Adhikari (Migration)

[2024] AATA 1203

Adhikari (Migration) [2024] AATA 1203 (10 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Umesh

Adhikari

Mrs Nilam Pandey

REPRESENTATIVE:  Mr Jay Ghose (MARN: 0745913)

CASE NUMBER:  2204804

HOME AFFAIRS REFERENCE(S):          BCC2021/1825727

MEMBER:Ian Berry

DATE:10 May 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visa.

Statement made on 10 May 2024 at 10:42am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Food Technologist – English language requirements – applicant unable to sit English tests – workplace injury – mental health issues – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.232

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 21 March 2022 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 22 September 2021. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the primary visa applicant (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Food Technologist ANZSCO 234212.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482. 232 of Schedule 2 to the Regulations because the applicant has not provided an English test is required under regulation 482.232.

4. The applicants appeared before the Tribunal on 28 November 2023 to give evidence and present arguments. The Tribunal only received oral evidence from the applicant.

5. The applicants were represented in relation to the review.  The applicant was inconclusive as to whether the representative was continuing to represent him.  He said that he was not told of the hearing by his representative but attended himself.  However, from a submission received in November 2023 it is reasonably clear the applicant continued to instruct the representative they chose for him not to be at the hearing.

6. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant has provided evidence of undertaking an English test as required by regulation for regulation 232(1).

   English language proficiency

8. Clause 482.232(1) requires the applicant to satisfy any language test requirements specified for the applicant in an instrument. Clause 482.232(2), which enables the Minister to require the applicant to demonstrate their English language proficiency in a specified manner, does not apply in this case.

9. The relevant instrument for cl 482.232(1) is IMMI 18/032. This instrument sets out the English language test requirements, as well as applicants who are exempt from these requirements.

10. The applicant is a citizen of Nepal having arrived in Australia in 2019 as a dependent of his then wife who was studying to be an accountant.  The applicant says he is divorced and has remarried a woman who is a kitchenhand.

11. He does not hold any passport other than his Nepalese issued passport.  There is no evidence before the Tribunal of the applicant having completed any full-time study in secondary education or a higher institution where the courses were taught in English.  There are no other exemption is upon which he would be applicable.

12. The applicant was or is in employment with Tahini Neri, where he is employed as a food technologist.  The reason for the uncertainty about his employment relates to an injury he had in his place of work on 16 November 2021 only months after his commencement of employment in May 2020.  He said that he had a test booked for 18 October 2021 at 1215 p.m. at PTE academic but could not attend.  It was because the test was cancelled by the test giver and he was given a credit for another test. 

13. The applicant described the injuries suffered at his place of work.  Apparently he was carrying a trolley or canister with a work colleague when the work colleague was off-balance and the applicant injured his shoulder.  He has been off work and receiving the Victorian WorkCover from the date of the injury to now.  He gave a varying account as to the injuries suffered.  Beside the normal injuries suffered in a shoulder injury, he says now that he is suffering from anxiety and depression which he says relates to the accident.  He also says these on reasonably substantial medication which is causing drowsiness all of which results in his inability to undertake an English test exam, though he says he still has a credit in-store for him to use that money to carry out the test.

14. The Tribunal questioned as to why he did not have a migration representative and there was no specific reason that he could explain his absence.  He did say that he knew about the hearing and did not find out about that hearing from his representative.  Using the applicant’s words he doesn’t know as to his relationship with his representative and said “I don’t know about him”.  Also he said “I have had no contact with him”.  However, the representative was able to provide a submission supporting the applicant’s case for the Tribunal decision be delayed until he has recovered from his injury.

15. The applicant is still in recovery mode from this accident and supplied to the Tribunal a number of documents all of which were read and considered and also in the light of the evidence he gave in relation to the continuing injury symptoms and the onset of anxiety and depression.  To have a full understanding of his physical and mental condition, the applicant was able to supply medical reports which were of some limited assistance:

    ·Pearson/PTE English test booking for 18 October 2021.

    ·Report dated 30 July 2023, from Doctor Vahid Masoumi of Medi7 Clayton medical practice stating “you mesh will be unable to sit his scheduled English test in early August 2023 because of impact of his medical condition and he will need to reschedule the test”.

    ·Report from Doctor Masoumi dated 22 July 2022 stating “this is to certify that Mr Umesh Adhikari will need extension for his English test due to impact of his medical condition”.

    ·Pearson English test scheduled for 27 June 2022.

    ·Pearson English test scheduled for 18 October 2021.

    ·Pearson English test scheduled for 18 October 2021, response from Pearson confirm his entitlement to a refund.

    ·Pearson English test booked for 18 October 2021

    ·Report dated 9 November 2023 from Action Rehab stating “this is a letter to advise that Umesh Adhikari has been receiving treatment at Action Rehab following his workplace accident which occurred on the 16 November 2021.  Umesh has been attending action rehab since that time to date.  Please use this letter as proof that Umesh has been under WorkCover and has been receiving treatment for his right upper limb injury.  Signed Sadie Davison occupational therapist.”

    ·Work safe payment/reimbursement from Allianz of the applicant receiving WorkCover payments for periods in November 2023, December 2022, and June 2023.

    ·Letter from Allianz dated 14 December 2021 of the applicant being accepted in respect of his claim.

    ·I-Med radiology report dated 17 February 2022 “traction injury right arm November 2021.  Right AC joint asymmetry.  Neuro pathetic pain.  Supraclavcular Tinel positive”.  The report then summarised injuries to the right shoulder and cervical spine stating as follows:

    “Findings

    Right Shoulder – fluid is seen in the in located biceps tendon sheath.  There is a trace of fluid in the sum a criminal-subdeltoid bursa and in the joint fluid collection.  Unfortunately there is no prior imaging available for review.  The AC joint appears degenerate with mild widening of the joint space.  A discrete tear is not represented in the rotor cuff.  The joint capsule is intact. Acromion down pointing.  Infraspinatus is intact.  Some scapular is preserved.  There is fraying of the anterior superior glenoid labrum most likely result of prior injury.

    Cervical Spine – there is normal cervical lordosis.  Craniovertebral junction is normal.  There is no cord signal abnormality.  No disc abnormality.  Spinal canal, neural exit for Aminah remain widely patent with no neural contact or compromise.  Nerves, roots and cords of the brachial plexus remain intact.

    Conclusion: low-grade synovitis, subacromial bursitis and biceps tendinosis.  Low-grade strain of the AC joint.”

    ·Report by Doctor Manish Jain, electronically signed 17 February 2022.  The report was accompanied by a report from Mr Gayan Padmasekara Orthopaedic surgeon which stated “traction injury to Right arm in November 2021.  Clinically R AC joint asymmetry.  Neuropathetic pain with this supraclavicular pain and Tinel’s positive.  See 7-8 dermatomal paraesthesia.  MRI to assess for nerve roots in C spine, brachial plexus and shoulder for AC joint injury”. 

    ·Melbourne Shoulder& Upper Limb (Mr Gayan Padmasekara Orthopaedic surgeon report dated 7 March 2022 and 11 March 2022 which states in summary that a procedure was carried out and there should be some guidance in respect of the medication being taken.

    ·Melbourne Shoulder & Upper Limb report 18 February 2022.

    ·Melbourne Shoulder & Upper Limb report 11 February 2022.  In summary, the doctor states

    “I suspect he may have 2 sites of injury.  The first could be a traction injury to his brachial plexus with his neuro pathetic type symptoms, and the 2nd being an injury to his AC joint.  I have asked him to have MRI scans of the cervical spine, brachial plexus and right shoulder.  I will review him following this to discuss the next steps in management”.

    ·Further report of Melbourne Shoulder & Upper Limb Orthopaedic Surgeon concerning cortisol treatment dated 18 February 2022.

    ·Report of Metro Pain Group Doctor Zeeshan Arain dated 16 February 2023 explaining the applicant has a traction injury to his right arm with a weight of approximately 70 kg.  Since then he has experienced pain, weakness and neuro pathetic pain to his neck, upper chest and back, shoulder girdle and arm.  MRI of neck, shoulder and brachial plexus were done without significant pathological findings.  He has tried physiotherapy and Nsaids.  Today he has significant weakness of his right upper limb in particular external rotatio, abduction and forward flexion of his shoulder.  He also extreme amounts of neuro pathetic features including allodynia and numbness.  His presentation fits with a brachial plexus traction injury and I have organised nerve conduction studies and Malvern Neurophysiotherapy for confirmation.  I also suggested we trial a neuropathology agent such as endep or Lyrica but he declined as he had concerns about the side-effects.

    ·Patient health summary with Medi7 Clayton ranging between 10 June 2022 and 22 July 2022.

    ·The Joint Physiotherapy report of Emily Irvine undated.

    ·Further reports from Action can rehab which are substantial in nature reviewing the progress of the applicant’s injury.

16. The applicant to has given the Tribunal every relevant medical report relating to the treatment, undertaken and recommendations from the attending specialists.  There is no evidence provided by the applicant of his having sought or received treatment from a psychologist or psychiatrist.  The concern for this Tribunal is that the applicant only raises the issue of not been able to attend an English test centre was because of his anxiety and depression.  He did not mention it until that time.  There are credibility issues of this applicant as to whether he really wishes to resolve the outstanding English test and examination.  From the evidence provided, the applicant may wish to continue receiving his Victorian WorkCover salary and, treatment.

17. The Tribunal asked the applicant as to when he would be in a position to be able to undertake the test.  He did not respond and it was left for the Tribunal to explain to the applicant that this matter could not go on indefinitely that there will reach a point where he will need to take a test.  Not at any time did either the applicant or his representative suggest any time noting that the applicant was in charge of all the medical reports and appointments which may have brought clarification as to how his injuries were healing.

18. While there has not been a report from a psychiatrist or psychologist, on 17 November 2023 the applicant’s general practitioner Mr Masoumi refers to:

    “Umesh has been suffering from adjustment disorder with mixed anxiety and depression secondary to his right upper limb nerve work injury.  His mental health condition depends usually on the pain level which gets worse with increasing pain and he still suffers from ongoing pain for which he has been seeing a pain management specialist and physiotherapist but still feeling nearly the same pain.”

19. It is noted that the Tribunal’s “response to hearing invitation”, this form was completed by the applicant on 16 November 2023.  He did not intend to call any witnesses, the applicant stated the representative will be participating at the hearing and gave his email and mobile telephone number.  It was raised by the Tribunal as to whether the representative will be attending and the applicant was not sure.  Asked as to whether he wished to proceed with the hearing and indicated to he wished to proceed.

    Applicant’s representatives submissions

20. By letter dated 21 November 2023, the applicant’s representative submits to the Tribunal a submission for the applicant.  It sets out the chronology on the first occasion when the applicant did not attend the PTE exam on 18 October 2021 (before his injury) which it is submitted was cancelled as a result of Covid 19.  The submission then proceeds to refer to the reports relating to the applicant’s injuries.  Noticeably absent is any report from a psychiatrist or a psychologist in relation to his inability be able to sit for an English test.  He ends the submission with the following:

    “Do you to these unforeseen and challenging circumstances he could not take the English test.  My client has a genuine intent to undertake the English test when this is physically possible by him.  Client has paid a voucher from PTE for a future booking to re--sent a test and attached evidence as E-8.
    I kindly request your compassionate consideration of his application, taking into account the extenuating circumstances surrounding his inability to fulfil the English proficiency test required within the stipulated timelines.”

21. This neither the applicant nor his representative were able to give any definitive response as to when the applicant could sit for the test.  There were no psychological reasons as to why he could not sit for the test other than having an anxiety or depression which had only been diagnosed by his general practitioner. It can only be taken in the absence of any report from a psychiatrist or psychologist, that the anxiety either had no direct connection or may have related to secondary matters of which have not been disclosed to the Tribunal.  What is concerning is the applicant is continuing to be receiving benefits from WorkCover without there being any timeline as to when he can take a test.  The applicant was advised by the Tribunal that a short adjournment would be appropriate for the test to be taken.  He was silent on any date or time within which should be able to take the test as is the same case as the representative who is unprepared to set a time.

22. The hearing this matter concluded on 28 November 2023 and in those months until now, the applicant has not provided any further medical evidence nor has any report been received from a psychiatrist or psychologist.  There has been no response from either the applicant or his representative as to when he had been a position to undertake a test.  Of course, such a submission would or should be accompanied by evidence from medical specialists.  No evidence has been received and so the Tribunal is unprepared to consider further time to pass without the applicant providing further evidence of this matter being adjourned to a time in the future.

23. For these reasons, the applicant does not meet the requirements of cl 482.232.

24. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

    Secondary applicant

25. In respect of the 2nd named applicant, not including the primary applicant, the Tribunal notes there is no information before it to suggest that 2nd named applicant meets the primary criteria for the grant of the visa. The 2nd named applicant applied for the visa because she was a member of the family unit of the applicant.  As the Tribunal has found that the applicant does not meet a criterion for the grant of the visa, the Tribunal must therefore affirm the decision in respect of the 2nd named applicant, as she was a member of the family unit of a person who did not satisfy the primary criteria for the visa.

    DECISION

26. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

    Ian Berry
    Member