1510918 (Migration)

[2016] AATA 3505

1510918 (Migration) [2016] AATA 3505 (15 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mahsin Miah Moksed Ali
Mrs Runa Akter Mahsin Miah
Miss Nodia Parvez
Mr Yamin Parvez

CASE NUMBER:  1510918

DIBP REFERENCE(S):  BCC2014/1228563

MEMBER:Carolyn Wilson

DATE:15 March 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 15 March 2016 at 2:56pm

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 Immigration on 22 July 2015 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 to the Department of Immigration for the visas on 16 May 2014. 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 Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Metal Fabricator. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.222 of Schedule 2 to the Regulations.

6. The applicant appeared before the Tribunal on 11 March 2016 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant had vocational English or is in a class of persons exempt from demonstrating vocational English.

   English language proficiency

10. At the time the visa application is made, an applicant in the Temporary Residence Transition (TRT) stream must either have vocational English, or be in a class of persons specified in legislative instrument IMMI12/059: cl.186.222.

11. ‘Vocational English’ is defined in r.1.15B of the Regulations. A person will have vocational English 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.

12. The relevant tests scores and passports for these purposes are specified in legislative instrument IMMI 15/005. For visa applications made on or after 1 July 2012 and before 23 November 2014, the applicant must have achieved an International English Language Test System (IELTS) test score of at least 5 for each of the 4 test components in an IELTS test; or a score of at least 'B' for each of the 4 test components in the Occupational English Test (OET). The specified passports are a passport of the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland.

13. The applicant holds a passport from Bangladesh.  He does not assert to have achieved the requisite language test scores, but provided the following IELTS scores for the tests he has undertaken:

Date	Listening	Reading	Writing	Speaking
7/11/2009	6	6	5	6
2/2/2013	4	3.5	3.5	6
11/5/2013	4.5	3	4	5.5

1. The classes of people who are exempt from the English language requirement in the TRT stream under the relevant instrument are: Ministers of Religion who have been nominated by a religious institution; people whose earnings will be at least equivalent to the current Australian Tax Office top individual income tax rate (over $180,000 a year); and people who have completed at least 5 years full-time study in a secondary and/or higher education institution where all the tuition was delivered in English.

2. The applicant has been nominated for a position as Metal Fabricator. The applicant is not a Minister of Religion. His earnings will not be at least equivalent to the current top individual income tax rate.  He does however assert that he is in an exempt class because he claims to have completed at least 5 years full-time study in a secondary and/or higher education institution where all the tuition was delivered in English.  That is, he claimed to have completed a Bachelor of Arts (Honours) in English and a Master of Arts in English at the America Bangladesh University.  Transcripts of his study were provided as evidence of this.

3. The Department made enquiries through its offshore post to verify the applicant’s qualifications.  As noted in the delegate’s decision[1]:

   ‘Departmental checks were conducted through department’s offshore post in Bangladesh to verify above qualifications of the visa applicant.  The issuing institution did not respond to the verifications check requests of the department.

   ‘A natural justice letter was sent to visa applicant via his migration agent to comment on the above adverse information.  The migration agent provided a statutory declaration form the visa applicant regarding the qualifications issued and a letter of endorsement issued by the registrar of the institution.

   ‘A subsequent site visit was conducted by the departmental officers reveal [sic] that no educational institution existed at the address specified on the educational certificates.  Several phone call attempts were made to the claimed institution to verify the above qualifications but they were all unsuccessful.’

   [1] A copy of the delegate’s decision was provided to the Tribunal by the applicant as part of his application for review.

4. The applicant submits the Department failed to have regard to his response to the second ‘natural justice letter’ and did not contact the Vice Chancellor Md Adil Hossain to verify his qualifications.

5. The Tribunal noticed there were significant gaps in the applicant’s education and work history as provided in his application to the Department,  That is, he had not declared any education prior to going to university in 1995 and he had not declared any work history prior to 2001.  This is despite the Form 80 specifically requiring applicants to declare ‘all education and qualifications since birth’ and ‘all employment and unemployment since birth’.

6. The applicant told the Tribunal he went to primary school from the ages of 6 to 11 and completed high school when he was around 17 or 18.  Given he was born in 1968, it appears he would have completed high school by 1986 at the latest.  He said he did unskilled work, such as selling or working for farmers, until he claims to have gone to University in 1995.  Following his completion of study, he claims he was unable to find employment in Bangladesh so he went to Singapore where he trained as a metal fabricator.

7. The Tribunal considered the applicant’s choice of a Masters in English to be an unusual fit with his work history.  The Tribunal asked the applicant why he chose the course, and what work he hoped to do after completing it.  The applicant said his friend told him he could find a better job if he had English. 

8. The Tribunal asked the applicant a number of specific questions about the university courses, but the applicant was unable to answer the questions with any degree of detail.   He could only speak generally about the number of subjects completed and all he could say about his course was that he learned about theory and the practical and cultural studies.  When he was asked what he did in the subject Phonetics and Phonology he said he couldn’t say because it was a long time ago.  The Tribunal asked him what phonetics was, but he could not answer the question.  When asked what works he had studied in the subject ‘Shakespeare’ he couldn’t say, except to say he liked the histories.  When asked what he’d done his thesis on for his Masters, he couldn’t say and nor did he know what a thesis was.  This is despite his transcript for the Masters including a subject ‘Thesis’ for which he achieved a grade of A-.   When asked why he had studied ‘20^th Century Feminist readings of Literature’ and what that subject was about, he was unable to answer. 

9. The applicant claims to have completed 5 years of study at university, culminating in a Master of Arts in English.  The transcripts provided showed he purportedly achieved high results throughout the 5 years, never achieving less than a B for any subject and achieving an overall grade of A- for both the Bachelor of Arts and Master of Arts.  The subjects in the transcript indicate the courses were not merely basic courses in the English language, but contained sophisticated subjects on theory and literature. For example, his Master’s program consisted of the following subjects:  Basic Readings in Feminist Literature Criticism; World Literature in Translation; Nationalism and Literature; Literature and Popular Media; 20^th Century Feminist Readings of Literacy; Gender Theories and Feminist Readings of Literature; Translation and the Study of Literature; Postmodernist American Literature From the 1960s to the present; Postmodernist British Literature from the 1980s to the present; Postmodernism and the Visual Media; and Thesis. 

10. The Tribunal does not accept someone as highly educated as the applicant claimed to be, could no longer recall what they did their thesis on, or even what a thesis was, or be unable to satisfactorily answer any of the questions put to him by the Tribunal on what he studied.  The Tribunal does not accept he was unable to answer such questions because it has been a long time since he studied or because he is tired from working hard in Australia.  The Tribunal also considers it unlikely someone who had been working in unskilled work for up to 10 years since completing high school would be able to achieve such high results at university from the start, unless they were an usually talented and driven person.  The applicant’s low scores in the IELTS tests and his inability to recall his past study do not suggest he is such a talented or driven person.  The Tribunal does not accept someone as highly educated as the applicant claimed to be, would achieve the relatively low scores in his IELTS tests.  The Tribunal considers someone educated to a Masters level in English would achieve higher scores.  Even noting it has been some years since the applicant studied, the Tribunal finds it difficult to understand how the applicant could achieve only a 3 for reading in his last IELTS test when he claims to have studied English literature to a Masters level and to have achieved a grade average of A-.  

11. The Tribunal raised these concerns with the applicant at the hearing.  His representative had no submissions to make on this issue, but maintained only their concern the applicant had not been treated fairly by the Department.  No further evidence has been provided to the Tribunal in response to the concern that the applicant appeared unable to answer questions about his alleged study, and no witnesses were put forward at the hearing.   In particular, the applicant has not asked the Tribunal to take evidence from Md Adil Hossain, and given the applicant’s inability to describe his past study to the Tribunal, the Tribunal sees little utility in making its own further enquiries.

12. After taking oral evidence from the applicant and noting his inability to answer questions about his past study, and after taking into account the difficulties the Department had in attempting to verify the qualifications, and the inconsistency between the high level of qualifications claimed and the applicant’s poor IELTS test results, the Tribunal concludes the applicant did not complete a Bachelor of Arts (Honours) in English and a Master of Arts in English at the America Bangladesh University.  The Tribunal finds he has not provided evidence that he completed at least 5 years full-time study in a secondary and/or higher education institution where all the tuition was delivered in English.

    Conclusion

13. The Tribunal finds the applicant has not completed at least 5 years full-time study in a secondary and/or higher education institution where all the tuition was delivered in English. The Tribunal finds that at time of application the applicant was not in the specified class of exempt persons, nor did he hold a specified passport.  The Tribunal finds he has not achieved the specified score in a specified language test in the three years prior to application. 

14. Therefore, cl.186.222 is not met.

15. The applicant 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.

    DECISION

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

    Carolyn Wilson
    Member