant has been with the business for a long period of time, and the evidence of his skills and qualifications.  Having regard to the Department’s policy, I note I am to have regard to whether the nominated position is critical to the employer’s operations and requires specialised skills.  I am satisfied that both circumstances are demonstrated in the evidence before me.

22. For these reasons, I find that exceptional circumstances apply so as to disregard the requirement of cl.119.211(3)(b)(iii).  In light of my findings as to cl.119.211(3)(b)(i) outlined above, it follows that I find that the requirements of cl.119.211(3)(b)(i) and (iii) are met, and will remit the matter to the Department on that basis.  As mentioned above, it remains for the applicant to demonstrate functional English in accordance with the applicable Regulations.

    DECISION

    The Tribunal remits the application for an Employer Nomination (Migrant) (Class AN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 119 (Regional Sponsored Migration Scheme) visa:

    ·cl.119.211(3)(b)(i) of Schedule 2 to the Regulations; and

    ·cl.119.211(3)(b)(iii) of Schedule 2 to the Regulations.

    Marten Kennedy
    Member